Stewart v. Anderson

• Decision Date: 11 May 1900
• Citation: 82 N.W. 770,111 Iowa 329
• Parties: STEWART v. ANDERSON.
• Court: Iowa Supreme Court

111 Iowa 329

82 N.W. 770

STEWART

v.ANDERSON.

Supreme Court of Iowa.

May 11, 1900.

Appeal from district court, Audubon county; Walter I. Smith, Judge.

The defendant appeals from judgment rendered on a verdict against him. Affirmed.Nash, Phelps & Mosier, J. M. Graham, and Delano & Meredith, for appellant.

Fred H. Blume and John M. Griggs, for appellee.

LADD, J.

This action is based on an alleged breach of a promise to marry, said to have been made December 2, 1895, and cemented by sexual intercourse two days later, resulting in the birth of a child August 26, 1896. Prior to all this, however, in the springtime of 1893, there had been an indefinitearrangement to marry in the fall. Plaintiff was then a girl of 16 years, and the defendant 30 years old. According to her story, they had become unduly intimate in August or the forepart of September of that year, and later she had gone to Mills county to remain until a child was born. He fixed October 1st as the date of their first improper relations, and declared he was not to marry her unless the child came after July 1, 1895. The time of the baby's birth is in dispute; she insisting it was born June 3d, and he that this occurred April 13th. She returned to her home in January, 1895, and thereafter no conversation was had concerning matrimony, nor were their previous relations resumed prior to the date first mentioned. The evidence bearing on the main issue (i. e. whether they became engaged to marry December 2, 1895) is in conflict, and the jury's verdict is final.

1. The parentage of the first child necessarily had an important bearing on the outcome of the trial. The jury might have concluded that if born June 3d it was defendant's, and not his if born April 13th. Mrs. Salmonds was permitted to testify, from seeing the baby on a particular occasion, with reference to its being a newborn baby, or one that had been born some time, and also to particularly describe it. She thought it must have been a newborn baby. Undoubtedly she was competent to speak on the subject, as four children had been borne by her. The appellant insists, however, that this was not a subject of expert testimony. But it would have been very difficult, if not impossible, to so describe a child of such tender age as to enable the jury to judge whether at the time it was a few days or a few weeks old. The rule which governs in such a case was thus stated in Yahn v. City of Ottumwa, 60 Iowa, 429, 15 N. W. 257: “When the matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time,” a conclusion may be given. Bizer v. Bizer (Iowa) 81 N. W. 467; 1 Greenl. Ev. § 440, and note. It was so held in Benson v. McFadden, 50 Ind. 431, where a witness was permitted to give his opinion of the age of another when a contract was signed. In State v. Smith, 61 N. C. 302, medical experts were allowed to give their opinion that the injured girl was under 10 years of age. Testimony that the weather was warm and pleasant at the time was admissible, as tending to show she saw the child in June, rather than in April.

2. A part of John Salmond's deposition was excluded. He had testified to hearing of the child's birth in April, and, on cross-examination, that Otis had so informed him, and that Watson had come to his place about the middle of that month. Otis had previously sworn the conversation with Salmonds was on the afternoon of the day the child was born, and that Watson came up while they were talking. The latter had testified to having quit work for McClain on that day, which he fixed as April 13th; and McClain, as the middle of the month. The questions and answers excluded, in so far as material to our inquiry, may be set out: “Q. Do you remember of any other circumstance happening on the same day that you first learned of the birth of this child of Mattie Stewart's? And, if so, relate. A. When Otis told me about it, it was in the afternoon. I recollect where he told me about it. He told me that his wife helped to catch the kid. He and I were at the barn, and I recollect of seeing a young fellow coming past Wilkin's house when he was telling me about it. Q. Who was this young man you refer to? A. Elmer Watson. Q. For whom did he work, and when did he quit work for said person, with reference to the time Otis related to you the circumstance of the birth of this child? A. Elmer or E. P. McClain. It was the same day.” Undoubtedly a witness may state that he had a conversation with another, on the subject inquired about, at a specified time, or may mention some collateral circumstances as a reason for recollecting the fact spoken of. Thomp. Trials, § 373; Gillett, Ind. & Col. Ev. § 213; Blackwell v. Hamilton, 47 Ala. 472; Angell v. Rosenbury, 12 Mich. 241; Railway Co. v. Van Steinburg, 17 Mich. 99;O'Hagan v. Dillon, 76 N. Y. 170. It is a matter of human experience that memory of dates and events depends largely on others associated more or less closely with them, and for this reason a witness is allowed to speak of contemporaneous circumstances, not in detail, but of their existence, as confirming the recollection. That Salmonds and...