Reutkemeier v. Nolte

• Decision Date: 14 February 1917
• Docket Number: 30256
• Citation: 161 N.W. 290,179 Iowa 342
• Parties: FRED REUTKEMEIER, Appellee, v. BEN NOLTE, Appellant
• Court: Iowa Supreme Court

161 N.W. 290

179 Iowa 342

FRED REUTKEMEIER, Appellee, v. BEN NOLTE, Appellant

No. 30256

Supreme Court of Iowa, Des Moines

February 14, 1917

Appeal from Winneshiek District Court.--A. N. HOBSON, Judge.

ACTION for damages, actual and exemplary, by the plaintiff against the defendant for the alleged debauching of his minor daughter. Actual damages for expenses and loss of service are claimed under the provisions of Code Section 3471. The defense was a general denial. There was a verdict for the plaintiff for $ 6,500, and the defendant appeals.

Affirmed.

Frank Sayre and E. W. Cutting, for appellant.

William S. Hart and Boice & Hook, for appellee.

EVANS J. LADD, WEAVER and PRESTON, JJ., concur.

OPINION

EVANS, J.

The facts, as contended by plaintiff, briefly stated, are that in September, 1912, the defendant, a man then 21 years of age, had carnal knowledge of the plaintiff's daughter, Mary, then a child only 14 years of age. In June, 1913, she gave birth to a child, alleged to be the result of such intercourse. The plaintiff was, at the time, a farmer, living upon his own farm. He was a widower, with three daughters and three sons, all living with him at his home. The evidence on behalf of the plaintiff was quite abundant to sustain the verdict. The appeal is presented here on assignments of error assailing certain rulings in the admission of testimony and certain instructions of the court.

I. The most important and doubtful question raised relates to an alleged privileged communication, the claim of privilege being based on Code Section 4608. Plaintiff's daughter was a member of the Presbyterian church. In the month of March before her child was born, she was asked to appear and did appear before the church session. Such session consisted of the pastor and the three ruling elders. She appears to have confessed her sin, and to have made certain communication to the elders. On the trial of this case, the defendant sought to show what such communication was. It is claimed for the defendant that such communication involved others, as well as himself, and that at least it cast much uncertainty upon the paternity of the child. The plaintiff objected to such line of testimony, both on the ground that it was not binding upon him as substantive testimony, and that, in any event, it was a privileged communication under the provision of the statute. The first objection was clearly good as far as it went. The defendant, however, sought to lay a foundation in the cross-examination of the daughter Mary as a witness for her impeachment, by calling her attention to such alleged communication. Of course, if the communication was not privileged, it was competent, even as against the plaintiff, to offer the same for the purpose of impeachment. On the other hand, if the communication was privileged, it was no more available to the defendant for impeachment purposes than for any other purpose. If it was privileged, then, under the view of the trial court, it would be equally improper to lay a pretended foundation for its introduction as impeaching testimony. The question, therefore, was precipitated in the cross-examination of the witness Mary. The trial court exercised its discretion to stop temporarily the cross-examination, and to permit the parties, in the absence of the jury, to introduce evidence of such facts as were material to be considered, to enable the court to determine whether the communication in question was privileged. It is not free from doubt, upon the record before us, whether the cross-examination of the witness at this point was justified by the state of her testimony at the time. In view of the fact, however, that the attention of both court and counsel appears to have been concentrated upon the question of privilege, as decisive of that line of examination, we are disposed to meet that question as the one of larger merit. Code Section 4608 is as follows:

"No practicing attorney, counselor, physician, surgeon, or the stenographer or confidential clerk of any person, who obtains such information by reason of his employment, minister of the gospel or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the party in whose favor the same is made waives the rights conferred."

In applying this section to the case before us, two questions naturally arise:

1. Was the communication a confidential one?

2. Were the recipients of such communication ministers of the Gospel, within the meaning of the statute?

As to the first question, it is apparent that the communication was of such a nature as would usually and naturally be deemed confidential, if for no other reason than that it involved a confession of sin to a spiritual adviser. We feel no hesitancy in holding the affirmative on this question. The second question presents greater difficulty. What is a "minister of the Gospel," within the meaning of this statute? The law as such sets up no standard or criterion. That question is left wholly to the recognition of the "denomination." The word "minister," which, in its original sense, meant a mere servant, has grown in many directions, and into much dignity. Few English words have a more varied meaning. In the religious world, it is often, if not generally, used as referring to a pastor of the church and a preacher of the Gospel. This meaning, however, is not applicable to all Christian denominations. Some of them have no pastors and recognize no one as a minister in that sense, and yet all denominations recognize the spiritual authority of the church, and provide a source of spiritual advice and discipline. The record herein contains a copy of the "Confession of Faith" of the Presbyterian church, as well as other standard booklets setting forth the doctrine and polity of that denomination. The following excerpts therefrom will sufficiently indicate the same:

"That our blessed Saviour, for the edification of the visible church, which is his body, has appointed officers, not only to preach the gospel and administer the Sacraments, but also to exercise discipline, for the preservation both of truth and duty; and that it is incumbent upon these officers, and upon the whole church, in whose name they act to censure or cast out the erroneous and scandalous, observing, in all cases, the rules contained in the Word of God.

"The ordinary and perpetual officers in the church are Bishops or Pastors; the representatives of the people, usually styled Ruling Elders; and Deacons.

"The pastoral office is the first in the church, both for dignity and usefulness. The person who fills this office hath, in Scripture, obtained different names expressive of his various duties * * * * As it is his duty to be grave and prudent, and an example of the flock, and to govern well in the house and kingdom of Christ, he is termed presbyter or elder.

"Ruling elders are properly the representatives of the people, chosen by them for the purpose of exercising government and discipline, in conjunction with pastors or ministers. This office has been understood, by a great part of the Protestant Reformed churches, to be designated in the Holy Scriptures by the title of governments; and of those who rule well, but do not labor in the word and doctrine.

"1. The church session consists of the pastor or pastors and ruling elders, of a particular congregation.

"2. Of this judicatory, two elders, if there be as many in the congregation, with the pastor, shall be necessary to constitute a quorum.

"3. The pastor of the congregation shall always be the moderator of the session, except when, for prudential reasons, it may appear advisable that some other minister should be invited to preside, in which case the pastor may, with the concurrence of the session, invite such other minister as they may see fit, belonging to the same presbytery, to preside in that case. The same expedient may be adopted in case of the sickness or absence of the pastor.

"4. It is expedient, at every meeting of the session, more especially when constituted for judicial business, that there be a presiding minister. When, therefore, a church is without a pastor, the moderator of the session shall be either the minister appointed for that purpose by the presbytery, or one invited by the session to preside on a particular occasion. But where it is impracticable, without great inconvenience, to procure the attendance of such a moderator, the session may proceed without it. * * *

"6. The church session is charged with maintaining the spiritual government of the congregation; for which purpose they have power to inquire into the knowledge and Christian conduct of the members of the church; to call before them offenders and witnesses, being members of their own congregation, and to introduce other witnesses where it may be necessary to bring the process to issue, and when they can be procured to attend; to receive members into the church; to admonish, to rebuke, to suspend or exclude from the Sacraments, those who are found to deserve censure; to concert the best measures for promoting the spiritual interests of the congregation, to supervise the Sabbath school and the various societies or agencies of the congregation; and to appoint delegates to the higher judicatories of the church.

"To these officers the keys of the kingdom of Heaven are committed, by virtue thereof they have power respectively to retain and remit sins, to shut that kingdom against the impenitent, both by the...