Luttermann v. Romey

• Decision Date: 01 July 1909
• Citation: 143 Iowa 233,121 N.W. 1040
• Parties: LUTTERMANN v. ROMEY.
• Court: Iowa Supreme Court

143 Iowa 233

121 N.W. 1040

LUTTERMANN

v.ROMEY.

Supreme Court of Iowa.

July 1, 1909.

Appeal from District Court, Osceola County; David Mould, Judge.

Action to recover damages for assault and battery committed by the defendant upon the plaintiff, and also to recover damages for a like wrong committed by defendant upon one Louise Keller, whose cause of action was assigned to plaintiff. There was a verdict for the defendant, and from the judgment thereon, plaintiff appeals. Reversed.C. A. Babcock, for appellant.

R. M. Hunter and O. J. Clark, for appellee.

McCLAIN, J.

The allegation of the first count of the petition was that defendant committed an assault and an assault and battery upon plaintiff, with the intent and for the purpose of having and obtaining sexual intercourse with her, which assault and assault and battery was as follows, to wit: Defendant then and there patted plaintiff upon her back, and pinched her arms and breasts, and petted and tickled her under her chin, and tried to put his arms around her, and took hold of her hand, and tried to draw her to and towards him, all of which defendant did with the intent and for the purpose of having and obtaining sexual intercourse with plaintiff. That said acts and conduct of defendant greatly insulted and humiliated plaintiff, and caused her to be sick and nervous, and caused her great physical pain, and mental pain and anguish. In the second count it was alleged that the defendant committed an assault and an assault and battery upon Louise Keller by committing similar acts to those charged in the first count, with the intent of having and obtaining sexual intercourse with her, and that he accompanied these acts with language constituting a solicitation of sexual intercourse, which language and conduct greatly insulted and humiliated said Louise Keller, and caused her to be sick and nervous, and caused her great physical and mental pain and anguish, etc., to her damage. And it is further alleged that the cause of action in favor of said Louise Keller had been by her assigned to the plaintiff.

The court instructed the jury, following the language of the petition, that if defendant committed an unlawful assault upon the person of plaintiff by doing the acts recited in the petition (setting them out specifically in the instruction), or by doing any one of said acts, and “said acts, or any of them, were done with the intent and purpose of having and obtaining sexual intercourse with plaintiff,” and by reason of said acts plaintiff became frightened, and suffered physical pain and mental anguish, then plaintiff would be entitled to recover on the first count of her petition. This instruction was erroneous, because it made the finding of the intent and purpose of obtaining sexual intercourse with plaintiff essential to plaintiff's right of recovery for the assault and battery alleged. Any application of unlawful force to another constitutes an assault and battery. Webb's Pollock on Torts, 247. “Every man is the sole custodian of his own physical person. No other has a right even to touch it unlicensed, and another wrongs him who does to him any physical violence, however slight,” and one who...