Gemmill v. Brown

• Decision Date: 06 March 1900
• Docket Number: 2,556
• Citation: 56 N.E. 691,25 Ind.App. 6
• Parties: GEMMILL v. BROWN
• Court: Indiana Appellate Court

56 N.E. 691

25 Ind.App. 6

GEMMILL v. BROWN

No. 2,556

Court of Appeals of Indiana

March 6, 1900

Rehearing denied June 5, 1900.

From the Adams Circuit Court.

Affirmed.

J. J M. LaFollette, D. T. Taylor and O. H. Adair, for appellant.

E. R Templer, C. C. Ball, J. N. Templer and W. H. Williamson, for appellee.

OPINION

WILEY, C. J.

The record shows that the original pleadings were lost, and the cause proceeded to final judgment upon substituted pleadings. The appellee was plaintiff, and sued appellant to recover damages for her seduction. Her complaint was in two paragraphs, and a demurrer thereto was overruled. Appellant answered by general denial. The cause was tried by a jury, and resulted in a general verdict for appellee for $ 3,000. Over appellant's motion for a new trial, judgment was rendered on the verdict. The overruling of the demurrer to the first and second paragraphs of complaint and the overruling of the motion for a new trial are assigned as errors.

In determining the sufficiency of the complaint, a general statement of its allegations will not be out of place. It is charged that appellee was at the time of the alleged seduction, and still is, an unmarried female, under the age of twenty-one years; that in March, 1891, when she was only fifteen years old, at the solicitation and request of appellant, she went to live with him and his family; that at that time he was a widower, and still is an unmarried man; that appellant's family consisted of himself and two small children; that he was over fifty years old, was, and still is a man of large wealth and influence; that appellant then agreed with appellee that she would live with him and his family; that he would treat her as one of his own children; that she should go to school with his children, and that he wanted her to go with them for company; that he promised her and her parents to be kind to her and treat her right; that it was agreed that appellee should help in and about the household work, and aid in looking after and caring for appellant's children; that, in pursuance to said arrangements, she did go and make her home with appellant, and so remained until 1894; that from March, 1891, until the grievances complained of, appellant did treat her in a kind and affectionate manner; that he frequently expressed to her his love and admiration; that he frequently embraced and caressed her; that he gave to her valuable gifts, and promised to marry her. The complaint then contains the following averments: "And the plaintiff avers that, by reason of such kind and affectionate treatment by defendant of plaintiff, and on account of defendant's declarations of love and affection for plaintiff, and of his presenting her with gifts and presents, and on account of defendant's promise to make plaintiff his wife, he, the said defendant, thereby gained the plaintiff's esteem, respect, and confidence; and the plaintiff says that after the defendant had, in manner and form above pleaded, gained the plaintiff's affections and confidences that the said defendant, with wicked and unlawful design and purpose to betray her confidence and accomplish her ruin, did, on or about the -- day of October, 1892, at the defendant's said home, solicit and importune plaintiff to sexual intercourse with him, said defendant, and, to induce her to submit to his embraces, again promised to make her his wife, whereby, and by reason of her love and affection for, and her confidence in him, said defendant, she was induced to and did have sexual intercourse with him on said day." The above quotation is from the first paragraph of the complaint, and in connection with the general statement which precedes it is all that need be quoted or stated to dispose of the objections urged to it. As to the general averments, the second paragraph is substantially like the first, but contains the following: "And the plaintiff avers that the said defendant, totally disregarding the promises and agreements made to the plaintiff and her parents, as aforesaid, and wickedly intending to wrong, injure, debauch, and seduce plaintiff, took advantage of her youth and inexperience, of her position as a member of his family, as aforesaid, and of his experience and position, and with the wicked and corrupt intention and designs aforesaid the said defendant did, for the purpose of gaining the confidence, love, and respect of plaintiff, and to induce her to submit to his embraces and have sexual intercourse with him said defendant did, at various times, and from time to time, express his love and affection for plaintiff, and did embrace and caress plaintiff, and plaintiff says defendant made her many valuable presents and was kind and considerate toward plaintiff, and would and did take plaintiff riding, and said to plaintiff at various times that he thought she would make him a nice wife, that he loved her, and at divers times asked plaintiff if she thought he was too old for her, and if she loved him, and asked plaintiff if she thought she could live happily with him; whereby and by reason of which the plaintiff says that the said defendant, by the means of the said several promises, and his said expressions of love and affection for plaintiff, and by reason of the said uniform kind and affectionate treatment by defendant of plaintiff, the defendant did thereby gain her confidence and affections; and the plaintiff says that said defendant, having thus gained the plaintiff's confidence and esteem, did on or about the -- day of October, 1892, at the said home of defendant, at said county and State, solicit and importune her to sexual intercourse with him; and, to induce her to submit to his embraces, defendant told her that she ought to submit to him, that there would be no wrong in her doing so, that he would protect her, and he promised to make her his wife; whereby, and by reason of her youth and inexperience, and by reason of her affection for him, and by reason of her confidence in defendant, she was induced to and did have sexual intercourse with him on said day, and at various times thereafter."

The first objection urged to the complaint is that it does not aver a failure or refusal of appellant to keep and perform his alleged promise to marry appellee. Counsel urge that it is the theory of each paragraph of the complaint that the alleged seduction was brought about by appellant's promise to marry appellee, and that the complaint, omitting to charge that he failed and refused to keep that promise, makes it bad. If this were an action for a breach of a marriage contract, such averment would be necessary. From the allegations of the complaint which we have just quoted, it is evident that it does not proceed alone upon the theory that the seduction was brought about by the promise of marriage, but merely as one of the elements or means employed by appellant to accomplish appellee's seduction. But a promise of marriage is not a necessary element in seduction. In Ireland v. Emmerson, 93 Ind. 1, the court said: "A promise of marriage is one of the means often resorted to by the seducer to accomplish his purposes; but such promise is by no means a necessary element in seduction. That is, seduction may be accomplished without any promise of marriage."

The next objection to the complaint is that the first paragraph is insufficient because it does not aver that at and before the seduction appellee was a chaste and virtuous woman. Such allegation is unnecessary. To maintain her action it was unnecessary for appellee to prove her chastity, for the presumption of the law is in favor of a woman's chastity. Robinson v. Powers, 129 Ind. 480, 28 N.E. 1112. It being unnecessary to prove it, it was unnecessary to aver it, for a plaintiff is not required to aver more than is necessary to prove. This disposes of all objections urged to the complaint.

The motion for a new trial contained thirty-six reasons, and we will consider them in the order in which counsel have discussed them. (1) That the court erred in overruling appellant's motion for a change of venue from the county. This cause originated in Jay county. Appellant appeared to the action, and moved, on affidavit, for a change of venue from the county. His motion was sustained, and the venue was ordered changed to the Adams Circuit Court, and he was given fifteen days in which to pay costs and perfect change. He permitted the time to lapse without perfecting his change of venue, and the court afterwards taxed all costs up to that date, to him. Section 417 Burns 1894, provides that "only one change of venue shall be granted to the same party from the county," etc. This statute has often been construed, and the rule deduced from the unbroken line of authorities is that when one change is allowed or granted, whether it is perfected or not, the party who asked it can have no other change. The making of the order ends his right. He has then had the one change of venue allowed him, whether he avails himself of it or not. When a party applies to a court for a change of venue, it must be presumed that the application is made in good faith, and not for delay, but because the party asking it really believes he can have a fairer trial elsewhere. Michigan, etc., Ins. Co. v. Naugle, 130 Ind. 79, 29 N.E. 393; Musselman v. Pierce, 40 Ind. 120; Mershon v. State, 44 Ind. 598; Shriver v. Bowen, 57 Ind. 266; Musselman v. Pratt, 44 Ind. 126; Hutts v. Hutts, 62 Ind. 240; Indianapolis, etc., R. Co. v. Smythe, 45 Ind. 322.

(2) That the court erred in permitting appellant to answer the following question, while testifying for appellee, viz "How much land do you own, Mr. Gemmill, in the farm on which you live," etc. In cases of this character it is proper to inquire as to the financial...