Burkett v. Gerth

• Decision Date: 05 June 1923
• Docket Number: No. 17350.,17350.
• Parties: BURKETT v. GERTH.
• Court: Missouri Court of Appeals

253 S.W. 199

BURKETT v. GERTH.

No. 17350.

St. Louis Court of Appeals. Missouri.

June 5, 1923.

Appeal from Circuit Court, Lewis County; J. A. Cooley, Judge.

"Not to be officially published."

Action by George Burkett against Fred Gerth. Judgment for plaintiff, and defendant appeals. Reversed.

P. O. Sansberry, of Wyaconda, J. A. Whitesides and T. L. Montgomery, both of Kahoka, and Higbee & Mills, of Lancaster, for appellant.

Hilbert & Henderson, of Monticello, John M. Jayne, of Memphis, and J. H. Talbott and B. L. Gridley, both of Kahoka, for respondent

BIGGS, C.

The petition charges that on or about the _____ day of March, 1919, and divers times since said date, the defendant, Fred Gerth, in the county of Clark and state of Missouri, with force and arms, maliciously, rudely, and wantonly assaulted one Emma May Burkett, who was then the daughter and servant of plaintiff, and then and there maliciously and wantonly debauched and carnally knew the said Emma May Burkett, so that the said Emma May Burkett "became pregnant, sick, and quick with child, etc. Allegations are made covering plaintiff's loss in the way of medical and nursing bills for his daughter; also loss of her services, comfort, and society and also loss to plaintiff by reason of injured feelings, mental anguish, disgrace, and dishonor resulting from the acts of defendant. Plaintiff seeks both compensatory and punitive damages. After the filing of a general denial, there was a trial before a jury, resulting in a verdict and judgment for plaintiff in the sum of $2,000 actual damages. Defendant appeals.

The most important question presented for our determination arises from defendant's contention that the instruction in the nature of a demurrer to the evidence should have been given. The contention is made that the evidence is insufficient to support the verdict, and that the statements of plaintiff's daughter as to her ravishment by force when viewed in the light of the physical facts and also the surrounding facts and circumstances are so in conflict with the ordinary instincts and promptings of human nature as to entirely destroy and negative the force of such statements, and therefore they are of no probative value and do not constitute substantial evidence of the charges made in the petition. As this is the overshadowing question in the case, it will be necessary to detail the facts.

Plaintiff's daughter at the time of the alleged forcible defilement was 21 years of age. She resided with and kept house for her father, the plaintiff, in Wyaconda, a town of about 1,000 inhabitants in Clark county, and for about a year previous to the first alleged assault had been employed by defendant as a bookkeeper and clerk in his furniture store on the main street of Wyaconda. Her mother died in 1917. She testified in substance that the defendant in December, 1918, attempted to have sexual intercourse with her; that in March, 1919, she and the defendant were standing by the stove which was in about the middle of the store on the south side; that he (the defendant)—

"began to pet me up and put his arms around me and on my breasts and further down, and he said let's do it, and I resented it and told him it wasn't right and that we mustn't do, it and he turned around and put his hands to my back and pushed me to the back of the store. I tried to fight him off and tried to get away from him, but he just pushed me back there and he got me back there by the side of the couch. He put his arms around me and took his foot and tripped me and threw me on the couch and then he jumped on top of me the full length of his body and kissed me and all the time I was pushing and trying to get him not to do it, but he did. He had sexual intercourse with me at the time and from that time on until about December 1, 1919, he had intercourse with me on an average of about every week or 10 days."

She testified that on all of these occasions she did not consent to the act, but resisted it each time and that she had never had intercourse with any man other than the defendant. She further testified that defendant went to Florida with his family in December, 1919, and returned on February 14, 1920; that for a day or two thereafter he was gone to other places and when he returned he said:

"He had heard gossip about me and wanted to know if there was anything to it, and he asked me if I was in a family way and I told him I didn't think I was, and he said if there is anything to it he wanted me to go and get rid of it. He said he had helped many a girl out of trouble and he was going to help me. He suggested that I go to my aunt's in Chicago and get a doctor to get rid of it, and after a week or two I could come home and go to work for him again and I told him I didn't intend to work all summer and he said I could work for a month or six weeks and that would lead people to think nothing ever happened. He told me to go and that he was going to help pay my way and my expenses while I was there and he gave me $50.00."

She further testified that her child was born at her father's house on February 28. 1920, and that Dr. Tayman was the attending physician.

On cross-examination plaintiff's daughter testified that defendant's store, where they sold pianos, victrolas, and all kinds of furniture and where were kept the books of a burial association composed of 1,000 members, many of whom came there to pay dues and where people came in great numbers every day to trade and where a brother of defendant had an office which, however, he did not use often, was situated on the main public street of the town with other shops on each side of it and across the street were other stores and also the post office; that both sides of the street for a block were built up with business houses; that the front door of defendant's store was built flush with the sidewalk with plateglass windows and also glass in a large double entrance door; that in the front of the store were furniture and pianos and that the stove was about 30 feet from the front door; that the first act of intercourse took place in the store at about 4:30 or 5 o'clock on an afternoon in March, 1919; that she did not at any time or at any other times when the defendant assaulted her cry out or call for help, nor was her clothing at any time torn, nor were there any scratches on her face or body or on the defendant's; that she returned after the first forcible assault and continued to work for defendant all the time he was forcibly having intercourse with her and that she made no report of those assaults upon her to her father or any one else until a few days before her child was born; that at the time the assaults took place which was always during business hours the front door of the store was not locked and she could not remember whether the door was closed on such occasions; that during the time she had a sweetheart, one Raymond Schuster, to whom she had been engaged to be married for a period of about" a year before the child was born; that Schuster called on her about twice a week; that on some of these occasions they were alone in the house and that they made automobile trips together to nearby towns 'and would be out until 10 or 11 o'clock at night; that she and Schuster planned to be married on February 29th, and before that time, he knew she was pregnant and that on the day the child was born (February 28th), but before that event Schuster went to the county seat and procured a marriage license, and that they were to have been married the next day and would have been except for her confinement; that when Schuster returned with the license she was in confinement and that he stayed there at her father's house all that night and for two days thereafter; that during the time he was in and out of her room, waited upon her, carried her meals to her, and at times reclined his head on her pillow beside her; that after the child was born she and Schuster concluded not to marry...