Jones v. Marshall

• Decision Date: 21 October 1881
• Citation: 10 N.W. 264,56 Iowa 739
• Parties: JONES v. MARSHALL.
• Court: Iowa Supreme Court

56 Iowa 739

10 N.W. 264

JONES

v.MARSHALL.

Supreme Court of Iowa.

Filed October 21, 1881.

Appeal from Clayton district court.

Action to recover damages for forcibly dispossessing plaintiff of her dwelling-house and removing her household goods therefrom. Issue having been taken upon the allegations of the petition, there was a trial by jury, which resulted in a verdict and judgment for the plaintiff for $250. Defendant appeals.L. O. Hatch, for appellant.

James O. Crosby, for appellee.

ROTHROCK, J.

It appears from the evidence that the defendant, as agent of the owner of a dwelling-house, leased the same to the plaintiff at a rental of $2.50 per month. The defendant claimed that the plaintiff was by the terms of the contract bound to pay the rent monthly in advance, and that she failed to make such payments, and that the tenancy expired. The defendant gave the plaintiff three days' notice to quit, and some time thereafter he procured from a justice of the peace a writ of possession or order of removal to be issued to a constable, who unlocked the house in the absence of plaintiff and removed her goods. The plaintiff returned and went into the house, and said that if she went out she would have to be carried. Thereupon the constable, with some assistance, removed her from the house by gently carrying her in the chair in which she was sitting without touching her person.

The court instructed the jury that if they found for the plaintiff, and that the defendant acted oppressively or maliciously, they should give the plaintiff exemplary damages. It is provided in section 2727 of the Code that “when the party intends to prove malice to affect damages he must aver the same.” There is no allegation in the petition to the effect that the acts of the defendant were done in malice, and we think no exemplary damages were proper without such allegation. If the defendant in good faith believed he had the right to take possesson of the house by the means he employed for that purpose, he cannot be held liable for exemplary damages. It was therefore necessary to aver and prove, to the satisfaction of the jury, that his acts were maliciously done, in order to charge him in any amount exceeding actual damages. Johnson v. C., R. I. & P. R. 51 Iowa, 25.

It is averred, in a reply to the answer, that the acts of the defendant were done in “wanton violation of the law.” If it should be held that this was a sufficient allegation that the defendant's acts...