Hullhorst v. Scharner

• Decision Date: 13 November 1883
• Citation: 17 N.W. 259,15 Neb. 57
• Parties: C. G. A. HULLHORST, APPELLANT, v. CHRISTIAN T. SCHARNER, APPELLEE
• Court: Nebraska Supreme Court

17 N.W. 259

15 Neb. 57

C. G. A. HULLHORST, APPELLANT, v. CHRISTIAN T. SCHARNER, APPELLEE

Supreme Court of Nebraska

November 13, 1883

APPEAL from the district court of Platte county. Heard there before GASLIN, J., sitting for GEORGE W. POST, J.

Decree reversed.

M Whitmoyer and John G. Higgins, for appellant, cited Foshay v. Ferguson, 5 Hill, 154. Lord Coke, 2 Inst 843. Inhabitants of Whitefield v. Lowell Longfellow, 13 Me. 146. Richards v. Vanderpoel, 1 Daly, 71. Thurman v. Burt, 53 Ill. 129.

G. G Bowman and J. G. Reeder, for appellee, cited: Gates v. Shutts, 7 Mich. 129. Vandyke v. Davis, 2 Mich. 144. Weed v. Terry, 2 Douglass, 344. Kercheval v. Doty et al., 31 Wis. 476. Brooklyn Bank v. Waring, 2 Sanford, 2. Steele v. White, 2 Paige, 478. Simon v. Wilson, 3 Edwards, 36. Wehrinn v. Kuhn, 61 New York, 623. Thompson v. Nelson, 28 Ind. 431. Stewart v. Abrenfeldt, 4 Denio, 189. Moore v. Adams and Newkirk, 8 Ohio 372.

COBB, J. MAXWELL, J., concurred. LAKE, CH. J., dissenting.

OPINION

COBB, J.

This action was brought by the plaintiff in the court below, for the purpose of enjoining the negotiation and transfer of a certain note and mortgage, and for the delivery up and cancellation thereof for the reason that the same were procured by the defendant from the plaintiff without lawful consideration, but by means of duress and fear of prosecution, imprisonment, and disgrace upon the false charge of having made an indecent assault upon the infant daughter of the said defendant, and for the recovery of fifty dollars by him paid on said note, with interest thereon.

There was a trial and decree for the defendant, and the plaintiff brings the cause to this court by appeal.

It appears, from the testimony in the case, that the plaintiff was, at the date of the transactions material to this case, a preacher of the gospel, of the German Reformed sect, located at Columbus, in this state, and pastor of the German Reformed Church, at that place. That he had also paid some attention to medicine, had studied medicine in a medical college, and claimed to possess considerable skill in the science of medicine. That, while acting as pastor of the said church at Columbus for a period of some few years prior to the circumstances upon which this action is founded, he had at divers times administered medical treatment, after the homeopathic system, to certain members of his said congregation. That the defendant and his family were members of the said German Reformed Church and congregation at Columbus.

It further appears that, on or about the last day of July, 1881, the plaintiff was sent for by the defendant to see the daughter of the latter, Lizzie, a girl between fourteen and fifteen years of age, who was then sick. In response to the said call, the plaintiff visited the house of the defendant, where he found the daughter, Lizzie, suffering from a slight fever, headache, and other symptoms, which in the opinion of the plaintiff indicated suppressed menstruation. That after administering medicine to her, and calling to see her two or more times, he came to the conclusion, and so stated to the defendant and his wife, the mother of the girl, that the cause of the girl's suffering was that the menstrual function was coming on, but was prevented by a mechanical obstruction. That after full consultation with the two parents of the girl as to the necessity of making an examination to ascertain the presence of such mechanical obstruction--whether such examination should be made by the plaintiff, or a physician of the city be called in for that purpose, after receiving the consent of the defendant, and of the girl, and in the presence of and with the assistance of the girl's mother, he made what he called a digital examination to ascertain the existence of such mechanical obstruction to the menstrual flow. This examination did not prove satisfactory either to the plaintiff or to the parents of the girl; nor did the patient find any immediate relief. This examination was made on Saturday evening. The plaintiff continued to visit and administer to the patient until Monday evening, following, when he was notified, by a member of the family, that another physician had been called, and that his further services were dispensed with. During that week plaintiff was informed in various ways that the defendant was greatly dissatisfied with his treatment of the girl, and that he, together with other parties, was engaged, with considerable success, in fomenting an excitement against him for having subjected the girl to said examination, and on the following Monday he went to the office of the attorney of the defendant, and executed the note and mortgage referred to. And also then and there paid to the defendant, or his attorney, fifty dollars on the said note, which was endorsed thereon.

The plaintiff claims, and so testifies, that he was induced to make the note and mortgage solely by reason of the threat of the defendant to send him to the penitentiary for what he had done to the girl, and his fear that such threat would be carried into execution, and his dread of the disgrace to himself and family, and the society under his pastoral care which would follow such imprisonment. This is denied by the defendant, who alleges that the note and mortgage were given in settlement and compromise of a civil action for damages which he was about to commence against the plaintiff for malpractice in the treatment of his said daughter. The question for this court to decide is, whether the decree of the court below is sustained by the testimony. After a careful examination of the testimony, and fully allowing all proper weight to the double presumption, which must be...