289 P. 74 (Idaho 1930), 5421, Kralick v. Shuttleworth

CourtUnited States State Supreme Court of Idaho
JudgeVARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.
Writing for the CourtVARIAN, J.
Citation289 P. 74,49 Idaho 424
Date04 June 1930
Docket Number5421
PartiesSOPHIA KRALICK, Respondent, v. FRED P. SHUTTLEWORTH, Appellant

Page 74

289 P. 74 (Idaho 1930)

49 Idaho 424




No. 5421

Supreme Court of Idaho

June 4, 1930


1. Motion to dismiss, and amended motion to dismiss action, and exhibits attached to latter motion, are not part of judgment-roll (C. S., sec. 6901).

2. Respondent could not object for first time on appeal to inclusion in transcript of motions to dismiss, and exhibits attached thereto, on ground they did not constitute part of judgment-roll (C. S., sec. 6901).

3. Trial judge's certificate of papers used on hearing motion for new trial and enumeration thereof were sufficient to bring such matters before reviewing court, having been actually incorporated in transcript without objection.

4. Res judicata, though in nature of plea in abatement, is more properly plea in bar.

5. Res judicata defenses should be raised by answer as pleading "new matter constituting a defense," and cannot be raised by motion to dismiss, C. S., secs. 6683, 6694, as amended by Laws 1925, chap. 10).

6. Plaintiff's want of chastity at time of alleged seduction is no defense, but may be shown for impeachment or in mitigation of damages.

7. Answer held insufficient to allege lack of chastity at time of alleged seduction, as against demurrer.

8. Plaintiff's reputation as to habits and manner of talk, as being vulgar or unladylike, was inadmissible in seduction case.

9. Woman who has been unchaste may reform and be seduced by one who has not theretofore had intercourse with her.

10. Woman, after having reformed, may be seduced second time by same man and recover for later seduction.

11. Motive of plaintiff suing for second seduction by same defendant, probabilities of her believing later promise to marry, intervening reformation, and fact of second seduction are matters determinable by jury.

12. Action for breach of marriage promise is founded on contract, though closely approximating action based on tort.

[49 Idaho 425]

13. Action for damages for seduction is ex delicto.

14. Judgment in breach of marriage promise action bars seduction action based on same transaction only when seduction is pleaded and proved in former action in aggravation of damages.

15. As respects res judicata defense, proper way to prove existence of judgment is by record or certified copy.

16. Defendant in seduction action had burden of proving existence and legal effect of judgment in previous breach of marriage promise action, as respects res judicata defense.

17. Complaint in former action marked as defendant's exhibit for identification, but never received in evidence, and copy of judgment therein not part of record before jury, held not to establish judgment, as respects res judicata defense.

18. That prior breach of marriage promise action was founded on same facts as seduction suit held defense matter and not proper cross-examination.

19. Plaintiff in seduction, on cross-examination, having denied arranging for presence of policeman, objection to question as to why she had policeman come held properly sustained.

20. Complaint and judgment showing charges and convictions against defendant of previous lewd cohabitation and fornication with plaintiff held admissible in seduction case.

21. Evidence of plaintiff's prior unchastity by regular acts of intercourse with others may be shown in mitigation of damages for seduction.

22. Plaintiff's general bad character for chastity prior to her seduction may be shown in mitigation of damages.

23. Evidence of plaintiff's unchastity is admissible in seduction action to show she yielded because of her own want of chastity.

24. In civil seduction action, woman's chastity is presumed until contrary is shown.

25. Nearly two years having elapsed since first act of unchastity on which seduction action was based, presumption was that plaintiff had reformed, and burden of showing her unchastity was on defendant.

26. Statutory rule applied in criminal case that woman seduced must have previously been chaste is inapplicable to civil action for damages.

27. In seduction, plaintiff need only prove her case by preponderance of evidence, statute requiring corroboration of prosecutrix in criminal cases being inapplicable (C. S., sec. 8955).

[49 Idaho 426]

28. Instruction authorizing recovery for second seduction by same man, if plaintiff had reformed during interval, held proper.

29. Instruction to disregard prior criminal and civil actions for illicit relations between parties which had been settled on merits, except as affecting credibility of witnesses and probability of relations claimed to have existed, held proper.

30. There is no hard-and-fast rule to ascertain whether particular facts constitute seduction, but each case must stand on own facts.

31. Disparity of ages of parties is always proper to be considered in action for seduction.

32. Where verdict is supported by sufficient testimony, it will not be disturbed by reviewing court.

33. Three thousand dollars to twenty-one year old single woman for second seduction by same defendant held not excessive. (C. S., sec. 6641.)

Page 75

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Action for damages for seduction. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

D. E. Rathbun and Tyler & Christensen, for Appellant.

The prosecution of a damage action and settlement thereof for the offense of seduction is a bar to the further prosecution [49 Idaho 427] of other actions for damages for seduction based on another alleged act of seduction of the plaintiff by the said defendant. In other words, the same plaintiff cannot be repeatedly seduced by the same defendant. Numerous acts of intercourse are only a part of the one seduction. (Gunder v. Tibbits, 153 Ind. 591, 55 N.E. 762; Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341; Davis v. Young, 90 Tenn. 303, 16 S.W. 473; 35 Cyc. 1308; Heggie v. Hayes, 141 Tenn. 219, 3 A. L. R. 150, 208 S.W. 605.)

Only one action may be had by the same plaintiff against the same defendant for breach of promise to marry and seduction when the breach of promise to marry and seduction are a part of the same transaction, and the prosecution of plaintiff's action for breach of promise to marry to a final judgment was a complete bar to this action for seduction, being based on the same facts. (Lanigan v. Neely, 4 Cal.App. 760, 89 P. 441; Osmun v. Winters, 25 Ore. 260, 35 P. 250; Rieger v. Abrams, 98 Wash. 72, 167 P. 76, L. R. A. 1918A, 362; Warner v. Benham, 126 Wash. 393, 34 A. L. R. 1358, 218 P. 260; Grubbs' Admr. v. Sult, 32 Gratt. (Va.) 203, 34 Am. Rep. 765.)

That the plaintiff was not a virtuous woman at the time of her alleged seduction was a proper matter to be pleaded and proved as a defense by the defendant. (Miller v. State, 27 Ga.App. 180, 107 S.E. 784; Bush v. Commonwealth, 205 Ky. 14, 265 S.W. 468; 6 Words & Phrases, 7, First Series, on Seduction, and the following cases quoted there; Bailey v. O'Bannon, 28 Mo.App. 39, 50; State v. Wheeler, 108 Mo. 658, 18 S.W. 924; Wilson v. State, 73 Ala. 527.)

It is error to refuse testimony of the reputation of plaintiff for using vulgar language and unladylike talk. In an action for seduction, the virtue of the plaintiff being in issue, and vulgar language, if used by the plaintiff, being the best index to her heart, was evidence of unchastity. (West v. Druff, 55 Iowa 335, 7 N.W. 636; Schultz v. Schultz, 203 Iowa 910, 210 N.W. 94; State v. Wilcoxen, 200 Iowa 1250, 206 N.W. 260.)

[49 Idaho 428] B. H. Miller for Respondent.

The first error assigned recites that the court erred in overruling defendant's motion to dismiss the action. Said motion was based on the assumption that the instant action is res judicata, and in support of that assumption appellant attempts to show that at some other time an action was filed for a former seduction, a settlement had and said action dismissed. That at another time an action by the same plaintiff against the same defendant was tried in this court wherein damages were recovered for an alleged breach of promise of marriage.

Said motion sought to have the trial judge determine, as a question of law, that which is solely a question of fact, without the submission of any proof, whether or not respondent had been robbed of her virtue by appellant, and that if she had at any time parted with her virtue there could be no reformation sufficient as the basis for a subsequent action based upon subsequent acts, and, therefore, that respondent was incapable of being seduced.

In the case of State v. McClure, 159 Iowa 351, 140 N.W. 203, a prosecution for seduction, it is said:

"The defense is based largely on the complaint that prosecutrix was unchaste at the time of the alleged seduction. The claim here is, as we understand it, that the evidence which he produced was such that we should say that the element of chaste character was not sufficiently sustained. This was for the jury."

In the case of State v. Norman, 160 Iowa 158, 140 N.W. 815, a prosecution for seduction, it is said:

"Nor should the jury's findings that the prosecutrix was of previous chaste character be interfered with. The issue was for the jury" (citing authorities).

In the case of People v. Squires, 49 Mich. 487, 13 N.W. 828, a prosecution for seduction, it is said:

"The want of chastity at a time six months prior to the offense was admitted, and the validity of the prosecution depended on the sufficiency of what appeared to satisfy the jury beyond a reasonable doubt that in that interval of separation she became reformed and restored to virtue and so remained until the respondent's successful solicitation on his return home." (Robinson v. Powers, 129 Ind. 480, 28 N.E. 1112; Gemmill v. Brown, 25...

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