Opinion
April 7, 1925. Rehearing Denied May 11, 1926.
WITNESSES: Credibility — Jury Question on Discredited Testimony. 1 The testimony of a prosecuting witness (forcible defilement in instant case) may be very seriously discredited, yet present a jury question as to its credibility.
WITNESSES: Examination — Leading Questions Condemned. Record 2 reviewed, and held that, in the examination of certain witnesses, leading questions were not permissible.
EVIDENCE: Relevancy, Materiality, and Competency — Conduct of
Third Party As Bearing on Motive. other
EVIDENCE: Relevancy, Materiality, and Competency — Matters of
Speculation.
EVIDENCE: Relevancy, Materiality, and Competency — Conversations
in the Presence of Prosecutrix.
EVIDENCE: Opinion Evidence — Absence of Showing of Cause and
Effect. Headnote 1: Headnote 2: Headnote 3: Headnote 4: Headnote 5: Headnote 6:
Appeal from Tama District Court. — B.F. CUMMINGS, Judge.
CIVIL action to recover damages for the forcible defilement of plaintiff. Verdict and judgment in her favor, and the defendant appeals. — Reversed.
George Cosson, E.N. Farber, and H.J. Ferguson, for appellant.
No appearance for appellee.
I. This is an action to recover damages for the forcible defilement of Katie Wildeboer, appellee, who, at the time of the alleged assault, on the evening of September 27, 1912, was unmarried, and about 28 years of age. Appellant 1. WITNESSES: was about 41. The assault is alleged to have credibility: been committed in a shed near the residence in jury which she lived with her parents, on a farm question on owned by appellant. Three trials in the court discredited below have resulted in substantial verdicts in testimony. her favor. The two prior verdicts were set aside by this court, and new trials awarded. See Wildeboer v. Peterson, 182 Iowa 1185, and Wildeboer v. Peterson, 187 Iowa 1169.
Much stress is laid by counsel for appellant upon the proposition that the verdict is not supported by the credible testimony introduced upon the trial. It is not argued that the direct testimony upon the last trial did not make out a prima-facie case for appellee, but it is contended that appellee is so thoroughly discredited and impeached as that her testimony should have been disregarded by the jury. There are many particulars in which it appears that appellee changed and added materially to her testimony upon the two previous trials. She was a witness before the grand jury of Butler County in 1913, when an effort was made to secure an indictment against appellant for the crime of rape. No indictment was returned by the grand jury, the members of which were witnesses in behalf of appellant. It appears from the testimony of these witnesses that appellee did not then testify that appellant threatened to choke or to kill her if she did not keep still; that she made an outcry; or that she resisted the assault by fighting appellant. It also appears that she did not so testify upon the former trials of this case. Her testimony is in conflict as to the exact hour and date when the assault was committed, and as to the condition of her clothing. Appellant denied the charges in toto; and her testimony is corroborated only by that of her mother, to whom she claims to have made immediate complaint, and to whom she exposed her person, which, the mother testified, showed evidence of recent sexual intercourse and of violence. The only evidence of violence, aside from the testimony of appellee, was that of her mother, that there were marks or red places on her limbs just above the knee.
Evidence was introduced of subsequent and continued friendly relations between appellee, appellant, and the members of her family. No action was taken against appellant until on or about the 17th day of June, 1913, when Philip Wildeboer, her stepfather, filed an information before the justice of the peace, charging appellant with the crime of seduction. This information was dismissed; and on June 26th, another information, subscribed and sworn to by Philip, charging him with rape, was filed.
Appellee gave birth to a child, which died a few minutes after it was born, on June 30, 1913. Although she was never married, she had a son of school age at the time it was alleged the assault occurred. Testimony was also introduced to the effect that Philip Wildeboer, on different occasions after the assault was committed, spoke kindly of appellant in the presence of appellee. It is also shown that there was a quarrel between them in May, 1913, over some oats; and this is blamed for the charges against appellant. The contradictions in appellee's testimony were all brought out before the jury, which evidently, nevertheless, believed the substance of her story. There was testimony from which the jury could find, if appellee was believed, not only that sexual intercourse was had between them, but that it was accomplished without appellee's consent. Her testimony is, of course, seriously discredited by her failure to testify fully on the previous trials to what occurred, if she told the truth upon the last trial; but the credibility of her testimony was for the jury, and it is not so wholly unworthy of belief as to justify this court in holding, as a matter of law, that she should not be believed. Appellee is illiterate and ignorant. She was born in Germany, and speaks English with some difficulty; while her mother is unable to speak or understand the English language, and testified through an interpreter.
The court did not err in refusing to direct the jury to return a verdict in appellant's favor, as requested at the conclusion of all of the testimony.
II. The court permitted leading questions propounded to appellee and her mother to be answered, over the repeated objections of appellant. Leading questions should not have been permitted in the examination of these witnesses. 2. WITNESSES: The court, however, carefully guarded the examination: examination, and it is clear to us that no leading substantial prejudice resulted from the rulings questions complained of. Appellee was somewhat reluctant condemned. to answer, and, unless interrogated closely, went little into detail. Leading questions should, however, be avoided, in the event of a retrial of the case.
III. Appellant testified that a controversy over some oats occurred on May 29, 1913, between himself and Philip Wildeboer, in the living room of the house in which the family resided. The court refused to permit appellant to testify 3. EVIDENCE: that Philip, upon that occasion, threatened to relevancy, get even with him. Philip was not a witness upon materiality, the trial, and the credibility of his testimony and was not involved. Just when Philip learned of competency: the alleged assault upon appellee is not conduct of disclosed; but his wife testified that she did third party not tell him about it for several months. It is as bearing claimed that the controversy above referred to on motive. was in the presence of appellee, and that she told her stepfather to be still. While this conversation did not pertain to the subject-matter of this action, it cannot be wholly separated from the admitted fact that no information was filed against appellant until very shortly before appellee was confined. The inference to be drawn from this incident, it is true, is more or less remote; but we think that, as a circumstance occurring in the presence of appellee, it bore to some extent upon the motive of Philip in causing the information to be filed. That is to say, there is a more or less direct relationship between this incident and the institution of the criminal prosecution.
IV. It was developed in the evidence that appellee, at the time of the alleged assault, had a half sister, Minnie, unmarried, who also resided at home. Minnie gave birth to a child, July 7, 1913, about one week after appellee was confined. She 4. EVIDENCE: later married a man by the name of Fritz relevancy, Hinders. It was claimed by appellant that materiality, appellee and her sister Minnie went buggy-riding and on the evening of September 29, 1912, with competency: Fritz, and that they did not return until a late matters of hour. Fritz resided with his brother Orin, near speculation. the Wildeboer home. They were both unmarried, and "bached." As we understand the contention of appellant, it is that the two sisters may have gone to the home of the Hinders brothers, or otherwise encountered Orin, and have become pregnant. There was testimony that Philip Wildeboer, upon one occasion, said to a neighbor that Orin Hinders was the cause of appellee's condition. The testimony was wholly speculative, and without the slightest probative value as to any issue involved in this case.
V. A witness who testified that he had a conversation, at the home of appellee, with her stepfather, in the presence of herself and her mother, was asked to detail what was said. The witness was not permitted to do so. It was claimed that 5. EVIDENCE: this witness would testify that Philip, on that relevancy, occasion, said that Orin Hinders was the cause materiality, of Katie's condition; also, that, during the and conversation which occurred in the spring of competency: 1913, Philip, referring to appellant, spoke of conversa- him as a good man. The ground, as we understand tions in the the record, upon which the court excluded this presence of testimony was that it was not clear that the prosecutrix. conversation occurred in appellee's presence. The record is not quite clear on this point, but we think it sufficient to justify the admission of this testimony in evidence.
VI. Two physicians who claimed to have treated appellee for neurasthenia in the spring and summer of 1915 and the fall of 1917, respectively, were permitted, over the objections of appellant, to fully describe her condition, and 6. EVIDENCE: to detail the history of the case, as revealed opinion to them by appellee. evidence: absence of It appears from the testimony of these showing of witnesses that she was troubled with physical cause and weakness, nervousness, loss of sleep, mental effect. apathy, and other symptoms indicating the disease stated. One of the grounds of objection to the testimony of these medical witnesses was that there was nothing to show that her condition, at the time she was, examined and treated by them, was attributable to the assault which she claims was made upon her. The witnesses agreed that bad news, worry, misfortune, or anything of that kind, are efficient causes of neurasthenia. One of the physicians testified that she told him that her difficulty began in 1915, following a severe shock which she received upon a previous trial of this case. He also testified that he could form no idea as to when her condition arose, but that he based his conclusion upon the statements made by her. The other witness testified that it might have been of several years' standing. The only testimony of other witnesses who knew her after the assault, as to her physical and mental condition, was that of her mother, who testified that she was, to some extent, unable to sleep, and that, prior to her confinement, her feet and limbs became swollen. There was also testimony that she had, for a long time following the alleged assault, complained of pain or soreness in her back. Appellant, if liable at all, is liable only for such damages, mental and physical, as were the reasonable and probable result of the assault with the commission of which he is charged. The court instructed the jury quite fully as to the measure of damages and the elements entering therein. The substance of the instruction was that the amount to be allowed was such sum as would fairly and reasonably compensate appellee for the damages sustained; and that, in estimating such damages, the jury should take into consideration the expense made necessary on account thereof, the physical pain and suffering endured, the injury to her person, health, and reputation, and also mental anguish and humiliation suffered by her. As bearing upon this question and the law of indecent assaults, attention is called to Wright v. Starr, 42 Nev. 441 (6 A.L.R. 981, and note); Bye v. Isaacson, 42 N.D. 417 (6 A.L.R. 1067, and note). Surely, it cannot be that appellee's physical and mental condition, caused by a shock, however severe, more than two years after the wrong was committed, received by her while in attendance upon the trial of her case, is a proper element of damages, unless the shock is in some way attributable to the original injury. There is nothing in the record to indicate what produced the shock during the trial, nor to connect it with the alleged assault. This testimony, going directly to the question of damages, was necessarily prejudicial to appellant, and may have materially enhanced the damages.
It is indeed regrettable that this case must again be reversed; and this is said without any criticism of the trial court. The record shows that the case was carefully tried. We are persuaded, however, that this testimony was inadmissible and highly prejudicial. For the error here pointed out, the judgment of the court below is — Reversed.
FAVILLE, C.J., and VERMILION, J., concur.
I concur in the foregoing opinion, but would reverse on the merits of the cause, also.
ARTHUR, J., joins in the special concurrence.