White v. Spangler
| Decision Date | 21 December 1885 |
| Citation | 26 N.W. 85,68 Iowa 222 |
| Parties | WHITE v. SPANGLER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Buchanan circuit court.
Plaintiff brought this action to recover damages on account of an assault and battery committed by defendant on him, and on account of certain slanderous words spoken by defendant of and concerning him. There was a verdict and judgment for plaintiff. Defendant appeals.Woodward & Cook, for appellant, George Spangler.
E. E. Hasner, for appellee, Alvin White.
The alleged slanderous words impute to plaintiff the commission of the crime of adultery. They were, in effect, that he was living with a woman to whom he was not married, while his lawful wife was still living. Defendant denied that he spoke the words charged in the petition, but admitted the speaking of other words of substantially the same meaning, and he pleaded in mitigation that before the speaking of said words a citizen of Winthrop, the town in which plaintiff and defendant resided, had received letters from reputable citizens of a town in the state of New York where plaintiff had formerly lived, in which it was stated that when he left there he went away with a woman who was the wife of another man, and that he left his own wife at that place; also from citizens of a town in Illinois where plaintiff had lived, in which it was stated that he was a quack and a liar; and he alleged that the contents of said letters were known to the people of Winthrop, and were matter of public talk on the streets of the town, and that he (defendant) had seen and read the letters, and knew their contents, before the speaking of the words, and that the words were spoken at a time when both he and plaintiff were in a high state of excitement, and that he spoke the same without malice, and without intent to injure the plaintiff. On plaintiff's motion this plea in mitigation was stricken out of the answer. Defendant, thereupon, filed an amendment to his answer, in which the same matter was pleaded in mitigation in a somewhat different form, and in which it was averred that defendant believed the statements contained in said letters to be true when he spoke the words, which averment was not contained in the original answer. This amendment was also stricken from the files, on plaintiff's motion. Defendant then filed a second amendment to his answer, in which he alleged that it was currently reported in Winthrop, before the speaking of the words, that plaintiff was living with a woman to whom he was not married, and that he had a lawful wife living at the time, and that defendant believed these reports when he spoke the words. But these averments were also stricken out by the court. Defendant assigns these rulings as error.
In an amended abstract filed by the appellee, it is shown that the first motion to strike was confessed by defendant; also that no exception was taken to the order sustaining the motion to strike out the second amendment to the answer. This abstract is not denied, and it must be taken as true. By confessing the first motion defendant admitted the insufficiency of that portion of his answer to which the motion was directed. He clearly cannot now be permitted to question the correctness of the ruling sustaining it; and as he took no exception to the order sustaining the motion to strike out the averments of the second amendment to his answer, it is equally clear that he was not entitled to have that ruling reviewed; and by pleading one after the court sustained the motion to strike out the first amendment to his answer, he waived any error committed by the court in that ruling. We will therefore not inquire as to the correctness of any of the rulings here complained of.
2. The evidence, without any conflict, showed that defendant committed an assault and battery on plaintiff. It also tended to show that he inflicted considerable injury to his person. The court properly instructed the jury that plaintiff was entitled to recover on the first count of his petition; that being the count in which a cause of action based on the assault and battery was pleaded. The jury were also instructed as to the matters which they should consider in determining the amount which plaintiff was entitled to recover as compensation for the injury sustained by him in consequence of the assault and battery. They were told that they were at liberty to take into consideration all damages to plaintiff for loss of time or inability to attend to his business resulting from said injury, “if you find there was such.” Plaint...
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