Hullhorst v. Tscharner

• Court: Nebraska Supreme Court
• Writing for the Court: COBB
• Citation: Hullhorst v. Tscharner, 15 Neb. 57, 17 N.W. 259 (Neb. 1883)
• Decision Date: 13 November 1883
• Parties: HULLHORST v. TSCHARNER.

15 Neb. 57

17 N.W. 259

HULLHORST

v.TSCHARNER.

Supreme Court of Nebraska.

Filed November 13, 1883.

Appeal from Platte county.Whitmoyer, Gerrard & Post and John G. Higgins, for plaintiff.

George G. Bowman and J. G. Reeder, for defendant.

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 personal 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 $50 paid by him 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, and 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 14 and 15 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 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 $50 on the said note, which was indorsed 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...