Caccamisi v. Thurmond

• Decision Date: 22 November 1954
• Citation: 282 S.W.2d 633,39 Tenn.App. 245
• Parties: Vincent J. CACCAMISI, Plaintiff in Error. v. Vivian THURMOND, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 633

282 S.W.2d 633

39 Tenn.App. 245

Vincent J. CACCAMISI, Plaintiff in Error. v. Vivian THURMOND, Defendant in Error.

Court of Appeals of Tennessee, Western Section, at Jackson.

Nov. 22, 1954.

Certiorari Denied by Supreme Court May 6, 1955.

Petition to Rehear Denied by Supreme Court June 10, 1955.

W. J. Chiapella, Memphis, for plaintiff in error.

Davis & Davis, Earle P. Davis, and Tanner Davis, Memphis, for defendant in error.

BEJACH, Judge.

For convenience the parties will be styled as in the lower Court, plaintiff and defendant.

The plaintiff, Vivian Thurmond, filed a declaration against the defendant, Vincent J. Caccamisi in the Circuit Court of Shelby County, Tennessee. Her declaration consisted of two counts. In each count she asked for damages, actual and punitive in the sum of $50,000. The first count sues for seduction. The second count sues for breach of promise to marry. Count one of the declaration alleges:

'That the plaintiff is an unmarried citizen of Shelby County, Tennessee and that the defendant is a resident citizen of Shelby County, Tennessee.

'That in the year of 1945 when plaintiff was seventeen years of age, she was working in a restaurant. The defendant, who at that time was thirty nine years of age and with whom plaintiff was not acquainted, came to said restaurant on frequent occasions in an effort to meet her and go out with her. Plaintiff refused the defendant's advances and ultimately quit that job in an effort to get away from him. Though plaintiff secured a job at another restuarant, defendant ascertained her whereabouts and forced his attention upon her to such an extent that she was again compelled to quit and seek other employment.

'A short time later, when plaintiff was eighteen years of age, defendant saw her on her way home from work in the evening and offered her a ride in his automobile, which she refused until defendant introduced her to his sixteen year old son, by a former marriage who was in said automobile and assured her that his said son would ride to her home with him. Whereupon, the plaintiff accepted the invitation and allowed the defendant to drive her to her home. Upon this occasion defendant acted in a very gentlemanly manner but through this device obtained her home address. Thereafter for a period of approximately two months the defendant often called plaintiff on the telephone, had other persons call her and wrote her approximately three or four letters per week in an effort to have her go out with him in the evenings. Plaintiff continuously refused his invitations until on one occasion on or about the fifteenth day of January, 1947, when a woman with whom plaintiff was acquainted called her on the telephone and requested her to go out with the defendant that night, assuring plaintiff that she, the friend and her escort would spend the evening with the plaintiff and defendant. Plaintiff accepted this invitation and at the appointed time defendant called for her at her home. However, they did not meet the other couple as plaintiff had expected. Nevertheless, the defendant showered attention upon plaintiff and treated her in such a gentlemanly manner that she felt perfectly safe to go out with him unchaperoned. On this occasion the defendant took plaintiff to his jewelry store on the pretext of having some unfinished business to attend to. While there the defendant saw plaintiff admiring a piece of jewelry and promptly made a present of same to her. The same evening, upon ascertaining the place of plaintiff's employment and the type of work she performed, undertook to induce her to discontinue her job, offering to pay her the same amount of money to take employment in his store, assuring her that the work would be very light and much more suited to her.

'Plaintiff was so impressed by defendant's gentlemanly actions and courteous attention to her that when he asked her to go out with him the next night she readily agreed, and subsequently went out with him each evening for a period of approximately one week. During this period of time defendant continued to treat plaintiff with respect, was very kind to her, made numerous gifts of jewelry and clothing, and did persuade plaintiff to quit her job and induced her to take the above described employment in his store.

'Defendant told plaintiff that he was in love with her, and asked her to marry him. After she accepted employment in his store defendant told the other employees and many customers that she was to be the new 'missus' around there.

'Defendant courted plaintiff so fervently that at the end of this period of time, she was, or thought she was, in love with him, and had accepted his proposal of marriage.

'On one occasion after the above described courtship, the defendant induced plaintiff to accompany him to his living quarters in the rear of his store for the purpose of having a drink. The plaintiff was not accustomed to drinking intoxicants, she had acquired a sense of security with the defendant that she did, after much persuasion, go with the defendant to said living quarters and accept a drink. The defendant after plaintiff had drunk said drink, then persuaded her to drink another, assuring her that she would not become intoxicated by having consumed two drinks of whiskey. Thereafter, defendant made ardent love to plaintiff, vowing his love for her, and again repeating his promise of marriage. By defendant's false and fraudulent acts, promises, inducements and persuasion, defendant induced the plaintiff to consent to an act of illicit intercourse, this consent being given as a direct result of the acts and conduct of the defendant at said time, as aforesaid.

'Defendant by the further use of artifice, deception, false and fraudulent acts, over persuasion and continuous promises of marriage induced the plaintiff to submit to like acts on numerous occasions over a period from the time of the first act, as above mentioned, until on or about the 1st day of Nov. 1952.

'During the above described period of time and as a result of the above described act of seduction, plaintiff became pregnant, and on the 7th day of November, 1947, plaintiff gave birth to a girl child, which child from the date of its birth has been known by the name of Sandra Rose Caccamisi.

'Plaintiff would show that throughout the above described period of time defendant has continued his promise of marriage and that she has, particularly since the birth of said child, urged the defendant to marry her. Although defendant has during said period of time purchased and given to the plaintiff an engagement ring and a wedding ring; has continuously since the birth of said child accepted her as his own child; has during said period of time made gifts of clothing and other items of personal apparel to plaintiff, and on occasions too numerous to enumerate held her out to the public, her friends, and her family as his wife. He has on each occasion when the plaintiff has urged him to enter into the ceremony of marriage advanced some reason or excuse for further delay, to plaintiff's great humiliation and embarrassment, until Nov. 1952, when it became obvious to plaintiff that the defendant did not intend to marry her at all.

'Plaintiff alleges that the defendant is guilty of the continuous act of seduction as aforesaid from on or about the 25th day of January, 1947, to the 1st day of Nov. 1952; that said act was accomplished by artifice, deception, over persuasion, and a continuing promise of marriage made for the purpose of accomplishing said seduction; and that the plaintiff was made willing to part with her virtue by the said false and fraudulent acts, promises, inducements and over persuasion of the defendant, as aforesaid.'

It is not necessary to quote the allegations of count two of the declaration because that is no longer involved in this litigation.

Defendant filed pleas of not guilty and special pleas, the general tenor of which was a complete denial of all the allegations of plaintiff's declaration. In said plea, he alleges that the plaintiff was made pregnant by another man, and undertook to force the child on him; denies that he has recognized said child as his and denies that she is his child. With reference to the gifts claimed by plaintiff to have been given her by defendant, he claims that many of them were actually appropriations of his property by the plaintiff. He alleges that he has tried on repeated and numerous occasions to rid himself of the plaintiff and on many occasions it was necessary for him to call the police and have the plaintiff arrested and put under a peace bond to protect himself, his property and his employees. He alleges that the plaintiff was not a virgin at the time of their first act of intercourse, and alleges that the plaintiff advised him that she was married at that time, and that so far as defendant knows, she may still be married. He pleads that by reason of her being a married woman, her suit does not fall within the provision of Section 8628 of the Code. These pleas contain no reference to the Statute of Limitations.

Pursuant to an order of Court requiring him to plead specially, the defendant did file special pleas. These special pleas merely reiterate and elaborate with some additional details on the pleas previously filed by the defendant, but set up no new or additional ground of defense. Again, there is no mention of the Statute of Limitations. After the introduction of plaintiff's proof in the case, the defendant made 'a motion for peremptory instruction on both counts of the declaration, and made a further motion that in the event of the motion for peremptory instruction is not granted, that the plaintiff be required at this time to elect as to which count she will proceed upon, as is required or provided for by the 1949 Act.' The 1949 Act referred to, is carried forward into the 1950 Supplement to the Code of Tennessee in Sections 8462.1 to 8462.5. Section 8462.5...