Eckhart v. Peterson

• Decision Date: 26 January 1917
• Docket Number: 13539.
• Citation: 162 P. 551,94 Wash. 379
• Court: Washington Supreme Court
• Parties: ECKHART v. PETERSON.

162 P. 551

94 Wash. 379

ECKHART v. PETERSON.

No. 13539.

Supreme Court of Washington

January 26, 1917

Department 1.

Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.

Action by Amelia Eckhart against Charles Peterson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Freece & Pettijohn, of Davenport, W. E. Southard of Wilson Creek, and H. C. Erickson, of Krupp, for appellant.

H. N Martin, of Davenport, C.J. Lambert, of Wilson Creek, and F K. P. Baske, of Davenport, for respondent.

ELLIS, C.J.

Action for damages for personal injuries charged as the result of an assault and forcible rape which it is alleged was inflicted by defendant upon plaintiff on April 15, 1914. The specific injuries complained of and for which damages are claimed are set out in the complaint as follows:

'(1) * * * Said defendant rudely seized the plaintiff and committed an assault upon her as follows to wit: Dragging her into the bedroom, throwing her upon the bed, and raping her three times in succession, holding her all of the time flat on her back upon the bed for an hour or more, twisting straining, and wrenching her back, thereby injuring it permanently. As a result of said raping and sexual intercourse had as above stated the plaintiff became pregnant, and was delivered of a child January 18, 1915, all of which said acts so done by the defendant to the plaintiff were forcibly done by said defendant, with force and against the will and without the consent of this plaintiff.

'(2) That said defendant greatly frightened the plaintiff by entering said house, seizing her, and throwing her upon the bed and raping her, impregnating her, thereby causing her to have a child, all of which said acts caused her to suffer great mental pain and anguish, and did thereby damage this plaintiff in the sum of $11,000.

'(3) That said defendant by committing the assault upon this plaintiff as in said paragraph 1 stated, namely, by seizing her, throwing her upon the bed, forcing her to have sexual intercourse with him for three times, forcing her to lay [lie] flat on her back for an hour or more, by permanently injuring her back, by wrenching and twisting it to such an extent that the plaintiff has suffered severe pain in the small of her back ever since, and by reason of the defendant's said treatment the plaintiff has been unable to work and has suffered great physical pain, and by reason of the defendant's raping the plaintiff as above alleged she became pregnant and in due time had a son by the defendant, all of which said acts so done by the defendant on the plaintiff were done contrary to her consent and against her will and consent, forcibly and maliciously, there causing this plaintiff to suffer great physical pain and torture, to her irreparable damage in the sum of $12,000, in which sum said defendant has damaged this plaintiff.'

Then follows a prayer for judgment for $23,000, and costs. The cause went to trial upon the issues so tendered.

We shall not attempt to set out, even in substance, the disgusting details of the needlessly voluminous and hopelessly conflicting evidence adduced on both sides. It must suffice to say that plaintiff testified to the effect that she was an unmarried woman 22 years old; that she was employed as a domestic in defendant's home for several months in 1913, and again from February on through having time till about the middle of July, 1914; that during his wife's absence, at about 2 o'clock p. m. on April 15, 1914, defendant forcibly ravished her in the manner set out in the complaint. She admitted that she prepared the evening meal for defendant, his wife and son, on that day, and, notwithstanding her alleged injuries, continued in his employment until the following July, doing the usual work of a domestic on the farm, from time to time attending dances with defendant and his wife, and made no complaint to any one till shortly before she gave birth to a child on January 18, 1915. Defendant positively denied any improper conduct with plaintiff either with force or otherwise, and testified that he accompanied his wife to the town of Krupp on the day in question and did not return to his home till late that afternoon. In this he was corroborated by his wife and several other witnesses.

The jury returned a verdict for $5,000. At appropriate times defendant moved for a directed verdict, for judgment non obstante veredicto, and for a new trial. All of these were denied, and judgment was entered upon the verdict. Defendant appeals.

1. Over appellant's objection that it was outside the issues tendered by the complaint, respondent was permitted to testify to a severe injury and bruising of her arm, resulting in much pain. Over the same objection a physician was permitted to testify that he had examined respondent shortly before the trial, and found a displacement of the womb resulting in 'female trouble,' which would probably necessitate an operation, and which he attributed to childbirth. Appellant urges that the admission of this testimony was error. Respondent retorts that appellant should have moved to make the complaint more specific or to require a bill of particulars, and in any event should have moved for a continuance when he saw the latitude which the evidence would be permitted to take. The complaint did not suggest the necessity for a bill of particulars, much less require it. A motion either to make more specific or for a bill of particulars soundly must have been denied. Moreover, the function of a bill of particulars is not to set forth the cause of action or ground of defense; these are a function of the original pleading. Dudley v. Duval, 29 Wash. 528, 70 P. 68.

Here the complaint itself set forth the injuries therein mentioned with all the exactness of a bill of particulars. It would be a novel doctrine to hold where, as here, are set forth definite and specific injuries for which damages are claimed without any allegation, either general or specific of other injuries, that unless the defendant demands further specification, he assumes the risk of having to meet, over timely objection, evidence as to injuries not specified, both direct and consequential. Under such a doctrine respondent might just as well have been permitted to introduce evidence of a broken leg, impaired sight, or hernia without pleading anything of the kind. While some latitude must be allowed to a pleader in his specification of injuries complained of ( Clukey v. Seattle Electric Co., 27 Wash. 70, 67 P. 379), the injuries of which proof is admitted must be such as would be expected naturally to result from those alleged, either specifically or generally. Horton v. Seattle, 53 Wash. 316, 101 P. 1091; Howells v. North American, etc., Co., 24 Wash. 689, 64 P. 786.

Nor was it incumbent upon appellant to move for a continuance in the absence of an amendment to the complaint. He had the right to demand a correct ruling confining the evidence to the issues as made up, thus forcing respondent to stand on her pleading or ask leave to amend. After such amendment, and then only, should the failure to ask a continuance on the ground of surprise be construed as a waiver. Any other view would practically abrogate the necessity for framing issues by a plain and concise statement of the facts as required by statute (Rem. 1915 Code, § 258), and would make an objection to the introduction of evidence as outside the issues an idle formality. The rule that, where issues have been extended through the admission of evidence which would have warranted a trial amendment, such amendment will be considered as made, is not invokable where the evidence was admitted over objection and no trial amendment was requested.

Oldfield v. Angeles Brewing & Malting Co., 72 Wash. 168, 171, 129 P. 1098. It is true that we have often held that, where certain matters are treated as in issue at the trial, the theory upon which the trial proceeded cannot be rejected for the first time in the appellate court. See Haas v. Washington Water Power Co., 160 P. 954, and cases there cited. But that rule only applies where it may be fairly said that the trial theory was acquiesced in by the party complaining. The contrary appears in the case before us.

It does not follow, however, that the admission of the evidence complained of was prejudicial. Its only possible effect was to augment the damages. So far as the record shows, no claim of excessive verdict was made in the lower court. The motion for a new trial was based upon all of the statutory grounds save the fifth and the sixth, which alone refer to excessive recovery. We must assume that this ground was omitted from the motion advisedly. The claim that the damages are excessive cannot be raised for the first time in this court. Moreover, even in this court, though in the brief it is asserted that the verdict is excessive, none of the assignments of error are based upon that specific ground.

2. Respondent and her mother were permitted to testify, over objection, to a conversation had by them with appellant in which they charged him with the paternity of the child and demanded a settlement, at which time they stated, in substance, that he refused to settle, but did not deny the paternity of the child. It is urged that this impinged the rule against the admission of evidence touching an offer to compromise. We think not. Appellant made no offer to settle nor did he seek an interview for that purpose. Neither of the witnesses so testified. The record shows that the evidence was offered solely for the purpose of showing that when charged with the paternity of the child appellant did not deny it. It was clearly admissible for that purpose. Ewing v. Bass, 149 Ind. 1, 48 N.E. 241; Rose v. Rose, ...