Jolly v. Doolittle

• Decision Date: 15 December 1914
• Docket Number: 29788
• Citation: Jolly v. Doolittle, 169 Iowa 658, 149 N.W. 890 (Iowa 1914)
• Parties: A. T. JOLLY, Appellee, v. J. E. DOOLITTLE et al
• Court: Iowa Supreme Court

149 N.W. 890

169 Iowa 658

A. T. JOLLY, Appellee, v. J. E. DOOLITTLE et al

No. 29788

Supreme Court of Iowa, Des Moines

December 15, 1914

REHEARING DENIED MONDAY, MARCH 22, 1915.

Appeal from Howard District Court.--HON. W. J. SPRINGER, Judge.

ACTION at law to recover damages for assaults committed upon plaintiff and his wife.Defense, general denials and pleas of self-defense.Trial to a jury; verdict for plaintiff against both defendants in the sum of $ 1,500.00, which was reduced by the court to $ 750.00; and judgment for the latter amount.Defendants appeal.--Reversed and Remanded.

Reversed and Remanded.

Reed & Pergler, for Jones and Doolittle, Executors

E. A Church, for Mrs. M. B. Doolittle, appellants

John McCook and Frank Sayre, for appellee.

DEEMERJ. LADD, C. J., GAYNOR and WITHROW, JJ., concur.

OPINION

DEEMER, J.

The petition is in two counts.The first is for an alleged assault committed by Mrs. Doolittle upon plaintiff's wife, which resulted in the death of the latter; and the second is for alleged assaults committed by Amos and Mark Doolittle, minor sons of the defendants, upon the plaintiff himself.It is also alleged that said assaults were part of one general scheme; that they were instigated by both defendants, and that defendants conspired and confederated together, and with their sons, to commit the said assaults; and that the same were a part of one general scheme to force plaintiff and his wife to leave the premises upon which they were then living, belonging to M. B. Doolittle; and that the said conspiracy was criminal and unlawful, and for unjustifiable ends.

Defendants interposed separate defenses, and each denied the allegations of the petition, pleaded that what was done was in self-defense, and also specifically denied the charge of conspiracy, etc., and further pleaded that the death of plaintiff's wife was due to other causes than the alleged assaults.DefendantM. B. Doolittle pleaded in mitigation of damages that whatever injury was inflicted upon either plaintiff or his wife was due to extreme provocation, and such conduct on the part of plaintiff and his wife as to bring about the alleged assaults.Evidence was adduced upon the issues tendered, and the case was submitted to the jury, not only for a general verdict, but also upon special interrogatories for answers thereto.The verdict was for plaintiff against both defendants, and the jury found in answer to the interrogatories that there was a conspiracy between defendant, M. B. Doolittle, and his sons to commit the assault upon the plaintiff, and also the result of a conspiracy between the said sons and both defendants; and that the assault upon plaintiff's wife was the result of a conspiracy on the part of both defendants.But it also found that Mrs. Jolly, plaintiff's wife, did not die as a result of the assaults or either of them, and that the acts done by Mrs. Doolittle did not contribute to the death of plaintiff's wife.

The defendants each moved for judgment in their favor upon the first count of the petition, based upon the said special findings, and each filed a motion for a new trial and to set aside the general verdict and the special findings, adverse to them, on many grounds, especially upon the ground of misconduct of one or more jurors in the jury room.The plaintiff made two offers to remit, the first one to remit $ 500.00 from the verdict, and the second to remit $ 750.00.The trial court reduced the verdict to $ 750.00 and overruled the motions for a new trial, also the motion for judgment on the first count of the petition.Both defendants appeal.

We may say at the outset that, in view of the answers to the special interrogatories, the defendants' motions for judgment on the first count of the petition, which claimed damages for the premature death of plaintiff's wife and nothing more, should have been sustained.The jury specially found that neither of the alleged assaults caused or contributed to the death of plaintiff's wife, and that of necessity was the end of the case, so far as the first count is concerned.CodeSec. 3778;Seevers v. Cleveland Coal Co.,158 Iowa 574, 138 N.W. 793.

II.It follows that whatever errors may have been committed by the trial court in its rulings on matters affecting the first count are without prejudice and should be disregarded because of plaintiff's failure to recover on this count.Plaintiff has not appealed, and errors against him cannot be reviewed on this appeal.

As to the second count, which charges injury to the plaintiff's person by reason of an assault made upon him by defendant's sons, Amos and Mark Doolittle, it is to be observed that neither of defendants was present at the time of this assault, and they are to be held liable, if at all, because they conspired with their sons to commit it or to do some unlawful act, or that they inspired the boys to commit the assault, aided or abetted them in so doing, or encouraged or incited them to do it.It is not necessary, of course, to show that both defendants conspired to commit the assault, for if either did, he may be held responsible under our rule, although the other did not join therein; but it is manifest that without proof of a conspiracy, or what is the equivalent, neither should be held liable.The trial court so instructed, and the special findings indicate that the jury found a conspiracy on the part of both defendants.Each defendant challenges the sufficiency of the testimony to justify such a finding, and we may say at the outset that we find no sufficient testimony to justify a verdict against Mrs. Doolittle on the theory that she conspired with her codefendant or with her sons, to commit the assault made by them upon the plaintiff; and so far as she is concerned, the case should not have been submitted to the jury on this issue.It is useless to set out the testimony, for it is negative in character, and there is no positive testimony tending to connect this defendant with the assault upon plaintiff.

Indeed, the only thing relied upon is testimony that this defendant, or she and her husband, sent the boys to the premises where plaintiff lived, just before the altercation, to get some stone for use in laying a foundation for a barn, which a mason was then engaged in building for the defendant, M. B. Doolittle.The premises on which plaintiff resided belonged to M. B. Doolittle, and the stone was to be used for the foundation of a barn.The defendants had the right to get the stone from the place plaintiff was occupying, or at least there is no showing to the contrary.The boys came home after the assault, and this defendant helped bind up their wounds, at the same time expressing her indignation at plaintiff's conduct.This assault was on Thursday night, and plaintiff contends that on the following Monday night this defendant went to plaintiff's premises (which, under the record, she had a right to do), and there brandished a large butcher knife in the presence of plaintiff's wife, and either assaulted or threatened to assault the wife; but there is no testimony tending to connect the two assaults in any way, or that any person was concerned in this latter assault other than Mrs. Doolittle herself.This assault, as we have already seen, did no damage to plaintiff's wife.

There is some testimony that, at another time, Mrs. Doolittle was sent by her husband to get a contract from plaintiff, and that he(plaintiff) refused to deliver it to her.This is all the testimony against the defendant, Mrs. Doolittle, connecting her in any way with the assault upon the plaintiff.Aside from the fact that Mrs. Doolittle acted in the presence of or by direction of her husband, in the premises, and under the law is presumed to have been under his coercion, and assuming, arguendo, that she is responsible for all that she did, we do not find enough testimony to justify a verdict against her based on the theory that she was in any way connected with the assault made by her sons upon the plaintiff.Conceding, again, that the boys went to plaintiff's place to get the rock at defendant's directions, it does not appear that this was wrong or that the boys were not entitled to get the rock, and hence if upon that mission they turned aside and committed an assault upon plaintiff, which was due either in fact or through a ruse to the claim that plaintiff had not watered the hogs on the premises he was then occupying, as he had agreed to do, defendant would not be responsible on the theory that they were her agents and that she was bound by everything they did while on their mission of procuring the rock.The doctrine of respondeat superior does not go to that extent, and what they did was clearly outside of the scope of their employment.De Camp v. R. R. Co.,12 Iowa 348;Cooke v. R. R.,30 Iowa 202;Kumba v. Gilham,79 N.W. 325;Ferguson v. Terry, Note in 10 L.R.A. (N.S.) 936(Ky.);La France v. Krayer,42 Iowa 143, 146;Moore v. Fryman,154 Iowa 534, 134 N.W. 534.

The relationship existing between the parties, as mother and son, is no evidence of a conspiracy.Hickox v. Bacon,17 S.D. 563, 97 N.W. 847.

III.As to M. B. Doolittle, who was alive at the time of trial and gave testimony in the case, we think there was enough to take the issue of his responsibility for the assault to a jury.The premises on which plaintiff was living belonged to this defendant(and hereafter in speaking of him, we shall call him the defendant); and he, plaintiff, had two written contracts with reference to the use of the premises with the defendant, one covering the period from September 1, 1910, to March 1, 1911, and the other from March 1, 1911, to March 1, 1912.Their difficulties arose on November 3, 1910, during plaintiff's...