Smith v. Dawley

• Decision Date: 22 October 1894
• Citation: Smith v. Dawley, 92 Iowa 312, 60 N.W. 625 (Iowa 1894)
• Parties: SMITH v. DAWLEY.
• Court: Iowa Supreme Court

92 Iowa 312

60 N.W. 625

SMITH

v.DAWLEY.

Supreme Court of Iowa.

Oct. 22, 1894.

Appeal from district court, Floyd county; P. W. Burr, Judge.

Action for damages for an assault and battery. Judgment for the plaintiff, and the defendant appeals. Affirmed.J. S. Root, for appellant.

Robert Eggert, for appellee.

GRANGER, C. J.

1. The plaintiff, Bertha Smith, is a child about seven years of age. W. J. Smith is her father and next friend in this suit. The petition charges that the defendant, in December, 1892, maliciously struck Bertha Smith with a whip, inflicting upon her a wound from which she has and still does suffer. The answer was a denial and a counterclaim against W. J. Smith, the next friend, for malicious prosecution. On motion of plaintiff, the counterclaim was stricken from the files, and such action of the court is assigned as error. There was no error in the ruling. The next friend is not the party in interest. His rights or liabilities are in no sense the subject or purpose of the action. He is merely in the case to aid one under legal disabilities to assert her rights as against another. The liability of a next friend for costs is not by virtue of the statute, except as it is declaratory of the common law. Vance v. Fall, 48 Iowa, 364. No reasons are suggested, nor are we able to imagine any, why a minor should be compelled to discharge the obligations of one who may appear as next friend for him.

2. The child was struck by the defendant while on its way from school, accompanied by other children. The following extract from the record presents a question for consideration: “Effie or Eva Smith's testimony: Q. What did you do after Hubert Dawley passed her [Bertha]? A. I came up with her. I saw her crying. Asked her what was the matter. She said Hubert hit her with the big end of his whip. (Defendant moves to strike answer as irresponsive and incompetent. Overruled. Exceptions.) Q. What did you do after you came up with her? A. I asked her what was the matter. She said Hubert hit her with the big end of his whip. (Defendant objects, and moves to strike out answer as irresponsive and incompetent. Overruled. Exceptions.) Bertha Smith's testimony: You can state what you said to them [her brother Orrin and sister Effie or Eva] when they came up. A. Told them Hubert Dawley hit me with the big end of his whip. (Defendant moves answer be stricken out as incompetent.) Court: It is receivable as part of the res gestae. (Exceptions.)” This testimony was properly admitted. The statements of the child were made so near the time of the occurrence as to be really a part of it,--contemporaneous with it. The declarations, to be admissible in evidence, need not be precisely concurrent in point of time with the principal transaction. If they are so near to it as to afford reliable information as to the truth of the transaction, it is sufficient. State v. Jones, 64 Iowa, 349, 17 N. W. 911, and 20 N. W. 470;Harriman v. Stowe, 57 Mo. 93. The law characterizes such actions as “verbal acts,” because so related to or connected with what is known as the “principal act” as to be a part of it. It is upon this theory that they may be used to establish or define the principal act. The rule is firmly established upon authority. People v. Vernon, 35 Cal. 49;Insurance Co. v. Mosely, 8 Wall. 397.

3. The mother of the child stated that the child came home crying, and said that Dawley struck her with a whip, and complaint is made of this. There was no objection to the question leading to the answer. The statement is connected with other statements as to her examination of the child and the child's complaint of suffering, etc. The following then appears of record: “Defendant moves to strike out those complaints. Court: I will permit her to state her declarations as to her condition.” We need not consider the correctness of the ruling, because no grounds of the motion are stated. The motion is in the nature of an objection to testimony, and, even though there are grounds for an objection, if they are not stated the court is not required to sustain the objection. Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 282, 44 N. W. 548. The witness then said: “She came home the second night, and complained of her injury. She complained of...