Jahr v. Steffen

• Decision Date: 02 October 1919
• Docket Number: 32219
• Parties: ADELIA JAHR, Appellant, v. AUGUST E. STEFFEN et al., Appellees
• Court: Iowa Supreme Court

174 N.W. 109

187 Iowa 168

ADELIA JAHR, Appellant, v. AUGUST E. STEFFEN et al., Appellees

No. 32219

Supreme Court of Iowa, Des Moines

October 2, 1919

Appeal from Scott District Court.--F. D. LETTS, Judge.

ACTION for damages consequent on an alleged assault and battery resulted in a directed verdict for defendants. The plaintiff appealed.

Reversed.

M. V Gannon and C. S. Roberts, for appellant.

Albert Hamann, for appellees.

LADD C. J. WEAVER, EVANS, GAYNOR, PRESTON, and STEVENS, JJ concur. SALINGER, J. (dissenting).

OPINION

LADD, C. J.

It appears that the defendant Steffen sued out a writ of replevin against plaintiff and her husband for the possession of certain orders; that the sheriff, in serving the writ, failed to procure the orders, and that a bench warrant was sued out which was placed in the hands of a constable, Khles, for service; that the defendant Lambach, an attorney, accompanied Khles in going to plaintiff's home to serve the warrant, where, according to the testimony of plaintiff, corroborated by her daughter, the defendant Lambach grabbed plaintiff by the hair and held her in a chair, whereupon her daughter "jumped on" and "scratched him in the face." She further testifies that he then threw the papers she had handed to him down, and, as plaintiff reached for them, he hit her a blow, and said, "Get there;" and that, owing to injuries suffered, she was taken to the hospital for treatment. This evidence was contradicted by Lambach. On motion, the court directed the jury to return a verdict for the defendants. This ruling seems to have been planted on an erroneous construction of the petition, as claiming damages consequent on an alleged conspiracy, rather than upon the injury alleged to have been done plaintiff. Conspiracy was alleged between defendants by way of inducement; but in pursuance of such conspiracy, it was also alleged that Lambach "did forcibly strike, beat, and throw down plaintiff, then in a sick and exhausted condition, and caused her such injury" that it was necessary for her to be treated at the hospital. The case is ruled by Young v. Gormley, 119 Iowa 546, 93 N.W. 565. In order to recover against both defendants, a combination or conspiracy must have been proven; but the evidence was insufficient for this purpose, and the court rightly directed a verdict for Steffen. But the evidence produced tended to show that Lambach assaulted and beat plaintiff, as alleged, and this was enough to carry the case to the jury as to him. As said in the case cited:

"In order to recover against all defendants, it is necessary to prove a combination or joint act of all. For this purpose, proof of conspiracy may become essential. But if it turns out that but one was concerned, recovery may be had against that one, the same as though he had been sued alone. If more than one jointly do the wrong, like recovery may be had, though conspiracy had not been established. In other words, the allegation of conspiracy in such cases is mere matter of inducement and evidence, the injury and damages being the gravamen of the action."

See Heisler v. Heisler, 151 Iowa 503, 131 N.W. 676; Dunshee v. Standard Oil Co., 165 Iowa 625, 146 N.W. 830; McCann v. Clark, 166 Iowa 705, 148 N.W. 1025; Hobbs v. Illinois Cent. R. Co., 171 Iowa 624, 152 N.W. 40. Hablichtel v. Yambert, 75 Iowa 539, 39 N.W. 877, is not in conflict with this conclusion.

Appellee urges that, as no error is assigned, the ruling on the motion for new trial is not reviewable. No separate assignment of error was made, but that complained of was stated at the beginning of what is denominated the brief and argument, as follows:

"The only error that can now be argued before the court is that attributable to the trial judge in directing a verdict at the close of plaintiff's testimony in favor of the defendants."

This clearly states the only ruling of which complaint is or could have been made; for the appeal was taken more than six months after judgment, but within that time after the motion for new trial had been ruled on. See Mueller Lumber Co. v. McCaffrey, 141 Iowa 730, 118 N.W. 903, to which decision the court adheres. It could not well have been stated in a more definite way, nor well have escaped attention where found. This so-called brief and argument was preceded by "Points and authorities;" following which are the words, "Assault and battery and conspiracy;" and thereunder are recited the rules of law applicable, and citation of decisions establishing them, precisely in harmony with our conclusion in the foregoing opinion. Indeed, the precise question involved was pointed out: i. e., whether, a wrong being charged to have been committed by several, in pursuance of a conspiracy, upon failure to prove conspiracy recovery may be had against one or more of those alleged to have conspired. The error complained of was apparent from a mere glance at the brief. The form prescribed by the rules for constructing the brief were not strictly pursued; but this is not essential, though greatly to be desired. Rules of procedure are largely directory, unless by their terms necessarily made otherwise, and all exacted is substantial compliance therewith. Substance is preferred to mere form; and, if the brief is such as to state or point out the particular rulings complained of in comprehensible language, in brief point or proposition, or by reference, direct or implied, to the assignment of error, this will suffice. The rules of practice ought not to be construed with technical nicety, but rather, with a view of facilitating the presentation of the issues of law or fact by litigants in such manner as that the court shall know the precise questions on which its opinion is sought. Such presentation cannot well be made by attorneys without sufficient study and analysis of the case on appeal to enable them to comprehend the rulings complained of, their bearing in the trial, and what should have been the rulings of the trial court; and, if this is done, little difficulty will be experienced in conveying the information so acquired in substantial compliance with the rules for the preparation of briefs. This is the object of such rules.

The first question which suggests itself is, Of what ruling or order does appellant complain? 2. Why does he complain? 3. What has the court done that violates the rule which should govern? 4. What should have been the court's ruling? 5. Why does counsel say that this should have been the ruling, and not that stated by the court? 6. What authority has counsel for his assertion that the court erred, and that the rule as stated by him is the true rule?

To comprehend any ruling, however, it is ordinarily necessary that the court have before it the issues upon which the cause was tried, a statement of the facts, as disclosed by the evidence, and the decision of the court upon the facts. Therefore, Rule 53 provides that:

"The brief of appellant shall contain a short and clear statement disclosing: First. The nature of the action. Second. What the issues were. Third. How the issues were decided, and what the judgment or decree was. Fourth. A brief and concise statement of so much of the facts as fully presents the errors and exceptions relied upon, referring to the pages and lines of the abstract. Fifth. The errors relied upon for a reversal. Following this, the brief shall contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them; and in citing cases, the names of parties must be given, with the book and page where reported. When textbooks are cited, the number or date of the edition must be stated, with the number of the volume and the page or section. No alleged error or point not contained in this statement of points shall be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing."

The rule following exacts substantially the same plan in preparing appellee's brief and the reply, and Rule 55 relates to the argument. It will be observed that Rule 53 closes with this significant sentence:

"No alleged error or point, not contained in this statement of points, shall be raised afterwards, either by reply brief, or oral or printed argument, or on petition for rehearing."

Impliedly this is saying that, if the alleged error or point is found in the statement of points or propositions, it may be discussed afterwards, and constitute the subject of review, but not otherwise. Though the errors relied on for reversal should be assigned under the fifth subdivision, yet, as seen, if these are stated in the brief points or propositions under separate headings, this will be enough. In other words, the rulings complained of should be stated under the fifth paragraph of this rule, and incorporated into the brief point or proposition, either by referring to the assignment of error by corresponding number, or by restating the same in said brief point or proposition under separate heading; and, if the latter course is pursued, the omission of a separate assignment of error will not prevent a review of the ruling complained of. As remarked in Wine v. Jones, 183 Iowa 1166, these rules merely exact "that a brief shall be prepared in orderly fashion: that is, by first stating (1) the particular rulings complained of; (2) what such ruling should have been, as contended by appellant, with citations claimed to state the law on the subject; and (3) elaboration of any of these by way of argument. If the numbers of error point or proposition and division of argument correspond, as intended by the rules, investigation is greatly facilitated. Under the rules,...