Burke v. Middlesworth

• Decision Date: 29 January 1931
• Docket Number: 13,920
• Citation: 174 N.E. 432,92 Ind.App. 394
• Parties: BURKE v. MIDDLESWORTH
• Court: Indiana Appellate Court

174 N.E. 432

92 Ind.App. 394

BURKE v. MIDDLESWORTH

No. 13,920

Court of Appeals of Indiana

January 29, 1931

Rehearing denied April 30, 1931.

From Morgan Circuit Court; Joseph W. Williams, Judge.

Action by Tarsia M. Middlesworth against Harry S. Burke. From a judgment for plaintiff, the defendant appealed.

Reversed.

Willson & Willson and S. C. Kivett, for appellant.

White & Jones, John E. Sedwick and Thomas C. Whallon, for appellee.

OPINION

BRIDWELL, J.

The appellee brought her action against the appellant to recover damages. The case was tried upon the issues joined on an amended second paragraph of complaint, alleging assault and battery, and the third paragraph of complaint alleging seduction. The defendant's answer is in two paragraphs the first a general denial, the other a plea of settlement. A reply in general denial was filed to the second paragraph of defendant's answer. Upon the issues thus joined, the case was submitted to a jury for trial resulting in a verdict for the appellee in the sum of $ 8,000. Appellant filed his motion for a new trial, and, pending the court's ruling on this motion, appellee filed a remittitur in the sum of $ 4,000. This remittitur was accepted by the court and motion for a new trial overruled, to which ruling the appellant excepted. Judgment was rendered in favor of appellee in the sum of $ 4,000 and this appeal perfected.

The error relied upon for reversal is the overruling of appellant's motion for a new trial, assigning 26 separate and several reasons why same should be granted. Of the reasons assigned, appellant properly presents the following: Overruling of defendant's (appellant's) motion filed at the close of all the evidence to instruct the jury to return a verdict for the defendant on the third paragraph of the complaint; error in giving each of the instructions Nos. 13, 14 and 15; error in refusing to give each of instructions Nos. 4 and 5 tendered by the defendant; that the verdict of the jury is not sustained by sufficient evidence and that the verdict of the jury is contrary to law.

In determining as to whether the court below properly overruled the defendant's (appellant's) motion to instruct the jury to return a verdict for the defendant on the third paragraph of the complaint, it is necessary to consider the evidence. There is evidence of defendant's having sought the society of plaintiff frequently; of his protestations of love for her; of his kindness and courtesy; of his discussing with her his business and personal affairs; of his statement to her that he desired to get a divorce and marry her, and of a course of conduct calculated to win plaintiff's confidence and affection and to bring about the seduction claimed. At the time of yielding by the plaintiff, she knew that defendant was a married man, but this knowledge on her part was not of itself sufficient to preclude recovery. A promise of marriage is not a necessary element in seduction, though often one of the means used to accomplish the purpose. Ireland v. Emmerson (1884), 93 Ind. 1, 47 Am. Rep. 364; Gemmill v. Brown (1900), 25 Ind.App. 6, 56 N.E. 691; Marshall v. Taylor (1893), 98 Cal. 55, 32 P. 867, 35 Am. St. 144; Gunder v. Tibbits, Admr. (1899), 153 Ind. 591, 55 N.E. 762; Bradshaw v. Jones (1899), 103 Tenn. 331, 52 S.W. 1072, 76 Am. St. 655.

If there was any evidence from which the jury could reasonably reach the conclusion that the plaintiff was seduced by the defendant, as charged in the complaint, no matter how sharp the conflict in the evidence may be, it was the duty of the court to overrule the motion presented and leave the questions of fact to the jury. This rule of law is so well established that we cite no authority in support of same. There was no error in overruling defendant's motion to instruct the jury to return a verdict for the defendant on the third paragraph of the complaint.

The giving of instruction No. 13 is another of the reasons stated in the motion for a new trial, and this instruction, as given, was in terms as follows: "Under the issues in this cause, it will be incumbent upon you to consider the amended second paragraph of the complaint charging assault and battery, in which the plaintiff complains of the defendant of an injury growing out of said alleged assault and battery. If you should find from a preponderance of the evidence that, upon the occasion or occasions charged in the said second amended paragraph of complaint, the evidence establishes by a preponderance of the evidence thereof that the defendant did, in fact, commit an assault and battery upon the person of the plaintiff, as charged in the complaint, that, as a result of said assault and battery, she was injured as charged in the complaint, then the court instructs you that the plaintiff would be entitled to recover damages under said amended second paragraph of the complaint, and you should award her such an amount as will reasonably and fairly compensate her for such injury. This would be true only on condition that the plaintiff has not already been compensated by the defendant for such alleged injury. The contention of the...