Jensen v. Lawrence

• Decision Date: 29 December 1916
• Docket Number: 13643.
• Citation: 162 P. 40,94 Wash. 148
• Parties: JENSEN v. LAWRENCE.
• Court: Washington Supreme Court

162 P. 40

94 Wash. 148

JENSEN v. LAWRENCE.

No. 13643.

Supreme Court of Washington

December 29, 1916

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by Anne Jensen against Alfred Lawrence. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Farrell, Kane & Stratton, of Seattle, for appellant.

John H Perry, of Seattle, for respondent.

HOLCOMB J.

This action is one to recover damages resulting from an alleged assault and act of carnal intercourse committed by defendant upon plaintiff in Seattle. The complaint, in substance alleges: That from the 23d day of May, 1914, to the 6th day of June, 1914, plaintiff was the regularly employed housekeeper for defendant; that while engaged in her duties as such, on the 1st day of June, 1914, defendant wrongfully, unlawfully, and violently assaulted her, threw her on the bed, physically overpowered her, and forcibly committed an act of carnal intercourse upon her, despite her vehement protests and earnest supplications not to do so, and causing plaintiff pain, suffering, humiliation, and damage in the sum of $10,000. The answer denies each and every allegation contained in the complaint, and affirmatively alleges that such allegations are false and malicious, and made with the sole purpose of extorting money from defendant. No reply was filed, and, the issues being made, the case was tried before a jury. At the conclusion of all the testimony, defendant moved the court for a directed verdict, based upon the insufficiency of the evidence, which motion was denied. The jury returned a verdict for plaintiff for $5,000. Thereafter defendant moved the court both for judgment non obstante veredicto and, in event of the denial of said motion, for a new trial, which motions were denied.

Considerable argument is first devoted by counsel to the want of corroboration of the testimony of plaintiff as grounds for reversal and a new trial. Corroboration, since the statute requiring same was repealed by the act of 1913 (page 298, § 1), is no longer required, even in criminal prosecutions for carnal crimes, and therefore, in the absence of a specific statute so requiring in civil cases, is not a rule of evidence here. Consequently, assuming that no facts or circumstances were adduced in corroboration of plaintiff's evidence as to the alleged assault, she testified fully respecting it, and her evidence fully supported the allegations of her complaint if believed by the jury, and the verdict of the jury, if uninfluenced by any taint in law, is conclusive upon that fact.

The argument that, 'where the evidence in such case as the one at bar is improbable, contradictory, and opposed to every instinct of human nature, it is the duty of this court to grant a new trial' is incorrect. In the first place, the jury passed upon the 'contradictory' and 'improbable facts,' and are presumed to be equally capable, or even more capable than the court, of passing upon facts of such character, even to judge whether such facts are 'opposed to every instinct of human nature.' In the second place, the trial judge also passed upon those facts in passing upon the motion for new trial, exercising his judicial discretion therein, and permitted the facts produced by the plaintiff to sustain the verdict in her favor. In such case it has long been the settled rule in our state that this court cannot interfere, in the absence of such error as actually or presumptively prevented a fair trial to the losing party. Bucklin v. Miller, 13 Wash. 152, 40 P. 732; Miller v. Bean, 13 Wash. 516, 43 P. 636; Hindle v. Holcomb, 34 Wash. 336, 75 P. 873; Leghorn v. Review Pub. Co., 31 Wash. 627, 72 P. 485; In re Renton, 61 Wash. 330, 112 P. 348; Snider v. Wash. Water Power Co., 66 Wash. 598, 120 P. 88; Mattson v. Eureka Cedar Lumber, etc., Co., 79 Wash. 266, 140 P. 377; Brown v. Walla Walla, 76 Wash. 670, 136 P. 1166.

A further argument upon the facts is made by appellant that the plaintiff, according to her own evidence, made no outcry at the time of the alleged assault, nor any complaint immediately afterwards, and it is therefore asserted that her testimony as to an assault and rape is improbable, incredible, and unworthy of belief. She testified that she resisted, and that she struck appellant as fast as she could; that she never gave her consent; that appellant overcame her by his superior force, and had intercourse with her against her consent. Similar arguments were advanced in the criminal case of State v. Pilegge, 61 Wash. 264, 112 P. 263, and were there disapproved. 'Did the defendant use force?' 'Did the woman persistently refuse her consent?' 'Did the accused accomplish the sexual intercourse?' These questions being answered affirmatively, the offense would be rape. State v. Sudduth, 52 S.C. 488, 30 S.E. 408.

The other propositions go to the questions of the probabilities and credibility of the story of the plaintiff. They are questions of fact purely, and for the jury. Upon these features the trial court instructed:

'You are instructed that if at the time of the alleged assault, or within a reasonable time thereafter, the plaintiff did not make an outcry, and that she did not do so as soon thereafter as opportunity offered itself, unless she was prevented from making such outcry by fear and threats, plaintiff would not be entitled to recover; and, if the plaintiff failed to disclose the alleged outrage said to have been committed, within a reasonable time after she had opportunity to do so, that would be a circumstance which you may consider as tending

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