42 Iowa 274 | Iowa | 1875
Lead Opinion
I. The evidence established that the muscles of plaintiff’s right arm and shoulder were wasted and shrunken. The theory of the defense was that the injury was simulated, and that the appearance of the arm and shoulder was the result of long continued disuse. The plaintiff at the suggestion of the physicians visited Dr. Andrews of Chicago, and was examined by him.
“ The doctor prescribed that I should keep the weight of my arm off of my shoulder as much as possible; that I should give it rest. And he prescribed a liniment that I should use. The only prescription he gave or advised was to carry the weight of the arm on the shoulder as little as possible; the use of the liniment, rest for the arm, and the wearing of flannel on the arm. That was the only medicine he gave me, and those were the directions that he gave to Dr. Rouse. Dr. Andrew's made an examination of my arm and shoulder at that time. I think that' Dr. Andrews made an examination of my collar bone. I think there was no appearance of the bruise at that time. I followed Dr. Andrew’s directions.” The objection urged to this testimony in argument is that it is hearsay. We are very clear that it is not vulnerable to this objection. Any person may testify that a thing was said oran act was done who is cognizant of the fact. The only question is w'hetlier it is competent to show at all that the thing was said or the act done. If it is competent to establish the fact, it may be done by one who was present, just as w'ell as by the person who did it. In this case the propriety, necessity, or reasonableness of the direction does not necessarily arise. The material question is, was such direction given? We think it can scarcely be questioned that if Dr. Andrews had himself been on the stand he might have testified that he directed plaintiff to carry his arm in a sling.
If evidence is competent and admissible for any purpose, it cannot be rejected because it may be considered by the jury
III. After a very full and searching cross-examination, plaintiff was asked upon his re-examination to state fully how he conld earn $2,000.00 a year. ■ Plaintiff answered as follows: “ During the last year that I ran the farm I had a shingle mill and made with it at the rate of $2,000.00 a year.” The same fact was substantially stated in his cross-examination, and we are unable to see how a repetition of it in his re-examination conld have worked any prejudice.,
Eollowed to its logical results the doctrine of this instruction would practically deny protection to anyone traveling by
YII. It is urged in the next place that the court erred in refusing to give the third instruction asked by defendant. Appellant, in this respect, misapprehends the record. The record does not show that the third instruction was refused. The abstract impliedly shows that it was given.
The jury found specially that the present condition of plaintiff’s arm is not due to the substantial disuse of it for the past two years and a half. It must be admitted that this special finding is contrary to this third instruction, if it be conceded that the evidence shows the shrunken condition of the arm can be traced only to disuse. But the jury also found specially that plaintiff’s arm was broken on the freight train October 1st, 1870. Defendant’s theory is that plaintiff sustained no injury. The jury have found he did. An erroneous finding that the shrunken condition of the arm wás not occasioned by disuse could only affect the amount of damages, and not the right of plaintiff to i’ecover. But it is not claimed that the verdict is excessive, if. plaintiff' is entitled to recover at all. This finding, therefore, worked no prejudice, and becomes immaterial.
X. Lastly it is claimed that the verdict should be set aside because of misconduct of the jury. An affidavit was filed showing that during the night of the 16th day of August and on the 17th day of August, up to the time the jury agreed on their verdict, individual members of the jury were allowed to separate and retire from the jury room repeatedly without the attendance and out of sight and hearing of the bailiff, and that a member of the jury threw a paper with something written thereon, which an attorney of plaintiff picked up, and refused to show to defendant’s attorney or to a bailiff of the court. Appellant seems to concede under the authority of Cook & Owsley v. Walters, 4 Iowa, 77, that the mere separation of the jury without some showing of prejudice will not be sufficient to set aside the verdict. And see, also, Boggs v. Chicago & Northwestern R’y Co., 29 Iowa, 577. It is claimed, however, that an unwarranted' communication on the part of the jury with plaintiff’s attorney has been shown. The affidavit of this attorney, however, shows that the paper was not probably intended for him, that his attention was directed to it’ upon hearing it fall, and that he immediately carried the paper to the judge and exhibited it to him in the presence of two other parties; that he never in any manner had any communication with any member of the jury, and that he has the original paper in his 'possession, ready to exhibit either to the curious or to legal observation. Under this state of facts there is no ground for holding that the jury held improper communication with any one, from which prejudice could possibly result.
We have examined seriatim all the objections urged, and we find no error in the record. Aeeibmed.
Rehearing
ON BE HEARING.
Upon the petition of appellant a rehearing herein was granted. Some of the points made in the petition for rehearing require notice.
In Barker v. Barker, supra, which is the only case in which the question, received any considerable attention, the court said: “The question whether a suit is prosecuted upon a champertous agreement is one outside of the real merits of the case. And although an issue might possibly be made on it, yet we think it need not necessarily be pleaded, but that if it comes to the knowledge of the court in any proper manner, it will refuse longer to entertain the proceedings. It would seem to stand upon similar grounds with an action for divorce prosecuted by collusion between the parties. The court, on arriving at a knowledge of the fact, would not be confined to the strict rules applicable to evidence offered on the trial of the case, though it undoubtedly should not proceed upon mere, suspicion, or without giving opportunity for avoiding the alleged champerty by proper proofs on the other side. In this case the evidence is such as leaves no doubt in our minds of the existence of the agreement, and its existence is assumed in the brief of counsel for appellants.”
In this case no question seems to have been made as to the admissibility of the evidence, and it clearly established the existence of a champertous agreement between the attorney and his client. In the case at bar the answer is merely a general denial of each allegation of the petition. Upon cross-examination of plaintiff defendant asked the following questions: “State what per cent, if any, of the recovery, if any, you have contracted to pay your attorneys ? At whose expense has this suit thus far been carried on? State whether Board-
These questions were objected to because immaterial and irrelevant to the issue, incompetent and improper matter of cross-examination; and the objection was sustained.
It is to be observed that the effect of the matter sought to be proved is to abate the action. Section 2732 of the Code, provides that “ matter in abatement may be stated in the answer .or reply, either together with or without causes of defense in bar.”
And section 2704provides: “Under a denial of an allegation, no evidence shall be introduced which does not tend to negative some fact the party making the controverted allegation is bound to prove.”
Under these provisions of our statute we are well satisfied that proof of matter tending to abate the action, if objected to, ought not to be received, if such matter has not been pleaded.
Any other construction would be productive of great hardship and confusion. A party might be called upon to meet an important issue, suggested for the first time in the cross-examination of his own witnesses, or the testimony of those produced for the defense. If, as is said in Barker v. Barker, the court ought not to proceed without giving opportunity for avoiding the alleged champerty by proper proofs on the other side, the plaintiff ought, in a proper case, to have a continuance, for the purpose of procuring testimony, and we would thus have the anomaly of a continuance for the purpose of procuring proof upon a question not put in issue by the pleading.
Without further elaboration of this question we have no doubt that the objection to the proffered testimony was jiroperly sustained.
II. In the discussion of the eighth point reviewed in the
The jury found that plaintiff’s arm was not broken by the accident on the freight train, October 1st, 1870, but that it was broken at the time of the accident at Moingona on the day preceding.
The jury also returned the following special findings: “At the time of the accident to the freight train was plaintiff thrown against the conductor’s desk? Ans. Yes. Was the jffaintiff thrown by the freight train accident with his shoulder and neck against the stove in the car? Ans. Yes. Did the plaintiff receive any injury at Moingona or at the freight train accident which has caused permanent disability to his arm? Ans. Yes. Was the present condition of plaintiff’s arm caused by an injury received October 1, 1870, on defendant’s freight train? Ans. Yes.”
These questions were submitted to the jury by. the defendant. The answers clearly show the existence of circumstances from which the jury might well have found some injury was sustained at the happening of the accident on the freight train. And the last finding of the jury involves a distinct assertion that plaintiff sustained an injury October 1, 1870, on the freight train. The general verdict for plaintiff also involves and includes such a finding, for the jury find the arm was hroTcen at Moingona, and, on account of the accident occurring there, the jury, under the direction of the court, found for defendant.
The jury did, then, find that injuries were sustained at the time of the freight train accident, for which the plaintiff was entitled to recover something. This being the case, the cause of the shrunken condition of the arm could affect only the measure of damages, as before said.
The verdict is small, $ 1,200.' It is not claimed that it is excessive. Upon the contrary it is conceded that it is not too large, if plaintiff is entitled to recover anything.
Under this state of facts the sjsecial finding of the jury that the present condition of plaintiff’s arm is not due to the
These are the only points in the petition for rehearing, which seem to us to require notice.
The opinion is refiled, and the judgment
Affirmed.