Kesselring v. Hummer
| Decision Date | 09 March 1906 |
| Citation | 106 N.W. 501,130 Iowa 145 |
| Parties | FRANCIS E. KESSELRING, Appellant, v. ALBERT HUMMER |
| Court | Iowa Supreme Court |
Appeal from Iowa District Court.-- HON. O. A. BYINGTON, Judge.
ACTION for damages occasioned by seduction. Judgment for defendant from which the plaintiff appeals.-- Reversed.
Reversed.
Ranck & Bradley, J. B. Murphy, and J. G. Marner, for appellant.
J. M Dower and Holbert & Holbert, for appellee.
The plaintiff alleged that defendant seduced her on the 12th day of April, 1903, and that, as a result, she was delivered of a child January 14, 1904. The evidence shows, without controversy, that he had met her with increasing frequency since May, 1901, and that they were together in the evening of the day first mentioned, but he denied ever having had intercourse with her. The errors assigned relate to rulings on the admissibility of evidence and the instructions to the jury. These will be disposed of in the order argued.
I. The plaintiff was employed as a domestic by Wm. Rutherford for three weeks during the latter part of May and fore part of June, 1903. On cross-examination she was asked whether on different occasions during that time she had not indulged in sexual intercourse with Walter Sterchi another employe. The objection to this as incompetent and too remote was overruled. Plaintiff alleged the birth of a child in aggravation of damages. She had testified that it was conceived of defendant April 12th. The theory of the defendant was that this child was begotten by Sterchi and, as bearing on this phase of the case, the ruling was correct. State v. Swafford, 98 Iowa 362, 67 N.W. 284. The time was more remote than in the cited case but several physicians were of the opinion that the period of gestation varies from 225 to 330 days and if so the cross-examination was within the rule of that decision.
II. Defendant had visited the plaintiff at the home of Wm. Brogley often, and the latter, after testifying to seeing them together frequently, was asked how they acted toward each other and answered: "They acted like lovers." The answer was stricken on motion as incompetent. The ruling was correct. Some difficulty may be experienced in accurately describing the phenomenon mentioned, but the manifestation is seldom the same between different persons, and what might appear to one as the action of a lover would seem but the indication of friendship to another. The safer rule is to permit proof of acts and conversations and leave the deductions to be drawn therefrom to the jury. The answer, as it must have been deduced from many circumstances, was not within the rule permitting a witness to state a conclusion when the matter to which his testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time. See Yahn v. City of Ottumwa, 60 Iowa 429, 15 N.W. 257; Bizer v. Bizer, 110 Iowa 248, 81 N.W. 465, and like decisions.
III. The plaintiff testified that the intercourse with defendant occurred in a buggy. One of the physicians, after explaining that the probability was against conception resulting from intercourse with a virgin, was asked:
Q. Suppose that in any given case, where the woman is of average height and build, will say from one hundred to one hundred and sixty pounds, and the man is fully developed, a husky boy weighing from one hundred and sixty-five to one hundred and eighty pounds, and of usual height, and under circumstances like that where the act of intercourse took place in a top buggy and the top was up, and this was the first intercourse, what would you say as to the probability or improbability of conception following such act of intercourse?
Over objection that this was not the subject of expert testimony, he was permitted to answer: "I think it is very unlikely." The ruling was erroneous. The inquiry related to nothing connected with medical science, save what had already been detailed and the witness had not disclosed special knowledge with respect to like situations. The matter was not the subject of expert testimony. State v. Peterson, 110 Iowa 647, 82 N.W. 329. A like objection was lodged against a question as to whether pregnancy would be likely to result from the first intercourse of a woman. It was properly overruled.
IV. One Addy, after telling of his somewhat intimate acquaintance with Walter Sterchi, was asked whether he had a conversation with him in the latter part of June or in July concerning his relations with plaintiff, and over objection, was permitted to answer that he had and to relate that Sterchi had told him "that he was in trouble, I asked him what his trouble was, and he said that he was really ashamed to tell me, that he had always gone in our society, the best society, and I asked him to state what his trouble was, and he said that he had been monkeying with Frances Kesselring, and that he had got her in a fix, and that something had to be done; he said he had consulted or obtained good medical advice, and I asked him about marrying the girl, and he said if she was a decent girl he would marry her, and he said that there were other men knew they had been monkeying with her, and he talked as if he might commit an abortion if necessary, and I told him not to, but I advised him to pack his clothes and make his get-away, for they had a clear case against him if what he said was true."
Sterchi had not been called as a witness and we are at a loss to understand upon what theory the evidence was received. Appellee suggested, in support of the ruling, that as Sterchi was subsequently called as a witness, this evidence, as well...
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