Morrow v. Scoville
| Decision Date | 13 November 1928 |
| Docket Number | No. 39320.,39320. |
| Parties | MORROW v. SCOVILLE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Poweshiek County; D. W. Hamilton, Judge.
An action at law for damages for assault and battery, with a counterclaim for assault and criminal conversation. The jury returned a verdict in favor of the plaintiff for $500, and defendant appeals. Affirmed.Clyde McFarlin, of Montezuma, and McCoy & McCoy, of Oskaloosa, for appellant.
Thomas J. Bray, of Oskaloosa, for appellee.
The claim of the plaintiff was that the defendant was guilty of assault and battery against her, committed on the 30th day of May, 1927. The answer and counterclaim gave rise to several different issues; when the case was submitted to the jury, but two were submitted: First, the issue made by the plaintiff's petition of assault and battery; and, second, the issue in the second count of defendant's counterclaim, involving the alleged charge of criminal conversation between the plaintiff, Mattie Morrow, and the defendant's husband, Charles Scoville.
[1] The first question raised in the case involves an instruction given by the court in which he told the jury, in substance, that, in determining the extent and severity of the injuries claimed to have been received by the plaintiff in the alleged assault, the jury might take into consideration the respective size, health, and physical condition of the parties as it appeared from the evidence in the case.
One of the defenses attempted by the defendant against plaintiff's charge of assault and battery was self-defense. The court rightly refused to submit this question to the jury, because there was no warrant to submit such an issue. The appellant insists that, this issue having been withdrawn from the consideration of the jury, the aforesaid instruction was unwarranted. It is true that this instruction is most frequently used where the plea of self-defense is interposed. Under the evidence in this case, at the time of this assault, plaintiff weighed 173 pounds and the defendant 115 pounds. Under these circumstances, the instruction would seem of greater use to the defendant than it would be to the plaintiff; at least, we can see no prejudicial error in giving it. See State v. Dickson, 200 Iowa, 17, 202 N. W. 225.
[2][3] In relation to the alleged illicit relations between the plaintiff and Charles Scoville, the husband of the defendant, on direct examination the defendant testified that up until the time of her knowledge of such relations her home was pleasant. She testified:
“My husband and I loved each other, and since that time my home has not been a home.”
She was then asked this question:
She was then asked on cross-examination whether she had not heard that her husband was unduly intimate with other women, especially one Mrs. Jake Morrow. This cross-examination was strenuously objected to, and the admission of testimony along the line of showing her knowledge of the illicit relations between her husband and Mrs. Jake Morrow was assigned as error.
We think the cross-examination, in view of the direct examination, was permissible, and there was no error in allowing such cross-examination along this line. The court gave an instruction relative thereto, saying to the jury, in substance, that evidence had been admitted that the husband, Charlie Scoville, had illicit relations with a woman other than the plaintiff, and that defendant knew of these relations between her husband and such woman. The jury was then told, if they found this to be a fact, it would not prevent the defendant from recovering damages from the plaintiff, if it were found that plaintiff was guilty of illicit relations with the defendant's husband.
It is insisted that the court was not warranted in giving this instruction, bottomed on the theory that such evidence should not have been admitted in the first instance. Having held that the evidence was admissible in the first instance, the instruction necessarily followed, and was correct as against the assault made on it.
[4][5] It is urged, however, that this evidence was only admissible in mitigation of damages, and that plaintiff did not plead it as such; hence it was error to admit the same and instruct thereon.
It was our holding in the case of Ruby v. Lawson, 182 Iowa, 1156, 166 N. W. 481, a case in which the charge was alienation of affections, aggravated by seduction, that evidence of the previous unchastity of the wife was not admissible unless pleaded in mitigation of damages. In Frank v. Berry, 128 Iowa, 223, 103 N. W. 358, another alienation case, the jury was instructed not to consider the evidence of plaintiff's wife's bad character prior to her...
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