Defendant denies generally, but admits that, at the date stated, plaintiff resided upon his farm, and used and occupied a portion of the real property described in the petition. He denies that plaintiff occupied said farm as a tenant; denies there was any summer kitchen on the premises; denies that plaintiff and her family were in the actual possession of any summer kitchen. He says he rented to plaintiff’s husband the house and the use of a part of the barn, and one acre of ground upon said premises, for $5.00 a month, subject to the right of defendant and his sons to use the barn yard and other buildings; that in the yard was a one-story granary, partitioned off into grain bins, at all times in the actual possession of defendant, in which he had stored tools, harness, etc.; and that said building was never rented to plaintiff’s husband or to anyone, except that defendant’s sons, farming said land, used the same; that, on the date in question, he was in said granary, removing some articles and arranging to use said building for himself and his son, who was farming said lands, when plaintiff made a vicious assault upon him with a hatchet, and endeavored to drive defendant from his premises, and made an assault with intent to inflict great bodily injury; that defendant, without malice, and without using more force than was necessary, grasped the plaintiff’s hand which held the hatchet, and took the hatchet from her; that he did not injure plaintiff, and that, if she was injured, it was by other means and other circumstances than by any act on the part of defendant. By way of counterclaim against the plaintiff, defendant says that, on the date in question, plaintiff maliciously, through her husband, acting for her and on her behalf, filed an information against defendant, charging him with the crime of assault with intent to do great bodily injury, under which he was arrested; that such proceedings were without probable cause; that there was never any trial under said information, but that the same was dismissed for want of prosecution ; that defendant has been damaged in the sum of $1,000, for which he asks judgment. The reply denies all such allegations.
Without going into the evidence bearing upon all questions in the ease, it seems necessary to set out a part of it at least, as applicable to the more important points.
Plaintiff is a Polish woman, wife of Fred Horst, to whom she had been married 10 or 11 years; and there were three young children. She, with her husband, children, and her father and mother, were living on the premises in question on October 5th, the day of the trouble. The evidence introduced on behalf of plaintiff tends to show that plaintiff and her husband rented
“The door in the kitchen of the main house was on the south side, and this summer kitchen was about 15 feet northwest of the house. The door in the summer kitchen was also on the south side of it, so that you came out of the kitchen door in the house and would go north along the west side of the house into the door leading into the summer kitchen. These two rooms in the summer kitchen were boarded up with lath. One side of this granary is a summer kitchen. ‘They have got a chimney in there. On the other side was not any chimney.’ The bin or granary part is closed from the kitchen part, and you have to go around to the west door of the granary, to get into the grain bins. The part of this granary that is the summer kitchen is on
They baked bread in the summer kitchen. On a cold day, they baked it in the other kitchen. Just before the service of the notice to quit, Fritz, one of the defendant’s sons, had told plaintiff that she must get her stuff out of the summer kitchen within 24 hours. Adolph never asked her for it, but he gave her the 30-day notice before set out. On October 4th, in the morning, Fritz and Adolph went into this summer kitchen where plaintiff was working, and told her that, if she did not get every piece out of there, they would kick it out. Plaintiff asked them to wait and see her husband, who was working at another place. On said date, plaintiff put Adolph and Fritz out of the summer kitchen, and shut the door. She told them at the time that they could not come in there. She says it made her mad when the Handke boys came there that morning and took her beets and potatoes out of the building. She told them they could not come into the summer kitchen before November. The next day, October 5th, defendant came to plaintiff’s house and demanded that she remove her things from the summer kitchen. She told him she was not going to give him possession of it, as she says:
“I said to him, I was not going to let him in the summer kitchen; that I had rented it. He said I didn’t rent it at all. I said to him, ‘Before they take this out, I call my husband.’ He said he had got nothing to do with him. He said, ‘I go out and take every piece out.’ I said for you not to do that, ‘you call him.’ Then he started, to go out to the summer kitchen, and I went also. He went first, and I went out after him. I got in the summer kitchen ahead of him. I went past him in the door.
She says that she was not angry; that she had her hands down by her side; that she thought to scare defendant; that she told defendant to call her husband, and said to defendant, “Never touch it before I call my husband;” that she called for her mother to help her; that her hatchet fell on the ground, and then defendant’s boys came up and came in the door, as she fell down; that defendant was inside the kitchen when he caught her by the hands, by the stove; that there was a good hot fire in the stove; that she was cooking something there for the folks. The evidence shows the situation and conditions outside, how she claims she was thrown out of the kitchen and down the step, how she fell,.her injuries, and the effects thereof. Medical witnesses say that she was severely injured; that it caused a miscarriage: and they describe in detail matters of this kind. In all, five or six witnesses were examined for plaintiff, and about the same number for defendant, including himself and some of his sons. Other witnesses testify further in relation to the building and other matters. One says there was a tin pipe chimney in the summer kitchen; that it was painted gray, not red, like the barn; that defendant said he was going to set plaintiff’s things out of the summer kitchen, referring to the building as a summer kitchen; that defendant helped to carry the things out of it; that, after defendant got plaintiff out of it, his boys did remove all of her things out of the building. The partition between the two rooms in this granary or summer kitchen is boarded up nearly to the ceiling-. The gable of the granary was all closed. Defendant knew that plaintiff had some things in this building.
Defendant testifies about renting the granary to plaintiff as follows:
£ £ She asked me if she can rent, the granary. Q. Did she ask permission to put any stuff in the granary at any time ? A. In the first place, she put. it in without asking. What she said afterwards about putting the stuff in the granary, she said to my boys.”
In July, before this trouble, plaintiff refused to board de
“They told Adolph that they would not move, — they did not have any written notice. Then I told Adolph to go to Neola and get them a writing, and this written notice was prepared.”
Defendant knew about the plaintiff’s refusing to let his sons have this summer kitchen the day before the trouble.
Defendant further testifies:
“My son went to Neola, and had this notice to quit prepared, and brought it back to me, and showed it to me before it was served on Horsts. He said: ‘I have got the notice here,’ and read it off, and then he put it in his pocket and took it along. That was all right with me. That was the date it bears, October 3, and the next day my sons had some trouble with Mrs. Horst about this summer kitchen. I knew that meant that he [Adolph] was the landlord of the Horsts on this place, and I knew that this notice meant that Adolph wanted the Horsts to quit, and leave the place in 30 days. It was a 30 days’ notice to quit.”
Defendant knew that plaintiff had refused to let his sons have the building the day before the trouble. Defendant testifies :
“The next day after I had this notice, Exhibit 1, served on the Horsts, my sons took some goods over to the Horst place in a wagon, to put in the summer kitchen or granary. I told them they could set their goods in the granary. I knew when they left my place that they were going to put their goods in this granary. Q. And that was your intention and purpose, was it not? A. Yes, sir. I told them they could put them in the granary there, — yes, sir. * * * My son Adolph went down to Handke’s place with me in the buggy. It had been arranged between my boys and me that I was to go down and see Mrs. Horst the next day about this matter. The boys and I had talked that matter over. Fritz went down, to the Horst place early in the morning, and I told him that Adolph and I would be down there to the Horst place as soon as we got our chores done. Yes, I stopped and told Spencer to come along with me. I had known him for several years. I had known him and been
Defendant had told his sons that he wanted them to help him take her things out, if necessary. He testifies that plaintiff got into the kitchen ahead of him, and admits that he took hold of plaintiff’s wrists and held her hands until she got out of the granary; that she was trying to get loose from him all the time; that he was pulling her back toward the door, intending to get her out of the granary; that he did put her out; that he was mad and excited; that he and his sons took everything of hers out of the granary and put it in the yard, and then went away. Defendant further testifies:
“I knew my son Adolph Handke signed the notice to quit as landlord, and I knew that meant that he was the landlord of the Horsts on this place; and I knew that this notice meant that Adolph wanted Horsts to quit and leave the place in 30 days.”
Defendant’s son Fred says:
“My father, defendant, helped us take Mrs. Horst’s things out of this granary on October 5,1916. Whatever I did in helping to take the things out of that granary that day, I did under the direction of my father.”
Though there is a sharp conflict in the testimony at some points, some of the foregoing matters are not disputed. Defendant’s evidence tends to show that, in 1915, plaintiff asked defendant and his son Adolph to rent her an acre of ground; that Adolph and Gus lived in the room upstairs, during 1915 and 1916, and got their meals at Horsts’, while working the farm; that the board of the sons paid the rent on the premises in controversy to July, 1916; that no rent was paid by the Horsts after
1. Several assignments are made, covering the thought that the court ignored the issue tendered by defendant that he was in possession of the granary at the time of the assault, and that he was rightfully in possession thereof, and that the court erred in failing to instruct that defendant was in the actual use and possession of said granary all of the time, and in restricting, by instructions given, the right of defendant in his use of his own buildings, and in ignoring his right of the full possession of the same, and in holding that, under certain circumstances, he was a trespasser. We think the court did not ignore defendant’s claims. The matters are quite fully covered by some seven or eight instructions. Under the evidence, the jury could have found that defendant had rented the premises for the year 1916, covering the transaction in question, to his sons, and that they had rented the dwelling and other outbuilding’s to the'plaintiff. The mere fact that defendant was the owner of the fee, under
In Denecke v. Miller, 142 Iowa 486, it was held that, where the property was not to be sublet, on penalty of forfeiture of the lease, the subletting of a part of the building does not amount, in itself, to such a breach of the condition as to justify a forfeiture. Possibly, under some circumstances, and for some purposes, the rule might be different as to a mere cropper; but that question is not in this ease, since the rights of the parties, as between defendant and his sons, for the crop rent, are not involved. The jury could have found that the defendant, prior to the alleged assault, knew of all these matters, and knew of plaintiff ’s claim; and, though there is a dispute as to some of these matters, the jury could have found that the plaintiff was herself personally in that part of the building which she claims was a part of the dwelling, and that defendant went in for the sole purpose of dispossessing her, after his two sons had failed, the day before. The notice to quit had been served only a day or two before this transaction, and, under the notice, she would have 30 days to vacate. Though this notice is signed by the son, according to defendant’s own evidence, it was prepared and served in defendant’s behalf. The jury was justified in finding, from the evidence, that defendant went to the premises on the 5th for the sole purpose of dispossessing her of the building in question; that he was the aggressor; and that he went there ex
The jury was told that, under the evidence, the building in question had been used by defendant as a granary and storehouse, and that he had certain personal property therein; that, this being so, he had the right to enter the said building for any purpose consistent with his use of said building for such purpose, but that he did not have the right to enter it for the sole purpose of removing therefrom, forcibly and against the protest of plaintiff, the personal property which she and her family had in the building, and were then using; that, when defendant sought to enter the said building for that purpose, and that alone, he thereby became a trespasser. In Instruction 8, the court said that it was conceded that, when defendant entered the building, or was in the act of doing so, plaintiff seized a hatchet, for the purpose of preventing him from removing her chattels; that the manner in which she used the weapon, and what she in fact did with it, were matters of dispute between the parties. The court then stated the claims of each, and said that it would be for
These instructions just referred to were elaborated upon in
Appellant cites authority to the proposition that one has no right to use force to acquire possession when he has no real or fancied right, and when the person assaulted is in lawful possession. We understand appellant’s contention as to this to be
In the instant case, it appears that there were four men present, against the one woman. The mental attitude of defendant, and his acts, are shown. That a dwelling includes the house used, and outbuildings used as a part of the dwelling, see 10 Am. & Eng. Encye. of Law (2d Ed.) 353.
Other criticisms of the instructions need not be particularly noticed. Some specific objections are made to some of the in
“That, on October 4, 1916, the two sons of defendant brought some belongings to the farm, which they sought to place in this building, and for that purpose, sought to remove some of the property then in said building, -and belonging to plaintiff or her parents.”
There is no dispute in the evidence as to this. Furthermore, this particular matter was more in the nature of a recital of the circumstances leading up to the transaction the next day, between plaintiff and the defendant, when the sons and another party were present. Other criticisms are that the court erroneously assumed facts not established by the evidence, but these, we think, are not justified, and they are, too, based to some extent upon defendant’s assumption that he was in possession of the building, whereas, as to this last, it was a jury question, as we have before indicated.
. “2. The reasonable value of treatment by a physician, so far as the same was made reasonable and necessary by reason of any injury received from the defendant at said time; and if you find that said injuries are of a more or less permanent na
The objection to this is that the jury was allowed to speculate as to the future medical attention, and that there is no evidence to support it. Appellant’s argument at this point is very brief. It may be that the criticism is justified, in part at least. Appellee has not pointed out, and we do not find in the record, any evidence as to the value of future medical attention that might be required. Though defendant contends that plaintiff’s injuries were exaggerated, the evidence on behalf of plaintiff tends to show that she was severely injured; that she was a nervous wreck, and was still suffering at the time of the trial; and other circumstances. The evidence was sufficient to warrant a finding that plaintiff would suffer in the future, because of her injury; so that, as to this feature of the instruction, in regard to permanent injury,' there can be no question. Under these circumstances, future medical attendance would, in all probability, be required, to some extent. Appellee’s answer to this point is that another instruction was given on the same subject, to which there was no exception; and they argue strenuously, citing numerous cases, that appellant has not, in argument, complied with the rules, so as to have this matter reviewed. There is force iii the last suggestion; but we shall not review the cases, or discuss the matter in detail, for the reason that, under the record, there could be no prejudice to the defendant. The instruction flatly tells the jury that there can be no recovery on this item for more than $150 for both past and future attendance. Dr. Seward, after describing the treatment he had given plaintiff, says that his services Avere reasonably worth $150. This is not disputed. There was evidence from which the jury could have allowed, under the testimony, $150, and the court told them that there could not be any recovery for more than that amount on this item. *
3. Error No. 16 is:
No reference is given to the page of the abstract where the motion for new trial may be found, or where the part complained of therein may be found. There is no brief point on this subject. The argument is very brief, and, in substance, is: There is no evidence that warrants any such verdict as $1,200, for injuries in this case. The verdict is still manifestly excessive, and highly unjust to one who had the legal right to use his own premises. Right away after the injury, the plaintiff started her suit for permanent injuries, and the whole case shows that it was a deliberate attempt by the plaintiff to induce defendant to make some show of resistance, and then claim damages. The testimony of the plaintiff and her witnesses is so manifestly extreme as to make this apparent.
A part of this is based on the assumption that, under the circumstances of this case, defendant had the legal right to use his own premises. We have already discussed that feature of the matter. There was evidence to justify the recovery of substantial damages. The amount ordinarily is within the discretion of the jury. The verdict was large, but this does not, of itself, warrant a new trial. The trial court made what seems to us a liberal cut. Larger amounts have been allowed to stand; but plaintiff has accepted the reduction. As bearing on some of these matters, see Brause v. Brause, 190 Iowa 329, and eases therein cited.
4. Appellant complains of the refusal of the trial court to give an instruction requested by him. The assignment is that the court erred in refusing Instruction 2, on the issue as to the extent of plaintiff’s injury. The effect of the offered instruction was to say that defendant would not be liable in any event for any suffering or injuries except those that were occasioned by his acts. The jury was so told in Instruction 19 and in other instructions.
Other points are argued; but the opinion is already too long, and, since they are not controlling, w*e shall not further notice them. There is no reversible error, and the judgment of the district court is — Affirmed.