Newcomer v. Ament

• Decision Date: 05 April 1932
• Docket Number: No. 41145.,41145.
• Parties: NEWCOMER v. AMENT.
• Court: Iowa Supreme Court

214 Iowa 307

242 N.W. 82

NEWCOMER

v.AMENT.

No. 41145.

Supreme Court of Iowa.

April 5, 1932.

Appeal from District Court, Cherokee County; C. C. Bradley, Judge.

The plaintiff in this action demands judgment of the defendant for criminal conversation with his wife. Verdict and judgment for the defendant, and the plaintiff appeals.

Reversed.Claud M. Smith and James D. F. Smith, both of Cherokee, for appellant.

Herrick & Ary, of Cherokee, and Jepson, Struble & Sifford, of Sioux City, for appellee.

STEVENS, J.

The parties to this action reside in the same block in Marcus, Iowa. Appellant is engaged in the restaurant business, and appellee is the proprietor of a garage. Both are married.

Appellant, as a witness in his own behalf, testified that he is thirty-seven years of age, that he was married in 1917, and has one child twelve years of age. According to his testimony, he heard rumors of illicit relations between appellee and his wife, and that on several evenings in October and November he concealed himself behind a bush in the vicinity of his home and that on each occasion he saw appellee drive past his home and his wife enter the automobile with him; that they drove into the country, returning late at night. The testimony of one other witness tended to show that appellee and appellant's wife met on different occasions on earlier dates in Sioux City; that Mrs. Newcomer visited at the home of the witness, a friend of many years; that appellee and she went riding afternoons and evenings together; and that upon one occasion they went to an apartment house early in the afternoon and remained until evening. The number of visits is not definitely stated, but the inference permissible from the testimony is that they were numerous. No explanation of any of these trips or visits is offered by appellee. On the contrary, they were all denied by him. Appellant's wife was not a witness, did not testify for either party, but it is shown that she left her home prior to the date of the trial. The court overruled the motion of appellee for a directed verdict made at the close of plaintiff's testimony.

[1][2][3] The sufficiency of the evidence to sustain a verdict in favor of appellant, if one had been returned, is not particularly challenged on this appeal. Reliance is placed upon error in the court's charge to the jury. We quote the material portion of the charge: “Par. 6. You are instructed therefore that if the plaintiff has proved to you by a preponderance of the burden, the burden being upon him so to prove that at all the times in controversy in this action, the plaintiff and Irene Newcomer were husband and wife, and that such fact was at all times known to the defendant, Joe Ament, and that on or about the 30th day of October, 1930, or at any time thereafter, the defendant, Joe Ament, did in fact have sexual intercourse with the said Irene Newcomer, then the plaintiff is entitled to recover herein, and in that event you should return your verdict in his favor.”

The petition in this case charged illicit relations between the defendant and appellant's wife at various times and places within two years last past. The several visits observed by appellant were in the last days of October. The relationships which the evidence tended to establish between the parties in Sioux City occurred as early as July. The instruction limited the acts to those occurring on or about October 30th and thereafter. The term “on or about” does not have a precise meaning, and, when it refers to time, permits some variation. In...