Wert v. Potts

• Decision Date: 23 January 1889
• Citation: 41 N.W. 374,76 Iowa 612
• Parties: WERT v. POTTS et al
• Court: Iowa Supreme Court

41 N.W. 374

76 Iowa 612

WERT v. POTTS et al

Supreme Court of Iowa, Des Moines

January 23, 1889

Decided January, 1889.

Appeal from Polk District Court.--HON. MARCUS KAVANAGH, Judge.

ACTION to recover for injuries resulting from a wound by a pistol ball inflicted by defendants while attempting to arrest another. There was a judgment upon a verdict for plaintiff. Defendants appeal.

REVERSED.

Spurrier & Blackman, for appellants.

No appearance for appellee.

OPINION

BECK, J.

I.

The defendants, in addition to a general denial of the petition pleaded the following among other special defenses: "(4) In relation to the matters and times referred to in plaintiff's petition, the defendants say and aver the truth to be that they were legally attempting to arrest one John Harty for criminal offense, upon a warrant for the arrest of said Harty, issued by one Miller, and delivered to defendant G. W Potts, an acting constable of Saylor township, Polk county Iowa,--said Miller being then an acting justice of the peace of said township, and defendant Hamilton being then and there assisting said Potts in making such arrest under the command and directions of said Potts as constable; that the said Harty resisted such arrest, and assaulted defendants with a base-ball bat, while one Thomas McCall assisted in said resistance by shooting at said defendant Hamilton with a revolver; that defendants, Potts and Hamilton, used only such force as was necessary to protect themselves from great bodily injury at the hands of Harty and his confederate; that they did not fire revolvers recklessly or carelessly; and that any injury received by plaintiff at the hands of the defendants, if he received any, was through his own fault and carelessness." There was evidence tending to support the allegations of the petition and of the answer.

The district court gave the following, among other, instructions to the jury: "It is not claimed in this action that the plaintiff, Edward Wert, was in any way connected or concerned in the attempted arrest of John Harty by the defendants, and the wound inflicted upon him by defendants, if it was so inflicted, was the result of accident. So the liability of defendants depends solely upon whether the defendants acted rightfully, in attempting to make the arrest of said Harty and whether or not the force used by them in making said arrest was an unlawful force, and whether said wound ...