Ireland v. Emmerson

• Decision Date: 22 January 1884
• Docket Number: 11,183
• Parties: Ireland v. Emmerson
• Court: Indiana Supreme Court

93 Ind. 1

Ireland v. Emmerson

No. 11,183

Supreme Court of Indiana

January 22, 1884

From the Gibson Circuit Court.

The judgment is affirmed, with costs.

C. A Buskirk, W. M. Land and J. B. Gamble, for appellant.

J. E McCullough and M. W. Fields, for appellee.

OPINION

Howk C. J.

This was a suit by the appellee, Ida Emmerson, against the appellant, Levi F. Ireland, to recover damages for the defendant's breach of an alleged contract of marriage. The cause was pet at issue and tried by a jury, and a verdict was returned for the appellee assessing her damages in the sum of $ 975. Over the appellant's motions for a new trial, and in arrest of judgment, the court rendered judgment against him, in appellee's favor, for the damages assessed and the costs of suit.

The first error, of which the appellant's counsel complain in argument, is the decision of the trial court in sustaining appellee's demurrer to the second paragraph of appellant's answer. This second paragraph of answer set up a former adjudication, as alleged, of the appellee's cause of action in this suit, in an action previously brought by her to recover damages for her alleged seduction by the appellant. In her complaint in the seduction case, the appellee averred, among other things, that by his visits, attentions and expressions of love, and "by promising to marry her," the appellant gained her confidence and affection, and importuned her to sexual intercourse with him, and that she, through her confidence in and love for him, "and relying upon his said promise of marriage with her," yielded to his solicitations and had illicit carnal intercourse with him, etc. After setting out the complaint in the seduction case, in the second paragraph of his answer in this case, the appellant alleged that he filed his answer to such complaint in general denial thereof, that the issues thus joined were submitted to a jury for trial, and a verdict was returned for the appellant, the defendant in such suit, and that thereupon final judgment was rendered in his favor by the court below. Appellant further averred in the second paragraph of his answer, that the promises of marriage stated by appellee, in her complaint in this suit, were the same and no other, as the promises of marriage set forth in her complaint in such seduction suit; and that the evidence, produced upon the trial of such seduction suit, related to the same promises of marriage set forth in appellee's complaint in this suit. Wherefore, etc.

Appellant's counsel earnestly insist that the adjudication in the seduction case was a complete and final bar to the cause of action, stated in appellee's complaint, in the case now before us. We are clearly of the opinion, however, that this position of counsel can not be maintained, either upon reason or upon authority. If, upon the trial of the seduction case, the appellant's promises of marriage and his breach of such promises had been established beyond all doubt by clear and uncontradicted evidence, yet, if, from any cause, the evidence failed to show that the appellee had been seduced, as alleged, by the appellant, it is certain that she could not, as she did not, recover damages in such seduction case for the established breach of appellant's promises to marry her. The reasons for this are obvious. In her complaint in the seduction case, the appellee did not seek to recover damages for the appellant's breach of his contract to marry her. Indeed, she did not aver, in her complaint for seduction, that the appellant had committed any breach of his promises to marry her. All that was said by appellee in her complaint, in the seduction case, in relation to the appellant's promises to marry her, was manifestly said solely for the purpose of explaining the means by which he had accomplished her seduction, and not as constituting a material part of the cause of action stated in such complaint. A promise of marriage is one of the means often resorted to by the seducer to accomplish his purposes; but such promise is, by no means, a necessary element in seduction. That is, seduction may be accomplished without any promise of marriage. Johnson v. Holliday, 79 Ind. 151; Haymond v. Saucer, 84 Ind. 3; Wilson v. Shepler, 86 Ind. 275.

In Bell v. Rinker, 29 Ind. 267, it was held that "If an unmarried man, having by his visits and attentions to an unmarried female, gained her affections and confidence, importunes her to sexual intercourse with him, and she, through her confidence in him and love for him, yields to his solicitations, it is seduction." This statement of the law, in such a case, was quoted with approval in the later case of Smith v. Yaryan, 69 Ind. 445 (35 Am. R. 232). See, also, Rees v. Cupp, 59 Ind. 566. It has never been held by this court, so far as we are advised, that an averment, that the seduction was accomplished under a promise of marriage, is a necessary averment in a complaint for seduction. The averment is often made in such cases; but it will be found, on examination, that it is generally made as matter of inducement, explanation or aggravation. It is not the averment of a material or necessary fact in an action for seduction; and, therefore, the verdict of a jury, either for or against the plaintiff therein, and the judgment of the court thereon, will not bar or conclude such plaintiff from instituting and maintaining an action for the recovery of damages for an alleged breach of a contract of marriage. Our conclusion is that the court did not err in sustaining appellee's demurrer to the second paragraph of the appellant's answer.

In the appellant's motion for a new trial, the first cause therefor is thus assigned: "The court erred in excluding from the jury the evidence of Vina White, offered by the defendant." It is insisted by appellee's c...