Reinwaldt v. Hulsebus

• Decision Date: 09 May 1922
• Docket Number: No. 33683.,33683.
• Citation: 188 N.W. 11
• Parties: REINWALDT v. HULSEBUS.
• Court: Iowa Supreme Court

188 N.W. 11

REINWALDT

v.HULSEBUS.

No. 33683.

Supreme Court of Iowa.

May 9, 1922.

Appeal from District Court, Crawford County; E. G. Albert, Judge.

Action at law to recover damages for rape alleged to have been committed by the defendant upon plaintiff at her home near the town of Buck Grove, Iowa, August 26, 1918. Plaintiff asked actual and exemplary damages. Trial to a jury. Verdict and judgment for plaintiff in the sum of $5,025. The jury fixed the amount of the actual damages at $1,525, and the exemplary damages at $3,500. The defendant appeals. Affirmed.Sims & Kuehnle and Conner & Powers, all of Denison, for appellant.

P. W. Harding and W. E. Kahler, both of Denison, for appellee.

PER CURIAM.

The errors and points relied upon for reversal are as to the alleged insufficiency of the evidence to sustain the verdict; that the verdict is contrary to the evidence and the instructions; that it is improbable that plaintiff could not have prevented defendant from committing the offense upon her and that she consented if the offense took place and that even though there being a conflict in the testimony, the court has the right to look into the whole case and grant a new trial if an injustice will result. Appellant further contends that the court erred in refusing to give one of his requested instructions, and that the exemplary damages awarded are out of all reasonable proportion to the actual damages, and that for this reason the verdict should be set aside. Appellant seems to rely most strongly upon the alleged insufficiency of the evidence. The trial of the case took about 15 days. Appellee has filed an additional abstract of some length. Parts of appellee's amendment, are denied by an additional abstract by appellant, and, instead of a transcript, the parties have stipulated as to the correctness of certain parts of the record. We shall endeavor to state the evidence correctly, as far as may be, from the three abstracts and stipulation, so far as the details of the evidence may be stated. There is, to some extent, a contradiction in the testimony of plaintiff and some of her witnesses at some points. This is true, also, of the defendant and some members of his family, four or five of whom testified in his behalf. There is a direct conflict in the testimony as to the main fact. The defendant denies that he had intercourse with plaintiff. Manifestly, it would not be possible, within reasonable limits, to set out all the conflicting testimony, or to discuss it. Furthermore, the evidence is of such a character that the details ought not to be stated and made of permanent record in the Reports. Some of the facts are not in serious dispute. Some of them are not disputed at all. We shall refer to some of these in a general way, to show the general situation, and then refer to the matters in dispute sufficiently to show that there was a question for the jury.

[1] It is needless to say again that contradictions brought out on cross-examination, and otherwise, and other matters bearing upon the credibility of the witnesses, are for the jury.

[2] 1. Plaintiff is a widow, 64 years of age, whose husband died about 4 years ago. She had raised a family of children who had homes of their own, except her unmarried son William, aged 25, who lived with her. She lived on her 25-acre farm a mile or so from the town of Buck Grove, and defendant lived on a farm near by. Plaintiff seems not to be very familiar with the English language. An interpreter was used at the trial. She had never been in court before; never kept company with any man after her husband's death; she says she did not care for defendant; she was short of stature and weighs about 140 pounds. While she does the cooking, makes the beds, sweeps and washes the dishes, she did not do the heavier work; her son helped her. She claims she is not in good health. Defendant testifies that he was feeling well when he was at plaintiff's house at the time in question. In his evidence defendant says of plaintiff that he knew she was a sort of a quiet, easy-going, and motherly old lady; he looked upon her as being a respectable good old lady, and never heard of her keeping company with any other man. Plaintiff had lived in this country more than 25 years, and no attempt was made to impeach her as to her chastity, and no witnesses were called to question her veracity. Defendant weighs about 190. He is about the same age, and has been a widower for about 4 years. He has raised a family of several children. Plaintiff's home, where the offense is alleged to have taken place, was somewhat secluded from view, some 17 rods from the main road and 40 rods to the nearest house; pasture between her home and the main road; a creek and some trees around the pasture and her home. She was alone in her home at the time in question. Evidence of defendant in his behalf tends to show that, some 20 years or more before, he suffered an injury by which some of his ribs were broken, and that thereafter he had difficulty in breathing and was subject to fainting spells. He and other members of his family so testify. Later, one of his fingers was injured and the finger was stiff. A year before the occurrence complained of, he was thrown from an automobile and sustained a broken leg. For some years he had used a cane. After the date of his last injury he was unable to do a day's work. The testimony tends to show that the first injury was repaired and that he recovered from the injury to his broken leg, so that he could get around fairly well. There had never been any injury to his arms. He had no trouble with his heart in August, 1918, but testifies at the trial that it was worse than it was before. On Sunday, the 25th, defendant walked to the town of Buck Grove, and in the evening drove the cows in from the pasture. Monday morning, the 26th, he fed the young cattle from a wagon load of fodder and fed the cows and horses from a stack of hay in the yard, and at 11 o'clock started out walking to town. Before doing this, he again fed the stock on the farm. About 3 o'clock p. m. of that day, on his return from town, he walked over to plaintiff's home some 40 rods from defendant's son's house, where he was then staying. There is a sharp hill to climb to get to plaintiff's house, and no other way to reach it. Though the weather was hot, it did not tax his strength very much to climb this hill. The defendant says his physical condition at that time was good and he had a good appetite and felt well.

Under such circumstances, it is contended by appellant that it is improbable that he could have continued the struggle for some time before the alleged intercourse, as claimed by plaintiff, or that he could have accomplished his purpose had plaintiff resisted. Plaintiff testifies in substance that defendant stayed at his daughter's (Arnholdt's) on the adjoining land in August, from Wednesday until Monday; Arnholdt and his wife were away; that defendant told plaintiff he was her neighbor now and he would visit her and that she must come over and visit him, and that she answered, “No”; that on Friday morning, August 23d, while she was getting breakfast at her home alone, defendant called; she did not know he was coming; she had met him a time or two a year or two before, but aside from that did not know him; on the Friday just mentioned, he stayed for some time and talked to her while she did her work; that he said, “You are a good woman, a good frau”; he did not say he came for anything; he came in and sat down; he tried “to kiss me”; did not want defendant to make love to her at that time; when he made advances that morning, “I pushed him away.” Defendant made advances toward her, but she told him to let her alone and not to take away her honor; that he was trying to make love to her, but she got mad and pushed him outdoors. It is not shown that he made any resistance to this. He did not attempt to come back in the house. After she had pushed him outside, he stayed there a little while explaining things, and asked if he could come back, and she said, “Not that way.” After he left the house that morning, she shut the door; says she was afraid he might come back; did not say that he had any cane or that he limped. On cross-examination defendant says he went to plaintiff's house Monday, the 26th, knowing that her son William was out threshing. Of the transaction in question on the 26th, plaintiff testifies, in substance:

That defendant came to her house about 3 o'clock in the afternoon. I was busy in the kitchen; did not see him come to the house before he got there. He sat down and said time passed slowly. Said Williams' cow was out and was bulling. There was no one at Arnholdt's house that she knows of. He stayed in the house about two hours. I wanted him to leave me alone. He never came back to my house after then, nor did I ever speak to him after that day. That afternoon in the house he said, “Come here on my lap.” I said, “No, I won't do it.” As I went by him, he tore at me and put me on his knee. I tore myself loose. I was afraid of him; didn't think about going out the back door; was thinking about my work. After I got off his lap, I went to my work, and then he grabbed me, and says: “Come on and do it. I am going to do it.” I said, “I am afraid of you,” and I was. I was not willing that he should do this act. He had intercourse with me that afternoon. I tried to get away while he was doing so. He grabbed me and pushed me on the lounge, and said this is the last chance that he would get, and, ‘You will have to do it.’ I fought him, but I couldn't break loose. I tried to keep him from it. I defended myself, but I couldn't do any more. I was so nervous that I couldn't use all the strength I had. I was sick. I did use all the strength I had. I hollered that he should leave me alone. He was very strong. He gave me pain when he did this, which lasted about 10 minutes; I don't know exactly how...