190 Iowa 939 | Iowa | 1921
— The petition alleges that the defendant, Dr. W. E. Lessenger, entered the premises occupied by the plaintiff and her husband as a home, on Sunday evening, March 18, 1918, with a malicious and wrongful intent to abuse and assault plaintiff’s husband; that he did at said time and place curse, assault, and bruise plaintiff’s husband in the presence of plaintiff; that he also broke a window in plaintiff’s home, with the malicious intent of terrorizing the plaintiff; that, by reason of said conduct, plaintiff suffered great mental pain and physical injury and damages in the sum of $5,000. Defendant answered by a plea of general denial.
From about 4 o’clock in the afternoon until 6, he was unable to secure telephone connections, and, by reason of the repeated calls, both defendant and the girl in charge of the central office reached a point where “forbearance ceased to be a-virtue,” and, after defendant had used some objectionable language, ‘ ‘ central cut out his phone and refused to answer his calls. ’ ’
One of the printed rules of the telephone book read.:
“Beport all trouble to the chief operator or manager. Let us have your first complaint.”
Ih compliance with this rule, as claimed by defendant, he was driven, about 9 o’clock, to the home of the plaintiff, for the purpose of getting his phone connected, or making some arrangement whereby he could communicate with his Burlington patients. Upon arrival, he told Mr. Quillen his mission, and,' after some conversation, a fight ensued outside the house. The plaintiff, while not outdoors during the time of the altercation and alleged assault, became frightened, and claims to have received a permanent injury to her nervous system.
- The errors assigned for a reversal are: (1) Prejudicial statements of plaintiff’s counsel in his opening statement to the jury; (2) the admission in evidence of statements claimed to have been made by defendant by telephone to the operator on
“We will show you that she [meaning Mrs. Quillen] heard that this defendant went down to the drug store with a knife in one hand and with a revolver in the other. ’ ’
At this point, counsel for defendant interposed a proper objection.
Plaintiff’s counsel continued:
“We will show you that Mrs. Quillen heard that another night he called up the telephone girls and threatened to come over and cut their throats, and had started down the steps and was stopped by an officer at the foot of the steps. ’ ’
At this point, further objections were made by defendant, whereupon the court remarked: “Counsel should hold himself within what he may be able to prove on the trial.”
We would not reverse on this ground alone, but it would have been proper for the trial court to have admonished plaintiff’s counsel, and to have instructed the jury at that ti'me to give no consideration to the statements made.
Upon the cross-examination of the defendant, the following record was made:
‘ ‘ Court: What pertains to Mr. Quillen or the defendant, or any communication between them or any knowledge of the conduct, as showing their relation, may be competent. I rather think that the question can be answered.”
The question was then repeated: and, as preliminary to the
“Did you have a conversation with Mr. Quillen over the phone during that afternoon, or did you know that you were talking to him or in his presence that afternoon?”
Objection to this question was interposed by plaintiff’s counsel, which the court sustained. The original question was then reread, to which the witness answered:
“I don’t think so. I don’t consider I used any profane language to the girls. I said, ‘It beats hell that I can’t get any service.’ I may have.said, ‘Damn it.’ Q. Didn’t you say to the telephone operator, ‘I know you, you damned whoring bitch?’ ”
To this question proper objections were made and overruled. The witness answered:
“No, sir. Never used that kind of language to her.”
The question was then repeated, directing the attention of the witness to such statements on two different occasions on the afternoon in question, to which the witness answered in the negative.
On rebuttal, plaintiff introduced the telephone operator, who was permitted to testify, over objection, that the defendant in the telephone conversation had called her ‘ ‘ an old whore ’ ’ and “an old hussy.” Defendant moved to strike out the answers given, for the same reason stated in the objection; and the motion was overruled.
Sufficient record has been quoted to indicate the prejudicial character of this cross-examination. It is not permissible under the guise of cross-examination to permit a party to elicit immaterial and collateral matters from the witness, and then traverse same on a theory of rebuttal. Furthermore, the impeachment of a witness cannot be predicated on immaterial matters, and it is quite apparent that the testimony in question did not in any way define, characterize, or limit the primary fact in issue. The language may have been a basis for an action in slander, but Mrs. Quillen would not have been the complainant.
We are clearly of the opinion that this testimony was not competent, and that the objections to the questions should have been sustained in the first instance.
The court, in Instruction No. IX, told the jury that:
In the succeeding paragraph, the jury was further told that, if they found that the plaintiff had sustained actual damages, and further found “that the defendant maliciously committed the assault, you are authorized, if you so find, to award such exemplary or punitive damages by way of punishment as you may find, from all the evidence under the facts in this case, should'justly and rightly be awarded.”
Under the above instruction, the jury was justified in believing that the defendant could be punished for any wrongful conduct of which the evidence showed he had been guilty, if they felt that this would be best for the “interests of the community,” or to “protect society.” The instruction as an abstract proposition is free from error, but when read and applied in the light of the incompetent evidence introduced, was very prejudicial to the defendant.
We need not comment upon the argument of plaintiff’s counsel to the jury, as there will be no occasion for a repetition