Hardin v. Davis

• Decision Date: 22 February 1922
• Docket Number: 585.
• Citation: 110 S.E. 602,183 N.C. 46
• Parties: HARDIN v. DAVIS.
• Court: North Carolina Supreme Court

110 S.E. 602

183 N.C. 46

HARDIN v. DAVIS.

No. 585.

Supreme Court of North Carolina

February 22, 1922

Appeal from Superior Court, Cherokee County; Webb, Judge.

Action by Annie C. Hardin against F. L. Davis. Judgment for defendant, and plaintiff appeals. New trial.

The evidence of the plaintiff tended to show that the defendant then a man 26 years of age, began to show plaintiff attentions and keep company with her in the year 1913, when the plaintiff was a mere child not yet 15 years old. These attentions were kept up by the defendant continuously until the year 1916, when the defendant seduced the plaintiff and procured her to have sexual intercourse with him, which acts of intercourse were kept up from time to time and as a result of which the plaintiff gave birth to a child. Plaintiff testified that she had never had intercourse with any one except the defendant. This was all denied by the defendant.

There was further evidence on behalf of the defendant tending to show that the plaintiff was a woman of bad character and of lewd and lascivious habits.

From a verdict and judgment in favor of the defendant, plaintiff appealed assigning error.

J. D Malonee and J. N. Moody, both of Murphy, for appellant.

Martin Rollins & Wright, of Asheville, and M. W. Bell, of Murphy for appellee.

STACY J.

This was a civil action to recover damages for an alleged wrongful, but not necessarily criminal, seduction. His honor charged the jury that, before the plaintiff could recover, it would be necessary for her to show that the acts complained of were brought about and procured under a promise of marriage. In this we think there was error. While a promise of marriage is quite often one of the means employed by the seducer to accomplish his purpose, and necessary to be shown on a criminal indictment (C. S. § 4339; State v. Cline, 170 N.C. 751, 87 S.E. 106), yet such a promise is not one of the essential elements in a civil action for damages (Ireland v. Emmerson, 93 Ind. 1, 47 Am. Rep. 364; Bradshaw v. Jones, 103 Tenn. 331, 52 S.W. 1072, 76 Am. St. Rep. 655; Hood v. Sudderth, 111 N.C. 215, 16 S.E. 397). Intercourse induced by deception, enticement, or other artifice will suffice; for of such is the essence of the injury. 24 R. C. L. 734; 35 Cyc. 1309. But the mere proof of intercourse, and no more, is not sufficient to warrant a recovery. Volenti non fit injuria. Patterson v. Hayden, 17 Or. 238, 21 P. 129, 3 L. R. A. 529, 11 Am. St. Rep. 822.

There was a further charge to the effect that the plaintiff must have been an innocent and virtuous woman at the time of the seduction. The instruction with respect to her present virtue and chastity, we apprehend, was correct (Greenman v O'Riley, 144 Mich. 534, 108 N.W. 421, 115 Am. St. Rep. 466); but the requirement of innocence in the sense of absolute freedom from intercourse at any time prior thereto ( State v. Ferguson, 107 N.C. 841, 12 S.E. 574), was more than the law imposes in an action of this kind. A woman may become unchaste and then reform and thereafter "tread the straight and narrow path" and lead an upright life. She thereupon regains her...