Mallett v. Beale

66 Iowa 70 | Iowa | 1885

Notebook, J.

I. The jury were fully warranted in finding from the evidence that the defendant went into the plaintiff’s house, and, in the absence of her husband, seized hold of her person, and that she resisted him, and that he, against her will, used considerable violence towards her, by holding her and pushing her, and that the object defendant had in view was to have sexual intercourse with the plaintiff. That this conduct was assault and battery by defendant there can be no question. A number of exceptions were taken to the rulings of the court on the admission and exclusion of evidence. These objections are assigned as errors, and presented in argument. The most of them relate to the order in which evidence'should be introduced, and whether certain questions are proper cross-examination, and the like. We have carefully examined these alleged errors, and our conclusion is that they are not well taken. We do not deem it necessary or proper to set them out in detail. The mere statement of them would show^ that we would not be war-* ranted in reversing the judgment on account of any of them.

II. After the alleged assault, and before the suit was brought, the parties met on two or three occasions, and they walked together to or near the plaintiff’s home, and the plaintiff wrote two letters to the defendant. These interviews, and the letters, all had reference to the claim made by plaintiff against the defendant. It is claimed by defendant’s counsel that plaintiff on these occasions invited the defendant to escort her home, and complaint is made because the court refused certain instructions to the jury, asked by defendant, to the effect that in determining the character of the alleged assault they should consider these acts; and the acts were specified in said instructions. We think there was no error in refusing to give these instructions, because the court did instruct the jury that, in determining the character of the act complained of, it was their duty to carefully consider the conduct of the parties towards each other both before and after the assault.

III., The court instructed the jury that, if they found for the plaintiff’, they might consider the character of the attack, and in their discretion allow her exemplary damages. It is claimed by counsel for appellant that this instruction was not warranted from the allegations of the petition, because it was not therein averred that the act complained of was malicious. ~We have in the statement of the case preceding this opinion set out the petition, and we need only refer to it as an answer to this objection. It is true, the word “malice” is not to be found therein; but that is not necessary. The averments of the petition unmistakably charge the defendant with a malicious assault.

Affirmed.