Kaline v. Stover

88 Iowa 245 | Iowa | 1893

Robinson, C. J.

The petition alleges that on the twentieth day of July, 1889, the defendant, without pi'ovocation, willfully and feloniously assaulted the plaintiff, beating, bruising, and maltreating him by striking him on the head, body, and limbs with his fists, and weapons unknown to him, and that defendant knocked out plaintiff’s teeth and cut off one of his fingers. The defendant denies that he made an unprovoked assault upon the plaintiff, and avers that any assault made or injury inflicted by him upon plaintiff was done in self-defense, and in resisting attacks made upon him by the plaintiff and plaintiff’s wife, children, and dogs, the persons at the time of their attack being armed-with clubs, broomsticks, and other weapons.

1. assault ana for c?amages?n evidence. 1. Evidence given for the plaintiff tended to show that at the time stated in the petition the defendant struck him with a hatchet and with brass knuckles, causing severe injuries. It appears that the affair led to the criminal prosecution of the defendant in justice’s court. The defendant was permitted to show in this case, notwithstanding the objections of the plaintiff, in substance, that the latter appeared in. justice’s court with a large bandage around his head; that he claimed it was worn in consequence of injuries inflicted by the defendant, and that it could not be removed; that it was finally taken off, notwithstanding his resistance, but that few, if any, marks of an injury to the head could be found. There is nothing in the record to show that this evidence was material. Its purpose does not appear to have been to show the extent of the. plaintiff’s injuries at the time the examination was made. The wearing of the bandage by the plaintiff, and his resistance to attempts to remove it, would not tend to show the nature or extent of his injuries, and we are inclined to think that the theory of the plaintiff that the evidence was introduced for the purpose of showing that he had attempted to deceive in justice’s court in regard to the extent of his injuries is well founded. "Whether he did or not was clearly immaterial to any issue in this case.

2. —: —: proorms and II. The court charged the jury as follows: ‘ ‘4. The burden of proof is on plaintiff to satisfy you by a preponderance of the evidence that on or about July 20, 1889, the defendant assaulted and- struck plaintiff substantially as claimed in his petition, and that he was thereby injured, the extent of such injury, and the amount of his damage; and if he has done so, your verdict should be for the plaintiff, unless such alleged assault and striking was done in self-defense, as hereinafter explained.” The sixteenth paragraph of the charge instructed the jury that if the plaintiff had failed ‘ ‘to establish the allegations in his petition as is stated in paragraph number 4 above, he is required to do,” their verdict should be for the defendant. We are of the opinion that these portions of the charge were erroneous, in requiring the plaintiff, in order to recover, to prove that he was assaulted and struck “substantially as claimed in his petition.” He was thus required to prove substantially that defendant struck him on the head, on the body, and on the limbs with his fists, and also with weapons unknown to him. The plaintiff was not required to prove all the averments of his petition to entitle him to recover. It was sufficient if he showed a good cause of action on any of the "grounds stated in his petition. Maichen v. Clay, 62 Iowa, 455. It is clear, if the defendant made an unprovoked and unjustifiable assault upon him, that he is entitled to recover, whether the assault was made with fists alone, or with weapons unknown to the plaintiff only, or with fists and weapons, and whether he was struck on the head, body, and limbs, or on either. See Harley v. Merrill Brick Co., 83 Iowa, 73.

3. — ; ——: instrucu°n to jury. III. The jury were told in the thirteenth paragraph of the charge that “there are two theories in this case. The one claimed by the plaintiff, ^at defendant, without any cause or provocation, first struck him with a hatchet, and followed this up with striking him with his fist with brass knuckles on his hands, and with pounding the plaintiff when he was down; and the other theory, that of the defendant, that the plaintiff commenced the difficulty by coming at the defendant m a hostile way, as if to strike him; that he, the defendant, struck him, the plaintiff, in self-defense.” In the fourteenth paragraph the jury were told that they must determine from all the facts and circumstances which of the two theories is correct, and return their verdict accordingly. These portions of the charge were erroneous as tending to require proof of all the matter alleged to constitute the theory of the plaintiff to entitle him to recover. He might have been entitled to recover on proof of but a part of them, for reasons already stated in this opinion.

IV. The appellant contends that the court failed to instruct the jury correctly and fully in regard to the right of self-defense. Since we are without the benefit of an argument for the appellee, and the evidence on a second trial may not be like’ that before us now, we refrain from expressing any opinion in regard to the question thus presented. For the same reason we think it best not to determine other questions discussed by the appellant.

The judgment of the district court is reversed.