Stone v. Moore

• Decision Date: 01 June 1891
• Citation: 49 N.W. 76,83 Iowa 186
• Parties: STONE v. MOORE.
• Court: Iowa Supreme Court

83 Iowa 186

49 N.W. 76

STONE

v.MOORE.

Supreme Court of Iowa.

June 1, 1891.

Appeal from superior court of Cedar Rapids; JOHN T. STONEMAN, Judge.

This is an action for damages for an alleged assault and battery inflicted upon the plaintiff by the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff for $500. Defendant appeals.M. P. Smith, for appellant.

Warren Harman, for appellee.

ROTHROCK, J.

1. Numerous objections are made by appellant to rulings of the court during the trial. A number of the alleged errors are found to have no place in the record. The appellee filed an additional abstract, which shows that fact, and the parties stipulated that where the abstracts are in conflict that of the appellee is to be taken as correct. We will proceed to consider such alleged errors as are to be found in the case as presented by the parties, and which appear to demand the attention of this court. If credence is to be given to the testimony of the plaintiff, the defendant committed an outrageous assault upon her in her own house, and struck her twice with a horsewhip, and used violent and indecent language to her. She and her husband lived in a house which they rented from the defendant, and she claims that the defendant's ostensible purpose in visiting the house was to collect rent. She claimed that at the time of the assault she was pregnant, and that the abuse of the defendant produced an abortion, and injured her health to so great a degree as to render her unable to perform the labor which before that time she was accustomed to do. The defendant, in his testimony, denied that he made any assault upon the plaintiff, and denied that he was at or near the house of the plaintiff at the time when the alleged assault was committed. In other words, he relied upon an alibi. He was corroborated by other witnesses to some extent as to his whereabouts on the day of the alleged assault. We are asked to reverse the judgment because it is not supported by the evidence. We have stated enough of the facts sworn to by witnesses on the trial to demonstrate that we cannot interfere with the verdict. The evidence presented an unmistakable and irreconcilable conflict, and, having been passed upon by the jury, and undergone the scrutiny of the learned judge who tried the case, we cannot say that the court erred in overruling the motion for a new trial on this ground.

2. A witness for the plaintiff, who appears to have been acquainted with her, and had become interested in her condition, and saw her frequently, was asked if she knew the physical condition of the plaintiff at the time of the trial. The question was objected to because it was not shown that the witness was a physician, or familiar with the science of medicine. The objection was overruled, and the witness answered: “I know it [plaintiff's condition] to be one of feebleness and inability to do hard work.” It appears to us that there is no valid objection to the ruling of the court in permitting this evidence to be introduced. The question did not call for the opinion of a medical expert. It was evidence of a fact open to the observation of any one who was familiar with the plaintiff and accustomed to observe her appearance and movements. That the evidence was competent, see Tierney v. Railway Co., (Minn.) 23 N. W. Rep. 229;State v. Shelton, 64 Iowa, 333, 20 N. W. Rep. 459; Lawson, Exp. Ev. 466.

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