Polk Cnty. v. Owen
| Decision Date | 02 October 1919 |
| Docket Number | No. 31635.,31635. |
| Citation | 174 N.W. 99,187 Iowa 220 |
| Parties | POLK COUNTY v. OWEN ET UX. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Hubert Utterback, Judge.
Appeal from an order that defendants and appellants pay to their son, George Owen, an alleged pauper, a stated sum monthly, for the relief, maintenance, and care of said son. Reversed.Jordan & Jordan, of Des Moines, for appellants.
George A. Wilson, Ward C. Henry, and Arthur T. Wallace, all of Des Moines, for appellee.
[1][2] I. There was an unchallenged allegation in the petition to the effect that the county and charitable associations have been furnishing support to the alleged pauper. The witness Bowers testified, without objection, that certain persons who were officers of some charitable association had said they would see to obtaining $4 a month from the trustees. At this point objection was made that this was immaterial, incompetent, and hearsay, and the objection overruled under due exception. If matters had remained thus it would probably be true that this testimony was objectionable, because a mere undertaking by some one to obtain such help from the trustees supports no issue in the case. But the witness continued that the said sum was in fact obtained, and the jury could find that it was paid over to the alleged indigent, and this is proper evidence of indigency. In connection with this there was further improper testimony to the effect that the wife of the alleged pauper said to these men that if they would raise this $4 and allow it to be used as rent money Mrs. Owen believed she could furnish the table. At this point defendant moved “to strike the entire testimony” for being immaterial, irrelevant, and incompetent. This was overruled, and the ruling is made the basis of complaint. As seen, some of the testimony was proper. The motion to strike blanketed the proper testimony with the improper. The objection could not be reframed by the court. It was bound to pass upon it as presented. Being called upon by such motion to exclude the proper with the improper testimony, and without separation in the motion, overruling this motion was not error. See Mitchell v. Beck, 178 Iowa, 786, 156 N. W. 428, 160 N. W. 232, and Mohler v. Guest, 172 N. W. 302.
[3] 1a. Dr. Bunce was asked whether he had not told the alleged pauper that he had talked with the parents of the pauper, and they had told him to say that if help was needed the son could come back to their home with his family. On objection that the inquiry was incompetent, irrelevant, immaterial, and not proper cross-examination, answer was not permitted. We think the ruling was without prejudice, were it erroneous; for evidence that such an offer was made and communicated to the son is found elsewhere in the record. The ruling was right for other reasons, which will be stated in another connection.
[4] 1b. The witness Duckworth was permitted, over the objection that the same was hearsay and incompetent, to state, in effect, word had come to her that the father of the alleged pauper had stopped the visit of the doctor, and that the doctor told the witness the father had stopped his attendance but that he was willing to go again when he was called, but that, of course, he could not go there so long as the parents closed the doors in his face. Undoubtedly this is hearsay. But the ruling which permitted this testimony is harmless because for reasons, stated in another connection, the attitude of the father with reference to permitting medical attendance is immaterial.
[5] 1c. George testified he learned photography when he was a boy, but was not a photographer; “that is, not up-to-date or anything like that,” and that he was too nervous to do anything with it; that his father bought a camera for himself and loaned it to him, and he still has it. On cross-examination he was asked, “ Objection was made that this was incompetent, irrelevant, and immaterial, and not proper cross-examination, and for the further reason that it had all been gone into. This objection was sustained, and the ruling is complained of. To say the least, the last part of the objection is well taken; for, as seen, the witness had testified in chief, without objection, what amounts clearly to a statement that he understood photography to some extent.
[6] 1d. The witness Bowers said that he had talked with the son, and This appears in the record in narrative form, yet objection was made that it was leading and incompetent and immaterial, and the overruling of this objection is now complained of. We cannot well hold that there was a leading question, because the form of question is not indicated. The matter is clearly not immaterial. If vulnerable to objection, the mere statement that it is “incompetent” is not sufficient to raise such objection.
[7] 1e. Without objection Mrs. Robt. Owen, one of the defendants, was permitted to testify as a witness for the defendants that she was on friendly terms with all her children. After the answer was given counsel for defendant objected that the matter in question was irrelevant, incompetent, and immaterial. The court seems to have agreed to this view, and said, speaking to the objection, that “the relation to the other children don't have anything to do with this case; we are just dealing with the one child;” and then some one excepted.
It would seem that the defendants are now complaining of an answer they themselves elicited, because the court agreed with them after they had put in this testimony that same was irrelevant.
[8] 1f. Appellant complains the court erred in refusing to permit Marion Owen to testify as to the treatment by the defendants of their son Robert. What occurred is this:
Clearly this was not a refusal to allow the treatment to be shown, and the only reason for not having more from this witness is that, after the court had ruled that the witness might speak to the treatment, the defendants failed to follow up the matter.
[9] 1g. The defendant Mrs. Robt. Owen was asked whether there had been any need of the son making application for charity because of her refusal to assist the son to all the necessities of life. Objection that this was incompetent, irrelevant, and immaterial, and called for the conclusion of the witness, was sustained--we hold that the question called for a nonpermissible conclusion, and was an attempt to usurp the province of the jury.
[10] 1h. Mrs. Owen, the defendant, was asked, “Has there been any need of George making application to Polk county or any charity organization for any help, aid, or relief because of your refusal to assist him to all the necessaries of life?” Among others, objection was made that this called for a conclusion of the witness. The objection was sustained, and we think rightly.
[11] 1i. The witness Shirley was asked whether, if she had known that George had this vested one-seventh interest in the land, she would have expended the money of the county in helping pay his rent. Answer was excluded on the objection, among others, that it was incompetent, irrelevant, and immaterial. It was sustained, and we think rightly so. It is wholly immaterial in this suit, whatever it might be if the suit had been one to recover for advances made. In this suit, if it was necessary to give this help, it tends to prove that the son is indigent; and the opinion of the witness as to whether she would have given this aid if she had known that the claimed pauper owned certain property does not change the fact that the demanding and giving such assistance was some evidence of indigency.
[12] 1j. Witnesses testified to the effect that the son George had falsely accused his mother of having been the cause of the death of a son. One of these witnesses was then asked, “Was your mother the cause of Robert Owen's death?” To this objection was sustained that it was incompetent, irrelevant, and immaterial, and called for an opinion and conclusion of the witness. We think the objection that this is a nonpermissible conclusion is well taken. And this testimony is immaterial for reasons stated in another connection.
[13][14] 1k. We hold there was no error in refusing to let this witness say whether the parents were kind and gentle with the son George. While it calls for a conclusion which may be admissible of necessity, we think it immaterial for said reasons stated in another connection. So of testimony by a medical man tending to show that the place in which the parents kept the son and his family was a sanitary one. The conclusion sought for was permissible of necessity, but we hold it to deal with immaterial matter on account of said reasons stated in another connection.
[15] 1 l. The refusal to let this medical man say that the space allotted the family in the home of the parents furnished sufficient rooms was rightly excluded. The matterinquired into involved no question upon which a physician was peculiarly competent to speak, and for reasons stated elsewhere the matter inquired into was immaterial.
[16] 1m. We hold, also, that for said reasons it was harmless error to exclude testimony tending to show that while the son lived at home he was profane.
[17] II. The same witness said that a certain committee of ladies called on the trustee and arranged that she furnish the Owens groceries. He added the express statement that this was not hearsay; that he knew it. He was then asked whether he was present, and answered, “I wasn't, but the trustee told me.” Thereupon defendant moved to strike this answer as hearsay. The court overruled the...
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