Ferguson v. Moore

CourtSupreme Court of Tennessee
Writing for the CourtWilkes
Citation39 S.W. 341
PartiesFERGUSON v. MOORE.
Decision Date06 February 1897
39 S.W. 341
FERGUSON
v.
MOORE.
Supreme Court of Tennessee.
February 6, 1897.

Appeal from circuit court, Lincoln county; Dan Williams, Special Judge.

Action by Sue Kate Ferguson against R. A. Moore for breach of promise of marriage and seduction. Judgment for plaintiff, and defendant appeals. Reversed.

Holman & Carter, for appellant. Jo. G. Carrigan, Bright & Woodard, and Higgins & Son, for appellee.

WILKES, J.


This is an action for damages. The declaration has two counts, — one for breach of contract to marry, and the second for seduction accomplished by reason of such contract. The cause was heard before a court and a jury of Lincoln county, and a verdict for $2,000 was rendered upon the first count, and of $12,700 upon the second, and for the aggregate sum of $14,700 judgment was rendered for plaintiff, and defendant has appealed, and assigned errors.

It is assigned as error, first, that the court permitted plaintiff, over the defendant's objection, to prove that she was a member of the church, and had been for nine years. In this there was no error. It was a circumstance bearing upon the standing and reputation of plaintiff, and entirely competent.

Plaintiff was asked if she was not furnished with a written statement by her attorney, to memorize, in regard to what she would swear about an abortion and the birth of a child at Chattanooga. The court sustained an objection to the question. In this we think there was no error. It was not a proper question to ask. She had already testified that no one wrote out a statement for her to memorize or swear to, and she had seen no such statement.

Plaintiff was asked if she did not tell defendant that she intended to kill the child, and that he told her not to do so. This was objected to by plaintiff, and objection sustained, and this is assigned as error. This was not material to the issues involved. Moreover, the question was answered in the negative. This is not error.

Dr. Hall was asked if a child prematurely born would cry. The question was objected to, and objection sustained, and this is assigned as error. The question is asked in the most general way, without specifying the age of the child. It does not appear what the answer would have been, and it is evident that no intelligent answer could have been given to such question asked in such general way.

It is objected that the court erred in saying to the jury that, in order to constitute seduction, it was not indispensable that the man use seductive arts or promises, but any act or promise or deception of the man, by which he overcomes the scruples of the woman, and induces her to have unlawful sexual intercourse with him, would constitute the offense. In immediate connection with this portion of the charge complained of the court added: "But if the woman, without being deceived, and without any false promises, deception, or artifice, voluntarily submits to the connection, the law affords her no remedy, and she cannot recover." It will be borne in mind that the seduction was charged to have been accomplished under promises of marriage. This, taken together, is not erroneous, and is a plain, simple statement of the law that any jury could understand and not misconstrue.

The trial judge said to the jury: "You are the exclusive judges of the facts of the case, and

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you are the judges of the law as delivered to you by the court." This is an unhappy expression, and the jury may have been misled into believing that in some way and to some extent they were judges of the law. Evidently the court intended to say that the jury must take the law as given by the court. The jury may, however, have put a different construction upon it. In a civil case the jury are in no sense the judges of the law, but they take it as given by the court.

It is assigned that the circuit judge was in error in charging that seduction was a continuous act, and if, by several and continuous acts, promises, and artifices, the defendant kept up his illicit intercourse until...

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42 practice notes
  • Kralick v. Shuttleworth, 5421
    • United States
    • Idaho Supreme Court
    • June 4, 1930
    ...acts of intercourse are only a part of the one seduction. (Gunder v. Tibbits, 153 Ind. 591, 55 N.E. 762; Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341; Davis v. Young, 90 Tenn. 303, 16 S.W. 473; 35 Cyc. 1308; Heggie v. Hayes, 141 Tenn. 219, 3 A. L. R. 150, 208 S.W. 605.) Only one action may ......
  • Gunder v. Tibbitts
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1899
    ...more sure he is of going unwhipped of justice. Franklin v. McCorkle, 16 Lea, 609, is overruled.” And in Ferguson v. Moore, 98 Tenn. 342, 39 S. W. 341, the same rule was applied in an action by a girl for her own seduction. In People v. Millspaugh, 11 Mich. 277, and Norton v. State, 72 Miss.......
  • Skidmore v. Baltimore & OR Co., No. 168
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 15, 1948
    ...series, Hays, Tactics in Cross-Examination (1946) 18ff. Cf. Bodin, Pleading and Practice (1946) 50-51. 19 Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341, 343. The court also said: "Perhaps no two counsel observe the same rules in presenting their cases to the jury. Some deal wholly in logic, ......
  • Rivera v. State
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • March 31, 1969
    ...575, 18 S.W. 248; King v. State, 91 Tenn. 617, 20 S.W. 169; Morgan v. Duffy, 94 Tenn. 686, 30 S.W. 735; Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341.' Sherman v. State, 125 Tenn. 19, 47, 140 S.W. 209, 219." The defendant's final Assignment of Error is that the trial court erred in not excus......
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39 cases
  • Kralick v. Shuttleworth, 5421
    • United States
    • Idaho Supreme Court
    • June 4, 1930
    ...acts of intercourse are only a part of the one seduction. (Gunder v. Tibbits, 153 Ind. 591, 55 N.E. 762; Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341; Davis v. Young, 90 Tenn. 303, 16 S.W. 473; 35 Cyc. 1308; Heggie v. Hayes, 141 Tenn. 219, 3 A. L. R. 150, 208 S.W. 605.) Only one action may ......
  • Gunder v. Tibbitts
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1899
    ...more sure he is of going unwhipped of justice. Franklin v. McCorkle, 16 Lea, 609, is overruled.” And in Ferguson v. Moore, 98 Tenn. 342, 39 S. W. 341, the same rule was applied in an action by a girl for her own seduction. In People v. Millspaugh, 11 Mich. 277, and Norton v. State, 72 Miss.......
  • Skidmore v. Baltimore & OR Co., No. 168
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 15, 1948
    ...series, Hays, Tactics in Cross-Examination (1946) 18ff. Cf. Bodin, Pleading and Practice (1946) 50-51. 19 Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341, 343. The court also said: "Perhaps no two counsel observe the same rules in presenting their cases to the jury. Some deal wholly in logic, ......
  • Benco Plastics, Inc. v. Westinghouse Electric Corp., Civ. A. No. 8317 and 8457.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • July 19, 1974
    ...relationships Tennessee Eastman v. Newman, 22 Tenn.App. 270, 121 S.W.2d 130 (1938) (employer-employee); Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341 (1897) 19 See, e. g., Handler v. Remington Arms Co., 144 Conn. 316, 130 A.2d 793 (1957). Likewise, plaintiff's similar theory of a continuing ......
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