Gwinn v. Crawford , 42 Iowa 63 ( 1875 )

Cole, J.

-Upon the trial the court gave to the jury, among others, instruction No. 2, and by the former opinion of this court the judgment was reversed for an alleged error in that instruction, which is as follows: “The jury may first determine whether defendant made threats of personal violence towards plaintiff, and if so, whether plaintiff gave and surrendered to defendant the money in question through fear of such violence, and if so, whether plaintiff’ was then the owner of said money, and if you so find all these issues, then you will find plaintiff entitled to recover the amount of such money with interest at the. rate of six per cent from the time defendant received the same. But if you find that the same was voluntarily given up and paid by plaintiff to defendant on claims which defendant held in his own right against W. E. Gwinn, the husband of plaintiff, you will find for defendant on this count of plaintiff’s petition.”

As to the correctness of this instruction, so far as it relates to the right of the plaintiff to recover, no objection is made, nor, indeed, can there be. It is insisted, however, and it was so held in the former opinion, that,in the last clause, which says, “ but if you find that the same was voluntarily given up and paid by plaintiff to defendant, on claims which defendant held in his own right against W. E. Gwinn, the husband of plaintiff, you will find for the defendant on this count of plaintiff’s petition,” there was error because it was misleading.

The evidence tended to show that the defendant, at the time he received the money from plaintiff, held a claim against W. E. Gwinn of about eight hundred dollars in his own right, and about three thousand dollars of claims, which he held for collection, as agent of the owners thereof.

The precise point of objection is, that the last paragraph of the instruction limited the jury to the consideration of the claim which defendant held in his own right. There may be several answers to this objection.

1. iNSTKucpieteiiess?om First. The court correctly instructed the jury as to what they should find in order to entitle the plaintiff to recover, and, in the closing paragraph, undertook to state one fact, which if they should find, would require them to return a verdict for defendant. This part of the instruction was correct, but it did not state all of the facts which might also require the jury to find for the defendant. So far as the instruction went, it was correct and not misleading. "We have often held that if the instruction given does not embrace the whole of the law applicable to the case, it is the duty of the party desiring the full or broader instruction, to ask it; and if he fails to do so, he cannot object to that which was given correctly so far as it went. Thus, in Dixon v. Stewart, 33 Iowa, 125, it is said that,'“ if in the judgment of defendant, this instruction was not sufficiently explicit, and did not fully develop his defense, he should have asked a specific instruction, embodying his view of the case.” And in The State v. Tweedy, 11 Iowa, 350, the court held that, “ when a general rule is correctly given by the instruction, but without qualifications, which are claimed to be material under the actual circumstances of the case, it will not be considered error, unless such qualifications were asked by the party complaining, and refused by the court.” See, also, to the same effect, McCausland v. Cresap, 3 G. Greene, 161; Miller v. Bryan, 3 Iowa, 58; Ault v. Sloan, & Id., 508, and other cases. This case before us is one to which the doctrine of the cases cited most fitly applies. Here the court in the first instruction had stated the issues to the jury, and the instruction under consideration was the first given upon the legal rights of the parties. It gives to the jury a statement of the facts necessary for them to find in order to return a verdict for the’ plaintiff, and might very properly have stopped there; but the court proceeded to state one fact, which, if the jury should also find, would defeat the plaintiff’s right to their verdict.

Now, it is not questioned that, so far as the court gave the law in this respect, it was correct; but it is claimed that the court should also have added after the words, “on claims which defendant held in his own right,” the words, “or.as agent of others for collection.”

2_._. practice. This additional fact might very properly have been added; but it would come quite as properly, and more naturally, in connection with the instruction upon the matter connected with the defendant’s right to their verdict. In other words, and in the language of Dixon v. Stewart, supra, if the instruction did not fully develop the defense, the defendant should have asked a specific instruction embodying his view of the case.

Second. This instruction was, by its express terms, limited to the first count of the- plaintiff’s petition. That count sought to recover the money simply from the defendant, which he had, as was' alleged in it, obtained from plaintiff by duress. The second count of the petition alleged the violent and forcible taking of the money by the defendant from the plaintiff, and sought to recover the money and damages for the violence and assault committed by defendant in taking it. The verdict of the jury shows that they did not find for plaintiff upon the first count, but that their verdict was based upon the second count; for that they found d amages for plaintiff for a considerable amount over and above the money taken by defendant and the interest thereon. Since, then, the instruction complained of was expressly limited to the first count of the petition, and it is certain beyond dispute that the verdict was rendered upon the second count, it is not possible that the instruction, even if erroneous, could have prejudiced the defendant.

Third. It is claimed in argument by appellant’s counsel, as bearing upon the instruction under consideration, that One item of the defense consisted in the averment and claim that the money received by defendant was voluntarily given up by the plaintiff, and that the instruction was erroneous because it limited his right of defense to such money as was voluntarily given up to him on claims held in his own right. But it is clear that if this was erroneous, it did not work any prejudice to the defendant, for that the jury could not have found for the plaintiff under the second count, without first having found that no part of the money was voluntarily given up to him; and this, because the jury must have found, in order to return the verdict they did, that the same was taken by threats and violence from the plaintiff. •

These considerations, without taking time to present others, sufficiently show that the instruction complained of, even if it were erroneous and misleading in itself, did not work any prejudice to the defendant in this case.

As was said in the former opinion, urn do not think that any of the objections to the instructions are well fpun'ded.

After a careful reconsideration of the entire case we are convinced that the judgment should he

Affirmed.