Quillen v. Lessenger
| Decision Date | 08 February 1921 |
| Docket Number | 33386. |
| Citation | 181 N.W. 8,190 Iowa 939 |
| Parties | C. KATHRYN QUILLEN, Appellee, v. W. E. LESSENGER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Henry District Court.--OSCAR HALE, Judge.
ACTION at law to recover damages resulting from defendant's alleged wrongful and malicious conduct while trespassing on plaintiff's premises. Verdict of jury in favor of plaintiff for $ 999. Defendant appeals.
Reversed.
Roberts & Webber, for appellant.
J. C McCoid, for appellee.
DE GRAFF, J.
The petition alleges that the defendant, Dr. W. E. Lessenger entered the premises occupied by the plaintiff and her husband as a home, on Sunday evening, March 18, 1918, with a malicious and wrongful intent to abuse and assault plaintiff's husband; that he did at said time and place curse, assault, and bruise plaintiff's husband in the presence of plaintiff; that he also broke a window in plaintiff's home, with the malicious intent of terrorizing the plaintiff; that, by reason of said conduct plaintiff suffered great mental pain and physical injury and damages in the sum of $ 5,000. Defendant answered by a plea of general denial.
Both plaintiff and defendant are residents of Mt. Pleasant, Iowa, where the incidents of this action occurred. Plaintiff's husband is the manager of the local telephone company. The defendant is a physician and surgeon, with a large and lucrative practice, and it was his custom to send his patients to the St. Francis Hospital at Burlington, as his home city had no suitable hospital facilities. At the time in question, six or seven of his patients were in said hospital, two of whom had been operated on the day before. The defendant's niece was also under treatment in said hospital at that time, and one of his patients was in a serious condition. The defendant, during the afternoon of the day in question, had tried to secure telephone connections with the hospital, to learn the condition of his patients, and it appears that, on account of the operations recently performed, he was very anxious to learn the results thereof, believing that it might be necessary for him to go to Burlington.
From about 4 o'clock in the afternoon until 6, he was unable to secure telephone connections, and, by reason of the repeated calls, both defendant and the girl in charge of the central office reached a point where "forbearance ceased to be a virtue," and, after defendant had used some objectionable language, "central cut out his phone and refused to answer his calls."
One of the printed rules of the telephone book read:
In compliance with this rule, as claimed by defendant, he was driven, about 9 o'clock, to the home of the plaintiff, for the purpose of getting his phone connected, or making some arrangement whereby he could communicate with his Burlington patients. Upon arrival, he told Mr. Quillen his mission, and, after some conversation, a fight ensued outside the house. The plaintiff, while not outdoors during the time of the altercation and alleged assault, became frightened, and claims to have received a permanent injury to her nervous system.
The errors assigned for a reversal are: (1) Prejudicial statements of plaintiff's counsel in his opening statement to the jury; (2) the admission in evidence of statements claimed to have been made by defendant by telephone to the operator on the afternoon in question; (3) prejudicial misconduct of counsel in argument to the jury; (4) refusal to give certain instructions requested by the defendant.
I. Frequently a little poison is injected into the record, on the trial of a case, by the side remarks of counsel, by the asking of an improper question with a concealed yet revealed answer therein, in the argument of facts de hors the record,--and, perchance, no prejudicial error results. In the instant case, however, a toxic dose was administered. The initial words of plaintiff's counsel in the opening statement were:
"We will show you that she [meaning Mrs. Quillen] heard that this defendant went down to the drug store with a knife in one hand and with a revolver in the other."
At this point, counsel for defendant interposed a proper objection.
Plaintiff's counsel continued:
"We will show you that Mrs. Quillen heard that another night he called up the telephone girls and threatened to come over and cut their throats, and had started down the steps and was stopped by an officer at the foot of the steps."
At this point, further objections were made by defendant, whereupon the court remarked: "Counsel should hold himself within what he may be able to prove on the trial."
We would not reverse on this ground alone, but it would have been proper for the trial court to have admonished plaintiff's counsel, and to have instructed the jury at that time to give no consideration to the statement made.
Upon the cross-examination of the defendant, the following record was made:
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