Opinion
No. 40839.
October 20, 1931.
NEW TRIAL: Grounds — Passion and Prejudice — Moving 1 Considerations. The inconsistencies, contradictions, variations, and improbabilities of plaintiff's testimony, coupled with the amount of the verdict, may quite certainly point to the fact that the verdict was the result of passion and prejudice.
FALSE IMPRISONMENT: Civil Liability — Definite Instruction as to
Elements.
Headnote 1: 20 R.C.L. 275. Headnote 2: 11 R.C.L. 793; 14 R.C.L. 770.
Appeal from Lucas District Court. — GEORGE W. DASHIELL, Judge.
Plaintiff's petition is predicated on tortuous acts of the defendant and is in two counts:
I. False imprisonment.
II. The secret administering for a wrongful purpose of a poisonous drug known as cantharides to the plaintiff in her food, drink and pretended medicine. The plaintiff asked damages in the sum of $12,000 on each count and exemplary damages in the amount of $5000. The defendant in his answer pleads a general denial and further pleads that for a long time prior to the beginning of the alleged false imprisonment plaintiff was afflicted with a mental disorder and had hallucinations and that the allegations pleaded by her are purely imaginary and the result of her mental condition. The cause was tried to a jury resulting in a verdict against the defendant for $10,000 with no special findings or verdict as to exemplary damages. Motion for new trial was filed which was overruled. Judgment was entered in accordance with the verdict from which judgment the defendant appeals. — Reversed.
W.W. Bulman and G.C. Stuart, for appellee.
J.A. Penick and J.W. Kridelbaugh, for appellant.
[1] This is primarily a fact case. The appellee's right to recover rests almost wholly upon her uncorroborated testimony. The appellant challenges the sufficiency of the evidence to support a verdict in behalf of the appellee. We have read the record with care, and it would be of no benefit to recite the same in this opinion. We are persuaded that the appellee's testimony contains many inconsistencies, contradictions, variations, and some improbabilities. In view of the character of the case and the amount of the verdict returned by the jury, and in the light of the record, we are persuaded that the verdict is the result of passion and prejudice on the part of the jury and that the trial court erred in not awarding the appellant a new trial. The motion for a new trial, in the interest of substantial justice, should have been sustained. See, Brooks v. Brotherhood of American Yeomen, 115 Iowa 588; Graham v. C. N.W. Ry. Co., 143 Iowa 604; Madison v. Hood, 207 Iowa 495.
[2] The trial court denied one of the appellant's requested instructions, to wit, No. 4, which read:
"You are instructed that before you can find that the plaintiff was falsely imprisoned, you must find that she was detained in the home of Ross Gardner or kept under his control against her will."
The requested instruction should have been given.
Other propositions are presented relative to the affidavits of jurors as to misconduct in the jury room, rulings on the admission of evidence, and newly discovered evidence. These do not require a determination on this appeal as they probably will not find recurrence on a new trial.
The judgment entered is reversed.
FAVILLE, C.J., and STEVENS, ALBERT, and WAGNER, JJ., concur.