Lauer v. Banning
| Decision Date | 23 November 1908 |
| Parties | LOTTIE LAUER, Appellee, v. BEN BANNING, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
ACTION for breach of promise of marriage and for seduction. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.
Reversed.
Clark & Byers and Noland & Brackett, for appellant.
O. S Franklin and Mills & Perry, for appellee.
OPINION
Defendant is a farmer living upon a farm some seven miles west of the city of Des Moines. He is a widower about forty years of age and has one child, a daughter about fourteen years old. Plaintiff is a grass widow, having twice been married and as many times divorced. She claims in her petition and introduced evidence to show, that some time in the year 1903 defendant promised to marry her, and upon the strength of such promise she went to his house and lived and cohabited with him as if they were married, and that in the year 1906 defendant practically drove her from his house and refused to comply with his promise. All this is denied by defendant, although he admits that he employed plaintiff as his housekeeper, that she served him in that capacity, and no other, and that she has been fully compensated for her services as such. Many other defenses and pleas in mitigation were filed by defendant, to some of which we shall refer during the course of the opinion. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 2,000. To reverse this judgment defendant relies upon many assignments of error--so many that we shall not have room in the course of an ordinary opinion to notice all. Indeed, it is not important that we do so, for many of the propositions presented are so collateral to main points that they are not regarded as controlling, and, in view of the result reached, some need not be considered, as they are not likely to arise upon a retrial. We shall only notice such of these matters as are deemed controlling and such as are likely to be troublesome should the case be retried. The substance of plaintiff's testimony was that she first met defendant at a labor employment bureau in Des Moines in the year 1902, and engaged with him to do his housework at an agreed compensation. The terms of this agreement are somewhat in dispute, and it is not material that we settle this conflict. It is enough to know that she went to defendant's farm and undertook her duties as housekeeper, but for some reason did not remain longer than two weeks, when she returned to Des Moines and sought other work there. In the fall of the year after she first met him, defendant, according to her testimony, again sought her out in Des Moines, talked to her of marriage, promised to build a new house on his farm for her, and told her if she would return and do his housework he would pay her the same wages as during the previous year. She also testified that she then and there virtually accepted his promise of marriage, and that defendant then said he could not marry her at once because of some trouble he was having with a former housekeeper, and that he could not marry her until this trouble was settled. It is claimed that, pursuant to these promises and agreements of defendant, she (plaintiff) returned to defendant's farm and resumed her duties as his housekeeper. She also testified that, within a few days or weeks at most after her return to the farm, defendant by force and against her will, and notwithstanding all resistance on her part that she could offer, violated her person and accomplished her defilement, and that thereupon, at her urgent demand and request, defendant brought her back to Des Moines, where she stayed for a week or two, when defendant again sought her out and renewed his promises of marriage and to build a new house and induced her to return again to his home. She further claims that upon her return this third time she resumed her work as housekeeper, and also, because of her engagement of marriage, she immediately began living and cohabiting with the defendant as his wife "in everything but name." The testimony further shows that she time and again requested of defendant that he marry her, but that he as often put her off, until finally it was agreed, in 1904, that she should go to her mother's home in St. Louis, where he (defendant) would meet and marry her, and that she went to St. Louis as agreed, but that defendant never came. Plaintiff also testified that upon her return from St. Louis defendant again sought her, and under "the mirage of marriage" again induced her to go back to the farm and live with him, which she says she did until the early part of the year 1906, when defendant repudiated his engagement and drove plaintiff from the farm with a club. This action soon followed.
Defendant, as we have said, denied any promise of marriage, denied that he was guilty of any rape or seduction, pleaded that plaintiff was before the time it is claimed the promise of marriage was made lewd, vulgar and unchaste, that she used vulgar and profane language, that she had been and was then afflicted with a loathsome venereal disease, that she was sick from said disease, that its ravages had made her barren and sterile, and that during the time she claimed to have been engaged to defendant she had illicit intercourse with other men. He also pleaded that plaintiff during the time of the claimed engagement persistently tongue-lashed, scolded, cursed, and threatened him, circulated false reports regarding him, and that he could not live with her in the marriage state without great danger to his health and body. These matters were pleaded both in mitigation and as a complete defense, and testimony was adduced in support of most, if not all, of them. It will be observed plaintiff claims that a promise of marriage was made by defendant before she (plaintiff) returned to work for him a second time; that is, in the fall of the year 1903.
It is a little doubtful from the testimony as to whether or not plaintiff claims to have accepted defendant's proposal before returning to the farm or not, but for the purpose of discussing the first proposition we shall dismiss this as immaterial. The point is that, according to plaintiff's testimony, defendant, to induce her to return, proposed to marry her and to build a new house in which they should live after they were married. She says that this was the reason why she returned to the farm. She admitted, however, that defendant said he would not take her back to the farm unless she would sign a contract which would protect him from blackmail or slander; that he proposed to see a lawyer to find out if such a contract could legally be drawn; that, after seeing his lawyer and finding out that he thought such an instrument might be made, she went to the lawyer's office; and that a contract was drawn, which was then signed. This contract was offered by the defendant as a part of his case, but was rejected by the trial court. It reads in this wise:
This agreement, made and entered into this 9th day of September 1903, by and between Ben Banning and Lottie Lauer, witnesseth: That whereas the said Ben Banning is a single man engaged in farming in Polk County, Iowa, and whereas the said Ben Banning requires the service of a housekeeper for himself and his employes, and whereas the party of the second part is desirous of taking the said position of housekeeper and cook for the said Ben Banning, and whereas the said Lottie Lauer has theretofore worked for the said Ben Banning as house-keeper and cook, and whereas the said Ben Banning has in every respect deported himself toward the said Lottie Lauer in a legal and becoming manner, and whereas the said Ben Banning by reason of the circumstances under which he is placed, and requiring the need, assistance, and therefore the necessary presence of a woman in his house-hold, and realizing the danger of false, fictitious and manufactured charges that might be and often are made by women under such circumstances: Now, therefore, it is hereby agreed between the parties hereto that in consideration of the employment of the said Lottie Lauer by the said Ben Banning, and in consideration of the money to be paid to the said Lottie Lauer as wages, and in consideration of the home and attendant privileges granted to said Lottie Lauer by the said Ben Banning, it is hereby expressly agreed that the said Lottie Lauer hereby expressly waives all claims for civil damages growing out of any tort or legal action whatsoever, and the consideration mentioned herein from the said Ben Banning to the said Lottie Lauer is hereby accepted by the said Lottie Lauer as full and complete settlement and satisfaction for all claims of any kind whatsoever that may hereafter arise while the said Lottie Lauer shall be in the employ of the said Ben Banning or any action of every kind growing out of the relationship of the said parties hereinbefore mentioned. And the said Lottie Lauer, recognizing the danger to the said Ben Banning of fictitious and manufactured claims and accusations arising from the situation herein before mentioned, hereby expressly agrees that she will at once report to the said Ben Banning any impropriety committed toward her on the part of any of the employes of the said Ben Banning, and that she will in no case either by insinuation or by formal charge accuse the said Ben Banning of any act of impropriety toward her. And this agreement shall be witness to the fact that the said allegations, if any shall be so made, are false and fictitious, and made for the purpose of extorting money or some other pecuniary advantage. Signed in duplicate by the parties hereto...
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