Breiner v. Nugent

• Decision Date: 11 April 1907
• Citation: 136 Iowa 322,111 N.W. 446
• Parties: BREINER v. NUGENT.
• Court: Iowa Supreme Court

136 Iowa 322

111 N.W. 446

BREINER

v.NUGENT.

Supreme Court of Iowa.

April 11, 1907.

Appeal from District Court, Greene County; F. M. Powers, Judge.

This is a civil action for seduction. Upon trial to a jury, a verdict was returned for the plaintiff, upon which, after a reduction by the trial court, judgment was rendered, and defendant appeals. Reversed.Salinger & Korte and E. B. Wilson, for appellant.

Gallaher & Graham, for appellee.

DEEMER, J.

Plaintiff commenced her action in January of the year 1904, by filing a petition, in which she alleged that defendant seduced her on or about March 23, 1903. Thereafter she filed a substituted petition, in which she averred that the seduction occurred March 30, 1903, and, in an amendment to the substituted petition, she alleged that it occurred November 1, 1902, and that intercourse was also had on three different occasions in the month of March, 1903, which last resulted in pregnancy and the subsequent birth of a child. She also pleaded special damages resulting from prolapsus of the uterus, mental anguish caused by said pregnancy and birth of a child, and for medical services. The answer was a general denial. At the conclusion of the testimony, defendant filed a motion to require plaintiff to elect as to which act of intercourse she desired to recover for. This was overruled, but plaintiff thereafter withdrew all claims for damages by reason of the seduction of plaintiff on March 30, 1903. The trial court then submitted the case to the jury on the proposition as to whether or not defendant seduced plaintiff in November of the year 1902.

The twenty-first instruction, given by the court at defendant's request, reads as follows: “All evidence bearing upon the questions of childbirth, pregnancy, loss of health, diseased or displaced womb, loss of time, doctor's bills, value of nursing in plaintiff's sickness, physical and mental pain resulting from pregnancy and childbirth, and any other subsequences resulting from the claimed intercourse between the parties hereto subsequent to the claimed seduction on November 1, 1902, and all damages claimed to be resulting therefrom, are by the court withdrawn from your consideration, and, in your deliberations in this case, you will confine yourselves to the claimed seduction alleged to have occurred about November 1, 1902, if from the evidence you find that the plaintiff was then seduced by the defendant, as seduction is defined and explained in these instructions.” The reason for this instruction was, undoubtedly, plaintiff's withdrawal of the alleged seduction occurring in March of the year of 1903. Plaintiff claimed in her testimony that she became engaged to marry defendant on or about October 7, 1902, and that he seduced her in virtue thereof and of other artifices, etc., on or about November 1, 1902. Complaint is made of some leading questions propounded to plaintiff by her counsel. This is largely a matter within the discretion of the trial court, and this is true, although the testimony is taken in the form of a deposition. In rare instances only will a case be reversed because of leading questions put by counsel. No abuse of discretion sufficient to justify a reversal is shown here.

One Reynolds was a witness for defendant, who gave testimony as to certain admission made by plaintiff. On cross-examination, he said he was not defendant's attorney in this suit; that he had never appeared of record, but that he had assisted defendant in some matters, and had never withdrawn his appearance as one of defendant's attorneys in the case. He also admitted that he had taken depositions and interviewed one or two witnesses. In rebuttal, plaintiff was permitted to show an appearance for defendant by Reynolds in a criminal case against him (defendant), and also produced the certificate of a notary public before whom a deposition in this case was taken, showing an appearance of Reynolds for defendant. This certificate was not, perhaps, admissible in evidence; but, as the witness had already admitted his taking of depositions for defendant, no possible prejudice resulted.

Plaintiff was permitted to prove the birth of a child and consequent suffering, expense, etc. The evidence shows that this child must have been conceived some time in March of the year 1903, and it is contended that such testimony was inadmissible. If this were a criminal case, where it was claimed that plaintiff was seduced the previous October or November, doubtless such testimony would be inadmissible. People v. Kearney, 17 N. E. 736, 110 N. Y. 188. This, for the very plain reason that the birth of a child at a time which shows conception to have taken place something like four months after the alleged seduction is said to have occurred, would have no tendency to prove seduction on the prior date. But being a civil case, and the acts being in the nature of continuing ones, subsequent conception may be shown in connection with other testimony showing seductive arts, as bearing upon the damages to which plaintiff is entitled. In civil actions for seduction, it is the universal rule that continuous acts of intercourse, resulting from false promise or artifices, may be shown. Indeed, some of the cases treat the last act, if it results in childbirth, as the seductive one, especially where the question relates to the bar of the statute of limitations. Ferguson v. Moore, 39 S. W. 341, 98 Tenn. 342;Davis v. Young, 16 S. W. 473, 90 Tenn. 303;Russel v. Chambers, 16 N. W. 458, 31 Minn. 54;Haymond v. Saucer, 84 Ind. 5;Keller v. State, 102 Ga. 506, 31 S. E. 92;Lemmon v. Moore, 94 Ind. 40. In Thompson v. Clendening, 1 Head (Tenn.) 295, it is said: “The whole of defendant's intercourse with the seduced, and all the circumstances connected with it, are to be regarded as one entire transaction, as well in view of the question whether defendant is the father of the child as to show the extent of the injury, in aggravation of damages.” In the amendment to the substituted petition to which we have referred, plaintiff alleged that the seduction occurred on or about November 1, 1902, and further averred: “That after the 1st day of November, 1902, and on or about the month of March, 1903, sexual intercourse between this plaintiff and defendant was again had upon three different occasions, the last of which occurred on or about the 30th day of March, 1903, and your plaintiff avers that her consent to such intercourse, upon each of such occasions, was obtained by the defendant by means of such false promises of marriage, deception, deceit, flattery, arts, and wiles as are hereinbefore alleged.” In view of these allegations, there was no error in permitting plaintiff to give evidence of acts of intercourse occurring after November 1, 1902, and of the birth of a child occurring as a result thereof. Smith v. Milburn, 17 Iowa, 30. When the testimony was offered, it was clearly competent and material. After plaintiff had withdrawn all claims for damages by reason of the seduction on March 30th, the trial court gave instruction 21, which has already been quoted. Of this defendant has no cause for complaint. What we have said as to the testimony regarding pregnancy disposes of a claim that the court was in error in admitting testimony of experts regarding plaintiff's condition of health after the birth of her child.

2. A witness by the name of Shipman, for whom plaintiff and defendant worked, testified that defendant came to her and said, “Mrs. Shipman, have you heard the story they have got against me?” to which witness answered that she had. Defendant then stated, “Well, I never had anything to do with that girl in my life, I never went with her,” to which witness responded that he was the only man she had ever seen in her company. This testimony is set out in narrative form in the abstracts, and the record with reference thereto is as follows: “Answer is moved to be stricken for the same objections made to the question. Overruled. Defendant excepts.” The objections and motion to strike made to the testimony of Mrs. Shipman as to what she said to defendant were that same was incompetent, immaterial, irrelevant, and not binding on defendant. The questions eliciting this testimony are not set out, and we do not know what they were. At any rate, no question is made regarding the objections to the questions. The alleged error here was in not sustaining the motion to strike the testimony. There are at last two reasons why this matter cannot be complained of as error. If no objection was made to the question, or no exception taken to the ruling on the objection, and the answer was responsive thereto, as we must assume that it was, in the absence of a motion based upon the ground that it was not responsive, then defendant is in no position to complain of the ruling on his motion to strike the answer. He will not be allowed to speculate upon the witness' answer, and, if he is in no position to complain of the ruling which resulted in giving of the testimony, he cannot by motion after the testimony has been received based upon the same ground as the objections to the question, insist that the court again pass upon the matter; the answer being unfavorable to him. He should stand upon his objection to the question; otherwise he might speculate upon the answer, and, if in his favor, allow it to stand, otherwise have it stricken out. The record is in no such shape as that defendant may complain of the ruling. Moreover, the fact that defendant went to the witness to deny a story which was in circulation, and made an untrue statement with reference to his connection with the girl, was probably admissible in evidence. Defendant made these statements to one who had employed both plaintiff and defendant, and who knew that they had been in each others' company, and he was either trying to exculpate himself, or to get a statement from a material witness against him, which might be used against...