Johnson v. Johnson

• Decision Date: 05 March 1908
• Docket Number: 15,093
• Citation: 115 N.W. 323,81 Neb. 60
• Parties: NORA JOHNSON, APPELLEE, v. GARRETT JOHNSON, APPELLANT
• Court: Nebraska Supreme Court

115 N.W. 323

81 Neb. 60

NORA JOHNSON, APPELLEE, v. GARRETT JOHNSON, APPELLANT

No. 15,093

Supreme Court of Nebraska

March 5, 1908

APPEAL from the district court for Lancaster county: EDWARD P HOLMES, JUDGE. Reversed.

REVERSED.

John M Stewart and D. H. McClenahan, for appellant.

Berge Morning & Ledwith, contra.

EPPERSON, C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C. J.

Omitting the title, signature, and verification, we copy in full the petition filed in the district court, as follows: "For cause of action against the defendant, plaintiff says that on the 8th day of August, 1905, between the hours of 1 o'clock and 4 o'clock P. M., at her home near Panama, Lancaster county, Nebraska, the defendant Garrett Johnson, unlawfully, wilfully, and maliciously assaulted and beat plaintiff, with intent then and there to have unlawful intercourse with her against her will, and did bruise, would and injure her, thereby causing her to become and remain sick and in bad health from thence hitherto, and to suffer great pain of mind and body, and as a result of said assault the plaintiff's health has been permanently impaired and injured, all to plaintiff's damage in the sum of ten thousand ($ 10,000) dollars. Wherefore plaintiff prays judgment against defendant in the sum of ten thousand ($ 10,000) dollars and costs of suit." The answer was a general denial. Upon the trial the plaintiff obtained a verdict and judgment for $ 2,000. Defendant appeals.

Instruction No. 5 given to the jury is as follows: "If, therefore, under this rule, you find and believe that the defendant, Garrett Johnson, on the 8th day of August, 1905, at the time and place by the plaintiff alleged, did unlawfully, wilfully, and maliciously assault the plaintiff, with intent then and there to have unlawful intercourse with her against her will, and did bruise, wound and injure her, causing her to become and remain sick and in bad health, and to suffer pain of mind and body, thereby causing the plaintiff's health to be permanently impaired and injured, then and in that event the plaintiff would be entitled to a verdict at your hands; and such verdict should be arrived at under the rule that the court gives you herein." Indorsed: "Given. E. P. H., Judge. Excepted to by defendant." This is objected to because it permits the jury to consider and recompense plaintiff for permanent injuries, when there is no evidence showing such damages. We have examined the evidence, and are convinced that all reference to a permanent injury should have been omitted from the instruction. In the absence of error, courts are reluctant to disturb a verdict for injuries inflicted by an assault, unless it appears that the jury were swayed by prejudice or passion, or were guided by an improper rule as to the measure of recovery.

There is no evidence in the case at bar from which the jury could reasonably have inferred that the injury was of a permanent character. Defendant owns and operates a meat market in the village of Panama. Plaintiff's husband is the defendant's brother, and was in his employ at the time of the alleged assault. Plaintiff testified that on August 8 1905, while her husband was absent, defendant came to her home, about 80 rods from the village of Panama, and in the presence of her three year old child committed the assault alleged. It is unnecessary to repeat the details related by the plaintiff. She testified that by this assault she received bodily injuries, that her wrists and arms were black and blue; that her back was bruised, and since then she has been weak and nervous, and not a bit well. She speaks of restless nights, which she attributes to the memory of the defendant's assault upon her; that at the time of the trial her health had improved, but she still suffered with her back and with nervousness. Two months prior to the trial in the lower court she and her husband moved to Panama and engaged in the hotel business. Since then she had a girl to assist her in the work. Prior to that time she did all her housework and the family washing and ironing, which had to be done; her husband helping her about the housework when she was unable to attend to it. Plaintiff's husband corroborated plaintiff as to the condition of her wrists and back, and testified that for two days after the assault she was confined to her bed, unable to walk, and was nervous; that he procured medicine for her from a local physician, whom he told that plaintiff had nervous headaches and nervous spells, and her back hurt her. He further testified that at the time of the trial, 15 months later, her health was better, but she was not as well as she was before the assault; that her trouble seemed to be in her back. Plaintiff and her husband were the only witnesses who testified regarding the injuries. It does not appear that a physician was called to see her, or that she ever consulted a physician relative to the matter. It is significant that after the assault, and during the two days she was helpless, none of her neighbors or friends visited her, or, if they did, it is remarkable that they were not called to testify as to her condition. On the day following the assault her husband, according to his own testimony, called on defendant and talked or quarreled with him over the assault; and in the same forenoon he told his father about it at the latter's place of business. Moreover, at noon on the same day, while his wife was at home, confined to her bed, unable to walk, the husband took dinner with his father, who lived in the village, and at least a quarter of a mile from plaintiff's home. Plaintiff herself testified that previous to the assault she had had "some pretty bad health." This may readily be believed, when we take into consideration...