Gunder v. Tibbitts

Citation55 N.E. 762, 153 Ind. 591
Case DateDecember 14, 1899
CourtSupreme Court of Indiana

153 Ind. 591
55 N.E. 762

GUNDER et al.
v.
TIBBITTS.
*

Supreme Court of Indiana.

Dec. 14, 1899.


Appeal from circuit court, Wells county; E. C. Vaughn, Judge.

Action for seduction by Dora Troxell against George W. Gunder and another. From a judgment in favor of plaintiff, defendants appeal. On death of plaintiff, John C. Tibbitts, her administrator, was substituted. Affirmed.


Dailey, Simmons & Dailey, Brownlee & Cline, and H. J. Paulus, for appellants. Martin & Eichhorn, for appellee.

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 limitation. 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

[55 N.E. 763]

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. Association v. Black, 136 Ind. 544, 35 N. E. 829; Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355;Woodard v. Mitchell, 140 Ind. 406;39 N. E. 407;Marvin v. Sager, 145 Ind. 261, 44 N. E. 310;Turnpike Co. v. McCreary, 147 Ind. 526, 46 N. E. 906; Railroad Co. v. Schmidt, 147 Ind. 638, 46 N. E. 344;Smith v. Manufacturing Co., 148 Ind. 333, 46 N. E. 1000; Railroad 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 induce her to have sexual intercourse with him, to wit, on or about the 1st 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 the 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 co-defendant, 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;

[55 N.E. 764]

that the first of said abortions was produced about the 1st day of March, 1893, and the second about the 1st 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 co-defendant, 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 make...

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53 practice notes
  • Watts v. Chittenden, No. 18474.
    • United States
    • Supreme Court of Connecticut
    • 19 Julio 2011
    ...at any time until the expiration of the limitations period following the last act of tortious intercourse. See, e.g., Gunder v. Tibbits, 153 Ind. 591, 604–605, 55 N.E. 762 (1899); Breiner v. Nugent, 136 Iowa 322, 327–29, 111 N.W. 446 (1907); Russell v. Chambers, 31 Minn. 54, 54–55, 16 N.W. ......
  • Kralick v. Shuttleworth, 5421
    • United States
    • Idaho Supreme Court
    • 4 Junio 1930
    ...cannot be repeatedly seduced by the same defendant. Numerous 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 T......
  • Fowler v. Newsom , No. 21,373.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Diciembre 1909
    ...v. Goben, 142 Ind. 318, 319, 39 N. E. 506, and cases cited; Brinkman v. Pacholke, 41 Ind. App. 662, 668, 84 N. E. 762;Gunder v. Tibbits, 153 Ind. 591, 608, 55 N. E. 762 and cases cited. Substantially the same question was propounded to appellant Fowler while on the stand as a witness for ap......
  • Shenkenberger v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Mayo 1900
    ...offer was refused, and there was an exception by the appellant. In Deal v. State, 140 Ind. 354, 371, 39 N. E. 930, and Gunder v. Tibbitts, 153 Ind. 591, 607, 608, 55 N. E. 762, it was held that such procedure does not raise any question as to the admissibility of the proposed testimony. In ......
  • Request a trial to view additional results
53 cases
  • Watts v. Chittenden, No. 18474.
    • United States
    • Supreme Court of Connecticut
    • 19 Julio 2011
    ...at any time until the expiration of the limitations period following the last act of tortious intercourse. See, e.g., Gunder v. Tibbits, 153 Ind. 591, 604–605, 55 N.E. 762 (1899); Breiner v. Nugent, 136 Iowa 322, 327–29, 111 N.W. 446 (1907); Russell v. Chambers, 31 Minn. 54, 54–55, 16 N.W. ......
  • Kralick v. Shuttleworth, 5421
    • United States
    • Idaho Supreme Court
    • 4 Junio 1930
    ...cannot be repeatedly seduced by the same defendant. Numerous 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 T......
  • Fowler v. Newsom , No. 21,373.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Diciembre 1909
    ...v. Goben, 142 Ind. 318, 319, 39 N. E. 506, and cases cited; Brinkman v. Pacholke, 41 Ind. App. 662, 668, 84 N. E. 762;Gunder v. Tibbits, 153 Ind. 591, 608, 55 N. E. 762 and cases cited. Substantially the same question was propounded to appellant Fowler while on the stand as a witness for ap......
  • Shenkenberger v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Mayo 1900
    ...offer was refused, and there was an exception by the appellant. In Deal v. State, 140 Ind. 354, 371, 39 N. E. 930, and Gunder v. Tibbitts, 153 Ind. 591, 607, 608, 55 N. E. 762, it was held that such procedure does not raise any question as to the admissibility of the proposed testimony. In ......
  • Request a trial to view additional results

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