Reizenstein v. Clark

• Decision Date: 18 December 1897
• Citation: 73 N.W. 588,104 Iowa 287
• Parties: REIZENSTEIN v. CLARK ET AL.
• Court: Iowa Supreme Court

104 Iowa 287

73 N.W. 588

REIZENSTEIN

v.CLARK ET AL.

Supreme Court of Iowa.

Dec. 18, 1897.

Appeal from district court, Johnson county; M. J. Wade, Judge.

Action at law for an alleged wanton and malicious assault. Defendants denied the alleged assault, and pleaded that whatever they did was in self-defense, and other matters which might be considered in mitigation of damages. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal. Affirmed.Ranck & Bradley, G. A. Ewing, and John W. Slater, for appellants.

Remley & Ney and Bailey & Murphy, for appellee.

DEEMER, J.

In his petition, plaintiff alleged that he received serious and dangerous injuries, some of which were permanent in their nature and character. He proved upon the trial, without objection, that he was ruptured in the assault made upon him by defendants. Appellants contend that they were not bound to anticipate the claim of such injury from the averments of the petition, and that all evidence relating thereto was incompetent. They made no such objections in the lower court, and cannot present them here for the first time.

2. On cross-examination, plaintiff was asked as to certain statements (or, rather, as to the want of certain statements) made by him, as to the extent of his injuries, upon the trial of a criminal case growing out of the assault. These questions followed, which were disposed of in the manner indicated: “Q. Did you, on that trial, when asked if you were injured, say that you were ruptured at the time of that occurrence? (Same objection. Sustained. Defendants except.) Q. What did you say? A. I started to answer your questions, and the attorney objected, and the court sustained the objection; so the question was not repeated to me. Q. Did not you refuse to answer? A. No, sir; it came about just as it did this time. You asked the question, and I was getting ready to answer you, and the attorneys objected. You asked me then if I refused to answer, and I said, ‘No;’ but the objection had been made, and the court sustained it.” The witness further testified: “I cannot recollect all the questions, that way, that was asked me at the trial before 'Squire Dodder. I do not remember what was asked, and I do not remember what answer I made. I would tell you if I could think of it.” The shorthand reporter who took down the evidence at that hearing was called as a witness for the defendants, and asked to read certain questions propounded to, and answers made by, Reizenstein. To this an objection was interposed upon the ground that it was in no manner contradictory of what he had said upon the witness stand in this trial, and the objection was sustained. Surely, there was no error in this. Appellants were granted all they were entitled to.

3. Appellee was asked upon cross-examination if he had not stated to one Bradley, prior to the alleged assault, that he was ruptured, and also if he had not filed a petition before the city council asking to be relieved from working poll tax on account of physical infirmity. Objections to these questions were sustained, and, as we think, erroneously. But we find, on turning to the record, that the witness answered in response to further interrogatories as follows: “I do not remember of ever having a conversation with Bradley while he was a member of the city council, in 1893, with reference to getting poll tax remitted. I never made application to the city council to have my poll tax remitted. I do not know whether I was at the city council on the 3d day of July, 1893, or not.” Whatever error there may have been was cured by the subsequent proceedings. Moreover, defendants proved by Bradley the statements made to him, and introduced evidence to the effect that appellee had presented to the city council the petition referred to; and the whole matter was again inquired about when plaintiff was placed upon the stand in rebuttal.

4. Appellants sought to show upon cross-examination that appellee had been assaulted at other times prior to the assault in question. They did not contend, however, that these assaults resulted in permanent injury, or that any of the disorders from which plaintiff then claimed to be suffering were due to these prior assaults. The objections to the questions were properly sustained. Lorig v. City of Davenport (Iowa) 68 N. W. 717. Moreover, appellants were permitted to prove, as a part of their case, that appellee had been assaulted on the two occasions referred to. And there was no prejudice in any event.

5. At the close of the introduction of appellee's evidence, appellants moved for a verdict on the ground that the assault was not a joint one. Their motion was overruled, and exception taken. We will not review the evidence bearing upon this question, and content ourselves by saying that there was no error in...