OPINION
Baker, J.
Action
by Dora Troxell against appellants for damages. Complaint in
two paragraphs. Motion by each appellant to make the
complaint more specific, motion by each appellant to require
plaintiff to state her causes of action in separate
paragraphs and number them, and separate demurrers for want
of facts and for misjoinder of causes of action, by each
appellant to each paragraph of complaint, were overruled.
Appellants separately filed answers of general denial and of
the two years statute of limitations. Reply in
denial. Motion by appellants for continuance overruled.
Request by appellants for special verdict. Trial, and special
verdict. Motion by each of the parties for judgment on the
special verdict. Appellants' motion overruled. Separate
motions for new trial by each appellant overruled. Judgment
on special verdict in favor of plaintiff. Separate exceptions
were reserved by each appellant to each adverse ruling. All
motions, instructions and the evidence are properly
incorporated in bills of exceptions, which are properly in
the record. Plaintiff died after judgment was rendered and
before this appeal was perfected. The appeal is prosecuted
against the administrator of plaintiff's estate. The
death of the administrator since the submission of the cause
is suggested, and the request is made that judgment be
rendered as of the date of submission. Appellants separately
assign errors on the various adverse rulings above mentioned.
The
special verdict follows the second paragraph of complaint.
The rulings on the motions and demurrers addressed to the
first paragraph may therefore be passed by; for, even if they
were found on examination to be erroneous, they were
harmless. Lime City, etc., Assn., v. Black,
136 Ind. 544, 35 N.E. 829; Tewksberry v.
Howard, 138 Ind. 103; Woodward v.
Mitchell, 140 Ind. 406, 39 N.E. 437; Marvin
v. Sager, 145 Ind. 261, 44 N.E. 310; Laughery
Turnpike Co. v. McCreary, 147 Ind. 526, 46 N.E.
906; Louisville, etc., R. Co. v. Schmidt,
147 Ind. 638, 46 N.E. 344; Smith v. Wells Mfg.
Co., 148 Ind. 333, 46 N.E. 1000; Illinois, etc., R.
Co. v. Cheek, 152 Ind. 663, 53 N.E. 641.
The
second paragraph alleges "that plaintiff now is and
always has been an unmarried female; that she arrived at the
age of twenty-one years on the 17th day of March, 1896; that
on or about the 1st day of March, 1892, the defendant Gunder
was, and now is, a merchant of the city of Marion, State of
Indiana; that at said time plaintiff was an orphan, with
neither father nor mother, and obliged to and did earn her
own living by honest and honorable labor as a servant in different families in said city; that up to that
time she was virtuous and of an unspotted character, and had
a good name and reputation for virtue and chastity; that at
that time the defendant Gunder was a man of mature age,
married, of wealth and high social position; that, intending
to wrong, injure, debauch, and seduce this plaintiff, who was
then and there of the age only of seventeen years, he then
and there took advantage of her youth and inexperience, and
of her position in the world as being unprotected and
unguarded by any friend or relatives, and of his experience
and position, and by his artifices and persuasions, and by
his representations to her then made that it would not injure
or damage her in any way, did seduce and debauch her, and
induced her to have sexual intercourse with him, to wit, on
or about the first day of March, 1892; that he obtained such
complete control over the plaintiff, by means of his
artifices and persuasions, that he continued to debauch her
and to have sexual intercourse with her at various times from
said 1st day of March, 1892, to about the month of February,
1895; that by reason of such seduction and carnal knowledge
and sexual intercourse with said defendant, plaintiff became
sick with child at two different times, the first time on or
about the 1st day of March, 1893, and the second time on or
about the 1st day of March, 1895; that at both times the
plaintiff suffered great pain and distress, and was unable to
take care of herself, and became very weak and helpless in
body and mind, and completely under the control of the
defendant; that at both said times, when the plaintiff had
become pregnant as aforesaid, and while in said weak and
distressed and helpless condition, and while she was thus
under the control of defendant, all resulting from said
seduction and sexual intercourse with him, he communicated
the fact of such seduction and of his unlawful acts towards
this plaintiff and of her pregnant condition to his
codefendant Thomas C. Kimball; that on each of such occasions
the defendants conspired and agreed together, in order to
avoid publicity of the action of the defendant Gunder, that they would advise and persuade plaintiff to
submit to an abortion, in order to prevent childbirth and the
consequent exposure of the defendant Gunder; that, pursuant
to such agreement and conspiracy, the defendants came to the
plaintiff at divers times, when she was thus weak and
helpless, and advised and persuaded her, by their words and
representations made to her, at both said times when she was
thus pregnant, that she was physically unable to give birth
to her child, and that she would surely die during the
progress of natural childbirth, and that it was absolutely
necessary to have an abortion produced on her in order to
save her life; that both of said defendants, at each of such
times when plaintiff was pregnant, made such representations
to her, not for the purpose of saving her life, but solely
for the purpose of inducing her to submit to an abortion in
order to conceal all evidence of defendant's wrong to
plaintiff; that said defendant Kimball, as both of the
defendants and plaintiff well knew, was then and there a
physician of great skill, knowledge, and reputation as a
physician, and possessed the complete confidence of this
plaintiff; that for this reason the plaintiff believed his
words to be true, and relied upon the statements of both the
defendants that it was necessary for these abortions to be
performed in order to save her life, and by reason of such
representations, and by reason of her youth and inexperience,
and by reason of her confidence in both the defendants, she
became and was afraid, at both of said times when she was
thus pregnant, that she would die unless she would allow the
defendants to produce such abortions upon her; that thus by
words and persuasions and representations of inevitable death
to come upon her, and by reason of her youth and inexperience
and fear of death, the defendants persuaded and forced this
plaintiff to submit to two separate and distinct abortions
which they produced upon her by giving her medicines and by
unlawfully using instruments on and in her person;
that the first of said abortions was produced about the first
day of March, 1893; and the second about the
first day of March, 1895; that at neither of said times was
such abortion necessary for the physical safety of this
plaintiff; that at each of said times defendants were both
aware of the seduction of the plaintiff by defendant Gunder,
and that she was pregnant with child by him, by reason of the
aforesaid sexual intercourse had by him with her, and that
the sole object of the defendants in persuading the plaintiff
to submit to each of such abortions was for the purpose of
concealing evidence of the wrong practiced by the defendant
Gunder upon the plaintiff and not through any concern for
plaintiff's physical welfare; that in consequence of such
seduction and carnal intercourse, and by reason of said
several abortions, plaintiff suffered greatly in her health,
became distressed in her mind, and became so sick for many
months that she suffered great pain and mental agony and was
prevented from her work and from transacting her necessary
business affairs; that because of such seduction and
abortions plaintiff has been greatly injured in her
reputation and good name, has been greatly injured and
disturbed in her peace of mind, her health has been injured
and ruined for life, and she has become unable to earn a
living, has incurred large and continuous indebtedness for
medical treatment and board bills, has been rendered unable
to earn her living, all of which are the direct results of
the acts of the defendants, as aforesaid. Plaintiff further
alleges that the defendant Kimball, in all that he did as
alleged hereinbefore, conspired and agreed with his
codefendant Gunder, with full knowledge of the acts of the
latter, and with knowledge that the defendant Gunder had
seduced, debauched, and made pregnant the plaintiff, to aid
defendant Gunder in concealing evidence of the guilt of the
latter by producing such abortions; that all of said wrongful
acts occurred in the State of Indiana."
It is
claimed that the court should have sustained the motion to
require the plaintiff to make her complaint more specific by
stating the facts that constituted the "artifice and
persuasion" employed by Gunder.
Appellants refer to the cases of Rees v
Cupp, 59 Ind. 566; Hart v. Walker,
77 Ind. 331; McIlvain v. Emery, 88 Ind.
298; Hodges v. Bales, 102 Ind. 494, 1 N.E.
692; McCoy v. Trucks, 121 Ind. 292, 23 N.E.
93; Shewalter v. Bergman, 123 Ind. 155, 23
N.E. 686. None of these cases states what degree of
particularity is required in alleging the means used to
overcome the plaintiff's chastity. In nearly all of them,
no motion to...