Redden v. Gates

Decision Date25 October 1879
PartiesJAMES REDDEN, BY HIS NEXT FRIEND, APPELLEE, v. JOHN M. GATES, APPELLANT.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Clinton circuit court.

The petition states the defendant “did maliciously, wantonly, and oppressively assault and beat said James Redden with a whip, commonly called a rawhide, * * * * in a cruel, malicious, and wanton manner, with intent to disgrace.” There was a trial by jury; verdict and judgment for the plaintiff for $500. The defendant appeals.Kirke W. Wheeler, for appellant.

Merrell & Howatt, for appellee.

SEEVERS, J.

The evidence tended to show that early in the morning, while the plaintiff was in bed, the defendant caught hold of and raised him up to a sitting posture, and whipped him over the back and shoulders with a small “rawhide.” Plaintiff had no clothing on his person, but did what he could to screen himself with the bedclothing. The plaintiff's back and shoulders were black and bruised, and there were cords or welts caused by the whipping. The skin was lacerated in more than one place from two to six inches in length. Blood exuded, and there were forty or more blows struck. There was a scar on plaintiff's back at the trial, which was two years after the whipping. The plaintiff testified that at times there was pain in the region of his scar, and that he was troubled with shortness of breath. There was evidence tending to show that this could not have been the result of the whipping. The plaintiff was confined to his bed for a short time, but there was evidence tending to show that he probably entirely recovered from the effects of the whipping in about ten days. The evidence further tended to show that the defendant did not know plaintiff did not have any clothing on, and that plaintiff was an employe of defendant--a portion of his duties being to milk cows, drive them to the pasture, and feed hogs. These duties he on one occasion neglected to perform. For such neglect he received the whipping. The age of the plaintiff does not distinctly appear, but counsel for appellant say he was a “minor nearly of age, and a large, vigorous, stalwart young man, on whom his mother was dependentin a measure for her support.” The defendant is over six feet high, and weighed two hundred pounds.

Thirty-four errors are assigned. All are, to some extent, insisted on in argument. Several relate to the same thing, and may be said to be a statement of different reasons why the same result should be reached. We cannot undertake to discuss all the reasons set forth, but will endeavor, as briefly as may be, to determine the important errors relied on.

1. Fourteen of the errors relied on present the question in various forms that there was not sufficient evidence to warrant the court in submitting the question of exemplary damages to the jury. It is said the assault must be malicious, and that evidence the battery was excessive had no tendency to establish that fact. That the jury were fully warranted in finding the battery was excessive, even if the assault was justifiable, we have no hesitation in affirming. As bearing upon the question of malice, all the circumstances surrounding the transaction, as a whole, may be introduced and should be considered by the jury. There cannot be even a well-grounded pretence the assault and battery were justifiable. There was no appreciable difference in point of time between them. The attempt to attach a consequence to one essentially different from the other is futile. Every one is presumed to intend the necessary consequences which follow a given act. Therefore the intent of the assault may be and should be determined from the excessiveness of the battery which immediately followed. There was no error in submitting the question of exemplary damages to the jury.

2. The court charged the jury that malice might be inferred from the circumstances, and if the defendant assaulted and beat the plaintiff without just cause and provocation, the assault and battery would be malicious. Substantially the same instruction was approved by this court in State v. Hessenkamp, 17 Iowa, 25, and McCord v. Hugh, 24 Iowa, 336. There is nothing in this case which makes it any exception to those cited.

3. The instructions in relation to damages accord with Hendrickson v. Kingsbury, 21 Iowa, 379;Garland v. Wholeham, 26 Iowa, 185;Guengerich v. Smith, 36 Iowa, 587; and Ward v. Ward, 41 Iowa, 687.

This is substantially conceded by counsel, but it is insisted the facts in the case at bar are different. This is true. The facts in any two cases are not usually precisely the same. They are, however, governed by the same rule of law. The applicatiou of the facts thereto is for the jury. In legal acceptation there is not a particle of difference between this case and those cited.

4. The defendant gave evidence tending to show that his general character as a quiet, orderly and peaceable man was good. The court charged the jury that such evidence would not justify the assault and battery, and should not be considered by them in rebutting malice or in mitigation of damages. This instruction accords with Quinton v. Van Tuyl, 30 Iowa, 554. It is doubtful whether the evidence was admissible for any purpose. Bays v. Herring, 1 N. W. REP. 558, 51 Iowa, 286.

5. At the instance of the defendant the plaintiff's back and shoulders were exhibited to the jury, and the plaintiff introduced as evidence, against the objection of the defendant, a ferreotype showing the condition of his back three days after the battery. The person who took the picture testified it was a correct representation of the plaintiff's back at the time it was taken. If it had been possible it would have been competent for the jury to have examined the back at the time the picture was taken for the purpose of more readily understanding the other evidence. The ferreotype was therefore admissible. Locke v. S. C. & P. R. 46 Iowa, 109;Blair v. Pelham, 118 Mass. 420;Wadderyook v. Commonwealth, 76 Pa. St. 340.

The defendant asked the court to instruct the jury that the weight to be given to such evidence was “meagre and slight.” This was a question for the jury, not the court.

6. The court instructed the jury that the evidence must...

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