Ferguson v. Moore

• Decision Date: 06 February 1897
• Citation: 39 S.W. 341,98 Tenn. 342
• Parties: FERGUSON v. MOORE.
• Court: Tennessee Supreme Court

39 S.W. 341

98 Tenn. 342

FERGUSON v. MOORE.

Supreme Court of Tennessee.

February 6, 1897

Appeal from circuit court, Lincoln county; Dan Williams, Special Judge.

Action by Sue Kate Ferguson against R. A. Moore for breach of promise of marriage and seduction. Judgment for plaintiff and defendant appeals. Reversed.

Holman & Carter, for appellant.

Jo. G Carrigan, Bright & Woodard, and Higgins & Son, for appellee.

WILKES J.

This is an action for damages. The declaration has two counts,-one for breach of contract to marry, and the second for seduction accomplished by reason of such contract. The cause was heard before a court and a jury of Lincoln county, and a verdict for $2,000 was rendered upon the first count, and of $12,700 upon the second, and for the aggregate sum of $14,700 judgment was rendered for plaintiff, and defendant has appealed, and assigned errors.

It is assigned as error, first, that the court permitted plaintiff over the defendant's objection, to prove that she was a member of the church, and had been for nine years. In this there was no error. It was a circumstance bearing upon the standing and reputation of plaintiff, and entirely competent.

Plaintiff was asked if she was not furnished with a written statement by her attorney, to memorize, in regard to what she would swear about an abortion and the birth of a child at Chattanooga. The court sustained an objection to the question. In this we think there was no error. It was not a proper question to ask. She had already testified that no one wrote out a statement for her to memorize or swear to, and she had seen no such statement.

Plaintiff was asked if she did not tell defendant that she intended to kill the child, and that he told her not to do so. This was objected to by plaintiff, and objection sustained, and this is assigned as error. This was not material to the issues involved. Moreover, the question was answered in the negative. This is not error.

Dr Hall was asked if a child prematurely born would cry. The question was objected to, and objection sustained, and this is assigned as error. The question is asked in the most general way, without specifying the age of the child. It does not appear what the answer would have been, and it is evident that no intelligent answer could have been given to such question asked in such general way.

It is objected that the court erred in saying to the jury that, in order to constitute seduction, it was not indispensable that the man use seductive arts or promises, but any act or promise or deception of the man, by which he overcomes the scruples of the woman, and induces her to have unlawful sexual intercourse with him, would constitute the offense. In immediate connection with this portion of the charge complained of the court added: "But if the woman, without being deceived, and without any false promises, deception, or artifice, voluntarily submits to the connection, the law affords her no remedy, and she cannot recover." It will be borne in mind that the seduction was charged to have been accomplished under promises of marriage. This, taken together, is not erroneous, and is a plain, simple statement of the law that any jury could understand and not misconstrue.

The trial judge said to the jury: "You are the exclusive judges of the facts of the case, and you are the judges of the law as delivered to you by the court." This is an unhappy expression, and the jury may have been misled into believing that in some way and to some extent they were judges of the law. Evidently the court intended to say that the jury must take the law as given by the court. The jury may, however, have put a different construction upon it. In a civil case the jury are in no sense the judges of the law, but they take it as given by the court.

It is assigned that the circuit judge was in error in charging that seduction was a continuous act, and if, by several and continuous acts, promises, and artifices, the defendant kept up his illicit intercourse until September, 1894, and the action was brought in February, 1895, then the action would not be barred by the statute of limitations. It is admitted that this is in accord with the holding of this court in Davis v. Young, 90 Tenn. 303, 16 S.W. 473, but it is insisted that case should be overruled, or, at least, not extended to cases where the suit is by the seduced female, instead of the father, as in that case. We have no disposition to overrule or limit the case in its application as suggested.

It is assigned as error that the verdict was a gambling verdict as to the first count. We do not so read the record; but the testimony of the jurors given in the record shows, to the contrary, that, while they took an average of their several judgments, it was only a tentative mode of arriving at a verdict, and was not satisfactory to any one, and was abandoned, and verdict was rendered for only half the amount of the average. The damages under the second count do not appear to have been reached by any mode but that recognized by law; that is, by conference and agreement among the jurors.

The court was requested to charge that, if plaintiff consented to an abortion, she...