Ellig v. Powell

• Court: Nebraska Supreme Court
• Writing for the Court: CHASE, District Judge.
• Citation: Ellig v. Powell, 122 Neb. 270, 240 N.W. 271 (Neb. 1932)
• Decision Date: 08 January 1932
• Docket Number: 28017
• Parties: ANNA ELLIG, APPELLEE, v. THOMAS POWELL, APPELLANT

240 N.W. 271

122 Neb. 270

ANNA ELLIG, APPELLEE, v. THOMAS POWELL, APPELLANT

No. 28017

Supreme Court of Nebraska

January 8, 1932

APPEAL from the district court for Otoe county: JAMES T. BEGLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Evidence examined and found generally sufficient to support the verdict.

2. In a civil action to recover damages, based upon facts sufficient to constitute the crime of rape, the question of whether or not the plaintiff resisted the advances of the defendant, to the extent of her physical ability is for the jury to determine.

3. In a civil action to recover damages based upon facts constituting forcible ravishment of a female, no corroboration of the female's testimony is necessary; a mere preponderance of the evidence is sufficient to support a verdict.

4. The verdict of $1,250 held not to be excessive.

Appeal from District Court, Otoe County; Begley, Judge.

Action by Anna Ellig against Thomas Powell. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Bartos, Bartos & Placek, for appellant.

John E. Lowe, contra.

Heard before GOSS, C. J., DEAN and EBERLY, JJ., and CHASE and HASTINGS, District Judges.

OPINION

CHASE, District Judge.

This is a civil action brought by Anna Ellig as plaintiff, against Thomas Powell, as defendant, to recover damages for an alleged assault and battery.

The facts upon which she relies for recovery, if it were a criminal prosecution, would amount to the crime of rape. The case was tried to a jury, resulting in a verdict of $ 1,250 for the plaintiff, whereupon the defendant filed a motion for a new trial, which was overruled by the trial court, and judgment on the verdict rendered. From the action of the trial court in overruling the motion for a new trial and entering judgment on the verdict, the defendant has appealed to this court. For the purpose of convenience the parties will be termed plaintiff and defendant as they were in the court below.

Several grounds for reversal are urged by the defendant. One is that the judgment is not supported by the evidence. It would serve no good purpose to detail at length this salacious story. We have carefully read the record, unsavory as it is, and reach the conclusion that from all the facts and circumstances disclosed thereby the evidence is amply sufficient to support the verdict as to this complaint of the defendant.

Another assignment of error is that the proof of resistance on the part of the plaintiff, required in cases of this character, was not sufficient to support a recovery.

The plaintiff testifies that on and prior to this episode she was living on a farm with her parents in Johnson county; that she and the defendant, together with another young couple, had been attending a charivari at a place some miles distant from her home; that these four persons rode in a Ford coupe, the other couple in the front seat, and plaintiff and defendant in the rumble seat; that on the night in question, on their return to a point near the plaintiff's home, they passed an orchard, and some one of the party suggested that they get out of the automobile in which they were riding and go into the orchard in search of apples. This they did, the plaintiff and defendant, after entering the orchard, going in one direction and the other couple in another; that while the plaintiff and defendant were in the orchard, in the absence of the other couple, the plaintiff testifies that the defendant purposely tripped her, causing her to fall upon the ground, and while in that position he forcibly ravished her. The plaintiff detailed numerous acts in attempt to prevent the assault, from which the jury could rightly conclude that she resisted the aggression of the defendant.

The defendant, in his testimony, denied ever having been at the orchard at all on that occasion, and also denied that he committed any assault upon the plaintiff whatever. The other two persons in company with them both testify that they never stopped at the orchard, as detailed by the plaintiff.

The defendant in his brief contends that the record does not...