Beseler v. Stephani

• Decision Date: 31 January 1874
• Citation: 71 Ill. 400,1874 WL 8684
• Parties: EMILY BESELERv.JACOB STEPHANI.
• Court: Illinois Supreme Court

71 Ill. 400

1874 WL 8684 (Ill.)

EMILY BESELER

v.JACOB STEPHANI.

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

Mr. S. S. WILLARD, Mr. D. J. SCHUYLER, and Mr. GEO. GARDNER, for the appellant.

Messrs. NISSEN & BARNUM, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action of trespass, by the appellant against the appellee.

The amended declaration, upon which the trial was had, contains four counts. It is alleged in the first count that the defendant assaulted the plaintiff, and, with great force and violence, seized hold of her, and, against her will, dragged and carried her from one room in the house of defendant, across the house to another room in the house, and there threw her upon the bed of the defendant, and there held and detained her for an hour, and attempted to carnally know her against her will, by reason of which she was greatly injured and became sick, sore and disordered.

The second count alleges that, on the 13th day of April, 1871, defendant assaulted the plaintiff, and, with great force and violence, seized hold of, and, against her will, held and detained her and carnally knew her, she then being sick, and that thereby she became injured, sick and disordered, and so remained for a long time.

The third count alleges that, on the 16th day of April, 1872, the defendant assaulted the plaintiff, and, with great force and violence, seized hold of her, and violently dragged her, while she was pregnant with child, and in the pains of child-birth, the defendant knowing her pregnant condition, out of and from his house to or upon the prairie or open field, and left her there alone, to suffer, without help or assistance, and that thereby she became sick and disordered, and suffered greatly in body and mind.

The fourth count is an allegation of an assault on the plaintiff by the defendant, and that she was greatly abused, wounded, ill-treated and injured by him.

The defendant pleaded not guilty, accord and satisfaction, and a release in writing under seal. To the last plea, plaintiff replied that the release was obtained by the fraud and covin of the defendant. Issues were properly joined, and the cause was submitted to a jury, under instructions from the court, who returned a verdict in favor of the defendant. Motion for new trial was made and overruled, and judgment rendered upon the verdict of the jury, to all which exception was taken.

The only questions argued under the errors assigned relate to the giving of instructions by the court, at the instance of appellee. It is not claimed by the counsel for appellant that there is such a preponderance of evidence in favor of appellant that a new trial should be granted, solely upon the ground that the verdict of the jury was not authorized by the evidence, but it is insisted that the evidence was so nearly balanced that the giving of an improper instruction by the court in behalf of either party would have necessarily induced the jury to return a verdict that way; and it is argued that the 1st, 3d and 5th instructions, given at the instance of the defendant, are erroneous, and improperly affected the action of the jury, and induced them to find as they did.

The 1st and 3d of these instructions are as follows:

“1. The court instructs the jury that the law does not permit a woman, who has been seduced, to maintain any action whatever against her seducer, for any damages for such seduction. Therefore, if the jury believe, from all the evidence in the cause, that the plaintiff was led to cohabit with the defendant, only because he seduced her, or was seduced by her, she can recover no damages for such cohabitation or its consequences.

3. If the jury believe, from the evidence, that the defendant was the father of the child referred...