Bishop v. Liston

Decision Date31 July 1924
Docket Number22871
Citation199 N.W. 825,112 Neb. 559
CourtNebraska Supreme Court

APPEAL from the district court for Lincoln county: J. LEONARD TEWELL, JUDGE. Affirmed.


Beeler Crosby & Baskins and Stewart, Perry & Stewart, for appellant.

Halligan Beatty & Halligan, contra.

Heard before MORRISSEY, C. J., DAY, GOOD and THOMPSON, JJ., and BLACKLEDGE, District Judge.



Plaintiff recovered a judgment for damages for felonious assault, committed on her person by defendant, and the latter has appealed.

In her petition plaintiff alleged, in substance, that on the night of September 5, 1920, while she was an over-night guest at the home of defendant and sleeping in a room by herself, defendant wrongfully and forcibly entered her room through a window and, without her consent, made an assault upon her and carnally knew her; that by reason thereof she became pregnant and will in due time give birth to a child, and that at said time she was 17 years of age, chaste and unmarried. Defendant's answer was a general denial. The case was submitted to the jury upon the theory that the rape was accomplished without force. There was a verdict for the plaintiff in the sum of $ 7,000 and judgment thereon.

There are numerous assignments of error, but they may be grouped and disposed of under five heads, the first of which is that the evidence is insufficient to warrant the finding that the defendant committed the assault complained of.

From the record it appears that defendant owned and lived upon a ranch in Lincoln county, Nebraska; that plaintiff's parents lived in one of defendant's houses, quite near defendant's home, and that her father was in the employ of defendant; that plaintiff was frequently at the home of defendant; sometimes was employed as a domestic by some of the families in the neighborhood, and that on a number of occasions defendant took her in his car to her place of employment and back to her home. Plaintiff testified that on a number of these occasions defendant made indecent proposals, which were spurned; that on the night in question, at the request of Mrs. Stoetzel, who was employed by defendant, plaintiff stopped over night at defendant's home; that she occupied a room alone, and that during the night defendant entered her room through a window and accomplished his purpose; that on May 29, 1921, plaintiff gave birth to a fully developed child.

Defendant is a married man, 51 years of age, and of large stature. On the witness-stand he denied that he had made indecent proposals to plaintiff, or that he had entered her room, or had ever carnally known her. Plaintiff testified that on the night in question the window in her bedroom was open to its full height and that the next morning the screen was hanging by hinges or hooks at the top and unfastened at the bottom. The evidence on behalf of defendant was to the effect that the woodwork of the bedroom, occupied by plaintiff, had been painted during the latter part of the previous July; that, at that time, the window was raised six or eight inches, and that the paint caused the sash to adhere to the window frame or casing, so that it could not be raised or lowered from that position, and that it remained in this condition until the latter part of the following December; that the screen was securely fastened from the inside, and that it was utterly impossible for the defendant, under the circumstances, to have entered, through the window, the room occupied by plaintiff.

Whether the screen was securely fastened from the inside and whether the window was raised to its full height, as claimed by plaintiff, or was stuck at a height of six or eight inches, so that it could be neither raised nor lowered, and whether defendant entered the room through the window and committed the assault on plaintiff, are all questions of fact that were properly submitted to the jury upon conflicting evidence. Under such circumstances, their verdict is conclusive.

Defendant's second proposition is that, under the common law, which he asserts is in force in this state, as applied to actions of this character, a civil action for damages will not lie, where there is consent on the part of the female; that the maxim volenti non fit injuria applies; that plaintiff, having consented to her defilement, is precluded from recovering damages therefor. It is doubtless true that at common law an adult female could not recover where she consented to her ravishment, but the conduct of plaintiff short of consent was no justification. 33 Cyc. 1521, and the cases there cited. Section 3085, Comp. St. 1922, provides: "So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed by the legislature of this state, is adopted and declared to be law within the state of Nebraska."

This does not signify, however, that the common law is in full force and effect in Nebraska. If it is inapplicable to our needs and conditions, or conflicts with constitutional or statutory provisions, it is not in force. At common law, rape was the unlawful carnal knowledge of a woman over the age of ten years, forcibly and without her consent, or such carnal knowledge of a female child under the age of ten years, either with or without her consent, but this has been modified by statute in Nebraska. Section 9551, Comp. St. 1922, provides in part as follows: "Whoever shall have carnal knowledge of any other woman, or female child, than his daughter or sister, as aforesaid, forcibly and against her will; or if any male person, of the age of eighteen years or upwards, shall carnally know or abuse any female child under the age of eighteen years, with her consent, unless such female child so known and abused is over fifteen years of age and previously unchaste, shall be deemed guilty of a rape." The evidence in this case discloses that the plaintiff was under the age of 18 years and was previously chaste, and that defendant was above the age of 18 years, to wit, 50 years, at the time the offense was committed. It follows that the act constituted rape within the meaning of the Nebraska statute.

Defendant, however, contends that it was not the intent or purpose of the legislature, in changing the criminal law, to enlarge the civil liability in that respect. The precise question has not been decided by this court.

The question of the civil liability of a male person for having carnal...

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