
    Minnie Stone, Appellant, v. Martin Moore, Appellee.
    1. Practice in Supreme Court: verdict: conflict of evidence.. “Where there is an irreconcilable conflict in the evidence in a cause-the supreme court will not reverse a judgment and order a new trial upon the ground that the verdict and judgment are not supported “by the evidence.
    2. Assault: damages : evidence. In an action for damages sustained from an assault made upon the plaintiS “by the defendant the plaintiS claimed that at the time of the assault she was pregnant, and that the abuse of the defendant produced an abortion, and injured her health to such a degree as to render her unable to perform the labor which before that time she was accustomed to do. Held, that a non-expert witness for the plaintiS, who was acquainted with her, and saw her frequently, was properly permitted to testify that the plaintiS's physical, condition was one of feebleness and inability to do hard work.
    3. -: -: testimony of experts. A .female physician who-' had attended a regular medical school, and has practiced her profession, but who had since abandoned the regular practice of medicine and adopted Christian Science as the proper method of healing the sick, held, to be competent to testify as an expert as to the result of her examination of the plaintiS, and to state the symptoms complained, of by her.
    4. New Trial: newly discovered evidence. A new trial will not be■ granted upon the ground of newly discovered evidence when such evidence is merely cumulative, or is of such á nature as should have been discovered before or during the trial.
    
      Appeal from Ceda/r Rapids Superior Cowrt. — Hon. John: T. Stoneman, Judge.
    Monday, June 1, 1891.
    This is an action for damages for an alleged assault: and battery inflicted upon the plaintiff by tbe defendant. There was a trial by jury, and a verdict and. judgment for the plaintiff for five hundred dollars,. The defendant appeals.
    
    Affirmed.
    
      
      M. P. Smith, for appellant.
    
      Wmren Harmcm, for appellee.
   Rothrock, J.

I. Numerous objections are made by tbe appellant to rulings of tbe court during tbe trial. A number of tbe alleged errors are found to bave no place inx tbe record. Tbe appellee filed an additional abstract, wbicb x x . . _ shows that fact, and tbe parties stipulated .that where tbe abstracts are in conflict tbat of tbe appellee is to be taken as correct. We will proceed to consider such alleged errors- as are to be found in tbe case as presented by tbe parties, and wbicb appear to demand tbe attention of this court.

If credence is to be given to tbe testimony of tbe plaintiff tbe defendant committed an outrageous assault upon her in her own bouse, and struck her twice with a horsewhip, and used violent and indecent language to her. She and her husband lived in a bouse wbicb they rented from tbe defendant, and she claims tbat tbe defendant’s ostensible purpose in visiting tbe bouse was to collect rent. She claimed tbat at tbe time of tbe assault she was pregnant, and tbat tbe abuse of tbe defendant produced an abortion, and injured her health to so great a degree as to render her unable to perform tbe labor wbicb before tbat time she was-accustomed to do. Tbe defendant, in bis testimony, denied tbat be made any assault upon tbe plaintiff, and denied tbat be was at or near tbe bouse of tbe plaintiff at the time when tbe alleged assault was committed. In other words be relied upon an alibi. He was corroborated by other witnesses to some extent as to bis whereabouts on tbe day of tbe alleged assault. We are asked to reverse tbe judgment because it is not supported by tbe evidence. We bave stated enough of tbe facts sworn to by the witnesses on the trial to demonstrate that we cannot interfere with, the verdict. The evidence presented an unmistakable and irreconcilable conflict, and having been passed upon by the jury, and undergone the scrutiny of the learned judge who tried the case, we cannot say that the court erred in overruling the motion for a new trial on this ground.

II. A witness for the plaintiff, who appears to have been acquainted with her, and had become interested in her condition, and saw her frequently, was asked if she knew the physical condition of the plaintiff at the time of the trial. The question was objected to because it was not shown that the witness was a physician, or familiar with the science of medicine. The objection was overruled, and the witness answered: “I know it [plaintiff’s condition] to be one of feebleness and inability to do hard work.” It appears to us that there is no valid objection to the ruling of the court in permitting this evidence to be introduced. The question did not call for the opinion of a medical expert. It was evidence of a fact open to the observation of anyone who was familiar with the plaintiff and accustomed to observe her appearance and movements. That the evidence was competent, see Tierney v. Minn. & St. L. Ry. Co., 33 Minn. 31; 23 N. W. Rep. 229; State v. Shelton, 64 Iowa, 333; Lamen on Expert Evidence, 466.

III. A female physician, named Bushnell, was examined as a witness for the plaintiff. It appears from the testimony of this witness that she attended a regular medical school, and 0 ; that she practiced her profession for some three years. The plaintiff, after her alleged injury, was examined by the witness, who was permitted, over the objection of the defendant, to state the result of her examination, including the symptoms complained of by the plaintiff. It is claimed that this was error. There was surely no more valid objection to this evidence than there would have been if it had been given by any other physician, and it is well settled that it is competent for a physician to state the complaint made by a patient as part of the diagnosis of the case. It further appears from the testimony of this witness that a short time before she was consulted as a physician by the-plaintiff she (the witness) had abandoned the regular practice of medicine, and that she had adopted Christian Science as the proper method of healing the sick. She treated the plaintiff by that method, and she was. permitted to state to the jury that her services to the-plaintiff were worth from twenty-five dollars to thirty-five dollars. It is claimed that the idea which is entertained by some that the sick may be healed by what is-called “Christian Science” is a humbug and a fraud. This may be true, but this question cannot be judicially determined without evidence, especially when it arises-in a case in a collateral way. If this plaintiff honestly believed that she could be benefited by the treatment of this female physician it is not for a court to judicially determine that she ought to have secured the services-of a physician of any particular class or kind. If she had in good faith called in a “root and herb doctor,” or a “steam doctor,” or one who claimed to cure the-“ills to which flesh is heir” by any other method, the-courts will not determine that she ought to have-employed another.

IY. The defendant complains of the court’s-instructions to the jury. We have carefully examined these alleged errors, and our conclusion is that they ought not to be the subject of objection. When considered in connection with the appellee’s abstract of the-pleadings it appears that there was no prejudice to the-defendant in any part of the charge to the jury.

Y. One ground of the motion for a new trial was-based upon alleged newly discovered evidence. This-evidence consists of a number of affidavits, in wbicb tbe affiants state certain facts wbicb, upon a trial, would be proper •evidence. Nearly all of tbis evidence is, however, merely cumulative. It is of tbe same kind and to tbe ■same point as mucb of tbe evidence introduced by tbe defendant on tbe trial. That wbicb is not cumulative, it appears to us, ought to have been discovered by tbe ■defendant before or during tbe trial. We need not set ■out these affidavits, nor further elaborate tbe case.

Tbe judgment of tbe district court is aeeirmed.  