Douglass ex rel. Osborne v. Agne

Ladd, J. 1. Appeal: notice. Appellee insists that the service of notice of appeal did not confer jurisdiction on this court, in that it was entitled as “ In the Supreme Court of Iowa,” and was not served on L. Osborne, the next friend. As the notice, when served, is to be filed with the cleric of the district court, save yvhen served on a co-party, doubtless it .should be entitled as in the district court. Sections 411V, 4115, Code. But as no particular form is required, even where headed, “ In the Supreme Court of Iowa,” it will be regarded as sufficient if it clearly indicates the court and judgment from which the appeal is sought to be taken, as in the instant case. — 69 — 2. Appeal: service of notice. The judgment for costs was entered both against the minor and her next friend, but the latter was not served with notice of appeal. Nor should he have been. He was not an" independent party to the action. His x only interest was to aid the minor, who labored under disability, in the prosecution of her suit. Smith v. Dawley, 92 Iowa 312. Moreover, a reversal could not adversely affect his liability for costs,, and, even if deemed a co-party, notice was not necessary. Clayton v. Sievertson, 115 Iowa 687. 3. Seduction: evidence. II. The plaintiff is a stepdaughter of L. Osborne, who had married her mother June 6, 1900. On the 2nd day of October of the same year, Osborne moved on- the farm of defendant’s father, for whom he worked nearly eleven months. The defendant and his brother boarded with them while picking corn in the fall, and the defendant again in April and May of the next year. According to plaintiff’s story, in the latter part of 1900, and from then on, he went out walking with her, hugged and kissed her frequently, and told her of his love, and about the last of April, 1901, upon his return from the field, found her in the barn, engaged in milking, and, by assuring her of his love, caressing her, and promising to keep her “ if anything got the matter,” induced her to submit to his embraces. All repetitions of the act are said to have occurred in her bed in the house. Osborne testified to certain attentions paid by defendant, and also that in April he- had seen him around there in the barn with the girl, and that they were “ getting up off the hay,- in by the cow. * * * I did not say I caught them at it. I caught, them getting up, and it looked suspicious that they were at something.” She was then fifteen years of age, and defendant twenty-one. He denied the charge in every particular, and evidence was introduced tending to impeach Osborne. Enough has been said to indicate that this court ought not. to say that the verdict is not sustained by the evidence. — 70 — 4. General reputation evidence. III. Several witnesses were permitted to testify, over objection, to Osborne’s general reputation for moral character in Rochester and vicinity and at Lime City. At the time of the trial, which occurred in November, 1902, he had lived in Davenport since August 20, 1901. Prior to that he had Worked for Agne, near Rochester, for about eleven months; had been on Wingart’s farm five months, in Tipton four months, in Illinois two months, on Reed’s farm one and one-half months, in Lime City for some time, and prior to that had resided in Rochester, near which place he was raised, and vicinity, for ten or twelve years. Whether he had lived continuously in the same locality in Davenport is not disclosed. While he may have established a reputation at each of the .places where he tarried after leaving Rochester and Lime City, the probability is against his having done so in such brief intervals before reaching Davenport. Though at the latter place fifteen months, he was occupying rooms at the time of the trial, instead of a residence, and, for all that appears in this record, may have lived in several localities in that city during his stay there. There is no unvarying test by which to determine when a person has been in a place long enough to establish a reputation for what he is, or at least seems to be. It ought not to be so short that one who moves from place to place may, by simulation, avoid having his testimony weighed in the light of his true character. It ought not to be so long that his reformation or degeneration shall be ignored in the investigation of truth. The aim is to ascertain the character of the witness at the very time he has testified, and, to accomplish this, much depends upon the circumstances of each particular case. In view of the many changes of residence prior to moving to Davenport, and the uncertainty as to whether he lived in the same locality all the time while there, we are inclined to uphold the ruling by which the impeaching evidence was received. McGuire v. Kenifick, 111 Iowa, 147. — 71 — 5. Instructions. IV. Complaint is made of the meagerness of the instructions on measure of damages. As the verdict was for defendant, the plaintiff could not have been prejudiced by these alleged defects. 6. New trial misconduct of juror. V. One of the grounds upon which plaintiff based her motion for new trial was misconduct of the foreman of the jury. In support of the charge, the affidavit of a juror named Knott was filed, in which he stated, among other things: That when the jurors prS£ retired they were about evenly divided. That Foreman Kettel then declared in presence of the entire jury “ that the plaintiff, Myrtle Douglass, and her baby, came to his house before this suit was brought, and stayed there two days and one night; that he- contemplated adopting the child; * * * that plaintiff herein told his wife that the first time defendant had intercourse with her it occurred in bed, and she never mentioned any intercourse in the barn; * * * that she told his wife that defendant had had in-intercourse with her many times, and that it always occurred in .her own bed; * * * and that plaintiff had not testified to these things.” That affiant was at first strongly for plaintiff, but was influenced by what the foreman said to vote for the defendant, as he believed others did. Other matters stated were contradicted by affidavits of the foreman and another juror, but both were careful not to controvert what we have set out, save by asserting that several jurors repeatedly declared “ that no matters should be taken into account in arriving at the verdict except what was testified to, and the evidence introduced, only, should be considered.” The importance of these statements by the foreman is manifest when it is recalled that plaintiff had testified that the seduction had occurred in the barn, and that the only evidence corroborative of the act of intercourse related to that transaction. Moreover, the circumstances under which the foreman claimed the statements had been made were such as were likely to impress the jury with the notion of their — 72 — truthfulness. A more effective mode of refuting her story can scarcely be imagined. True, some of the jurors talked that they were not to go outside of the record, but they did the very thing which was thought to be improper. These are matters which did not inhere in the verdict. This court has uniformly held that proof that evidence not introduced was considered, and exercised some influence on the result, may be shown by the affidavits of jurymen. Hall v. Robison, 25 Iowa, 91; Stewart v. Ry., 11 Iowa, 62; Hathaway v. Ry., 97 Iowa, 747. And it is firmly established that to consider any evidence other than that introduced on trial, which it is reasonably probable influenced the result, is such misconduct as to require a new trial. In addition to the above decisions, see Coffin v. Gephart, 18 Iowa, 256; McLeod v. Ry. Co., 71 Iowa, 138; Griffin v. Harriman, 74 Iowa, 430; Montgomery v. Hansen, 122 Iowa, 222: The ease is to be distinguished from those rejecting a juror’s affidavit that he has been influenced by his fellow jurors, or as to his reasons for agreeing to the verdict, or that improper arguments were resorted to, or that the character of either litigant was discussed, as these matters inhere in the result, and the affidavits thereof are not . admissible. Dunlavy v. Watson, 38 Iowa, 398; Bryson v. Ry., 89 Iowa, 684; Fox v. Wunderlich, 64 Iowa, 187; Purcells v. Tibells, 101 Iowa, 24; Baxter v. Cedar Rapids, 103 Iowa, 599; Fulliam v. Muscatine, 70 Iowa, 436; State v. Beste, 91 Iowa, 568. In one class the affidavits are of facts, and in the other of mere opinions. Proof of facts constituting misconduct on the part of jurors is always permissible. Appellee contends rightly that a new trial ought not to be granted where the verdict returned effectuates justice. See Hathamtíy v. ]dy., supra; Purcell v. Tibells, supra.. But the evidence Was in sharp conflict, and it is not for this court, nor the trial court, to pass upon the issues of fact. These were for the jury’s determination, and the'plaintiff was entitled to have its decision based on the evidence in73 traduced on the- trial, and not the ex parte statements of a juror.— Reversed.