Reizenstein v. Clark
Citation | 73 N.W. 588,104 Iowa 287 |
Parties | J. E. REIZENSTEIN v. EZEKIEL CLARK AND EARL CLARK, Appellants |
Decision Date | 18 December 1897 |
Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. 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.
I.
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.
II. 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: The witness further testified: 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.
III. 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: 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.
IV. Apellants 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, 99 Iowa 479, 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.
V. 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 the ruling.
VI. The petition alleges that the assault was wantonly and maliciously committed, but the court did not charge that plaintiff must prove that it was so done, in order to recover. This is said to be error, and Cottrell v Piatt, ...
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