Bailey v. O'Bannon

Citation28 Mo.App. 39
PartiesLEMUEL BAILEY, Appellant, v. JACOB O'BANNON, Respondent.
Decision Date21 November 1887
CourtCourt of Appeals of Kansas

APPEAL from Cass Circuit Court, HON. CHARLES W. SLOAN, Judge.

Affirmed.

Statement of case by the court.

This is an action for seduction. The petition alleges that the plaintiff's daughter, Ollie Bailey, under the age of eighteen years, was seduced by the defendant on or about the first day of November, 1883, in consequence of which she became pregnant, and gave birth to a child on the sixteenth day of July, 1885. The action is per quod servitium amisit. To this was appended an affidavit for attachment, based upon the twelfth subdivision of section 398, Revised Statutes. The trial was had upon the issue in the plea in abatement. Verdict and judgment for defendant from which plaintiff has appealed.

The witness who testified to the carnal act was the daughter Ollie. She placed the time of the first intercourse about the first of November, 1883, when she was not quite eighteen years old. She testified that the intercourse occurred one night coming from church, on the road side, and that she consented on promise of marriage then made her by defendant. This illicit intercourse, she testified, was kept up, with short intervals, until the time of her impregnation in October, 1884.

There was scarcely any evidence of a corroboratory character, while the evidence showed that others had equal, if not better opportunities for accomplishing such intercourse.

The defendant wholly contradicted the plaintiff in every material particular. There were some facts and circumstances in evidence contradictory of the testimony of plaintiff, as to particular dates and events connected with the affair. But the case turned almost exclusively on the credibility of these two witnesses.

SAMUEL P. SPARKS and WOOLDRIDGE & DANIEL, for the appellant.

I. The functions of a former pleading are at an end when an amended pleading has been filed, and such pleading ceases to be a part of the record, and cannot be used to contradict the amended pleading. Brackencamp v. Reese, 3 Mo.App 585; S. C., 69 Mo. 426; Corley v. McKay, 9 Mo.App. 38; Machine Co. v. Pierce, 9 Mo.App. 576; Brown v. Railroad, 18 N.Y. 495; Dennie v. Williams, 135 Mass. 28; Combs v. Hodge, 21 How. 397; Ticknor v. Voorhees, 46 Mo. 110; Bobb v. Bobb, 89 Mo. 411. Rev. Stat., sect. 3579. (a ) In the case of Dowzlet v. Rawlins (58 Mo. 75), the pleading was in another case, and had not been abandoned, and that case is no authority for the action of the court in the case at bar. Corley v. McKay, 9 Mo.App. 38. ( b ) The obiter dictum in Anderson v. McPike (36 Mo. 295) is not supported by the case in 58 Mo. 75, cited in support of it. (c ) The deposition even of a party to the cause, which cannot be read as such, cannot be used as solemn admissions. Priest v. Way, 87 Mo. 16, loc. cit., 27, 28, 29.

II. A plea in abatement must directly and fully negative the allegations constituting the grounds for the attachment in the affidavit. A general denial of the truth of the allegations was not a denial of the facts contained in the allegations. Drake on Attach., 407-9; Livingwood v. Shaw, 10 Mo. 274; Hatry v. Shuman, 13 Mo. 574; Cayce v. Ragsdale, 17 Mo. 32; Haywood v. Chestney, 14 Wend. 495. (a ) The defendant could only contest the grounds of the attachment by a plea in the nature of a plea in abatement. Drake on Attach. 407-9; Rev. Stat., sect. 438. (b ) The peculiar office of a plea in abatement is to afford the plaintiff a better writ by pointing out the error. This cannot be accomplished by a general denial. Cannon v. McManus, 17 Mo. 345; 1 Chitty's Plead., sect. 446; Wigand v. Sichel, 42 N.Y. App. [3 Keyes] 120; Kingsland v. Breasted, 2 Laws 17; Burgess v. Abbott and Eby, 1 Hill 476; S. C., 6 Hill 135. (c ) Section 3521, allowing a defendant to answer the petition by a general or specific denial, has no application to, and does not in any way authorize, a general denial as a substitute for the plea in the nature of a plea in abatement, in attachment proceedings, required by section 438, supra. A general denial cannot be verified by affidavit.

III. The law presnmed that Ollie Bailey was chaste and virtuous until it was established by evidence to the contrary, and the court erred in refusing plaintiff's first instruction. State v. Patterson, 88 Mo. 88, loc. cit. 93, at foot; People v. Clarke, 33 Mich. 112, loc. cit. 116; Waddingham v. Waddingham, 21 Mo.App. 607; 1 Greenl. on Evid., sect. 34-35; Best on Presump. Evid. 64; Boyer v. Dively, 58 Mo. 510; 4 Denio 431; The People v. Brewer, 17 Mich. 134, loc. cit.

IV. Seduction was correctly defined in plaintiff's refused instruction, being in this feature like the one given by the court of its own motion. The State v. Patterson, supra; People v. De Fore, 31 N.W. 585. The court erred in giving the third instruction for defendant, because it conflicted with the one given by the court of its own motion defining seduction. Deceit is no element of seduction.

V. When a particular status exists, the law presumes its continuance, and if a change is asserted some evidence of the change must be produced. Cargile v. Wood, 63 Mo. 501; Fitzgerald v. Barker, 85 Mo. 13; 23 Mo.App. 192. The instructions of defendant resting the burden on plaintiff of establishing that his daughter was chaste at the time of her alleged seduction, were erroneous. People v. Clarke, supra; State v. Patterson, supra. The burden of establishing the seduction was upon the plaintiff, but there the burden shifted.

VI. No issue should be submitted to the finding of the jury concerning which there is no proof, and the instructions as to sexual intercourse, given for defendant, were based on no evidence whatever. White v. Chaney, 20 Mo.App. 386; 2 Starke Mo. Dig. 326, title Instructions 89, and cases there collected.

VII. An instruction that submits it to the jury to find if certain facts exist, virtually tells them there is evidence tending to prove it. Such an instruction is calculated to mislead the jury, and is erroneous. Breon v. Hinkle, 13 P. 289.

RAILEY & BURNEY, for the respondent.

I. The record proper herein shows that an amended petition was filed on the eighteenth day of March, 1886, and on the same day an affidavit for attachment was filed in said cause based on the second petition. On the sixteenth day of November, 1886, defendant filed his plea in abatement. On said last date, plaintiff then filed an amended petition; and failed to file any affidavit based thereon. We, therefore, insist that the first and second petitions, having been abandoned, it carried with it the affidavits based on both of said petitions; and on the filing of the last amended petition, it ipso facto abandoned all former pleadings. The plaintiff was required to either re-file his original affidavit, or a new one founded upon said last petition. Having failed to do so, he had no affidavit for attachment on file, and the defendant's objections to the introduction of any evidence, for the reasons aforesaid, should have been sustained. For authorities on the subject of abandoned pleadings, see those cited by appellant under his first proposition.

II. This action is attempted to be brought under paragraph 14, of section 398, of the Revised Statutes of 1879. It reads as follows: " Where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or for the seduction of any female." We are not aware that this section has ever been construed, but submit, from the reading of it, that it is only intended to apply to personal injuries; and, therefore, would not authorize a proceeding thereunder like the one at bar. If we are correct in this conclusion, defendant's first instruction was clearly the law, and the case should have been taken from the jury. As the same result was accomplished by the verdict, the judgment should be affirmed.

III. The Supreme Court, in Anderson v. McPike (86 Mo. 301), say, " prima facie, the original answer of defendant was competent evidence against defendant." This was one of the main questions in the case, as will appear by reference to the briefs for appellant and respondent on pages 296 and 297 of 86 Mo., aforesaid. The only case really relied upon to overturn the foregoing decision, is Priest v. Way (87 Mo. 27, 28, 29). The latter simply refers to the deposition of a party taken without her consent, without an opportunity afforded her to explain the deposition, and on the theory that to permit it to be read, would be simply to construct a trap, etc.

IV. Appellant's third proposition is as follows: " The law presumed that Ollie Bailey was chaste and virtuous until it was established by evidence to the contrary, and the court erred in refusing plaintiff's first instruction." Without undertaking to reply in detail to the authorities cited by appellant, we think it sufficient to cite the following authorities in support of the ruling of the court below. Waddingham v. Waddingham, 21 Mo.App. 628-9 and authorities cited; Zabriskie v. State, 43 N.J. Law, 630, et seq. " Where there are conflicting presumptions, the presumption of innocence will prevail against the presumption of the continuance of life; the presumption of things generally; the presumption of marriage, and the presumption of chastity." Jayne v. Price, 5 Taunt. 326. " And this presumption in favor of innocence is not confined to proceedings instituted with a view of punishing the supposed offence, but holds, in all civil suits, where it comes collaterally in question." Case v. Case, 17 Cal. 598. These statements of the law are approved by this court in the Waddingham case (supra ) ; and we submit that no case cited by appellant...

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