Lemmon v. Moore

• Decision Date: 07 March 1884
• Docket Number: 8810
• Citation: 94 Ind. 40
• Parties: Lemmon v. Moore
• Court: Indiana Supreme Court

94 Ind. 40

Lemmon v. Moore

No. 8810

Supreme Court of Indiana

March 7, 1884

From the Noble Circuit Court.

The judgment is affirmed, with costs.

W. H Coombs, J. Morris, R. C. Bell and A. A. Chapin, for appellant.

F Prickett, H. G. Zimmerman and I. E. Knisely, for appellee.

OPINION

Niblack J.

Action by Alexander Moore against Stansbury W. Lemmon for the seduction of Hannah L. Moore, the former's wife.

The complaint was in two paragraphs.

The first paragraph charged that the defendant, on the 2d day of October, 1878, and on other days and times between that day and the commencement of this suit, debauched and carnally knew the plaintiff's wife.

The second paragraph charged the defendant with having, on the 7th day of June, 1879, and on divers other days and times between that day and the time of the commencement of this suit, unlawfully and wickedly debauched and carnally known the plaintiff's wife, and with having used his position as physician of the family to accomplish that result.

The defendant moved that the plaintiff be required to make both paragraphs of the complaint more specific by charging the particular times at which the alleged illicit intercourse between his wife and the defendant respectively complained of took place, but the court overruled the motion as to both paragraphs.

Answer, verdict for the plaintiff, assessing his damages at $ 1,300, and with it answers to special interrogatories submitted to the jury.

The third and fourth interrogatories submitted to the jury at the request of the defendant, with the answers to each, were as follows:

"3d. Did said parties" (meaning the defendant and the plaintiff's wife) "commit adultery in the plaintiff's house?" Answer of the jury: "Yes."

"4th. If so, when and where did they commit said adultery?" Answer of the jury: "Yes; between 2d (of) October, 1878, and 9th of July, 1879."

Before the jury were discharged, the defendant asked that they be required to answer this fourth interrogatory more specifically, both as to time and place, but the court refused to so require the jury, and a new trial being also denied, judgment followed upon the verdict.

The defendant, appealing, concedes that the complaint was sufficient upon demurrer, but insists that under the provisions of the code of 1852, which was in force when this cause was tried, he was entitled to have the charges constituting the gravamen of the action made more specific, so that he might have been better enabled to prepare for his defence.

The facts charged in the complaint constitute what is sometimes denominated an action of seduction, but more frequently an action for criminal conversation, and what is termed by some of the text-writers an action of trespass for adultery. Whatever designation may be applied to it, the case made by the complaint is, in all its essential features, analogous to and governed by the same general rules as an action of trespass. 3 Phillipps Ev. 521; 4 Bouvier Inst. 44. This cause, therefore, belongs to that class of actions in which a continuando may be laid, and, as a consequence, in which proof of the wrongful acts in issue, committed on any day within the time covered by the complaint, may be proved.

In treating of actions of the class to which this belongs, Phillipps, supra, says: "Any number of adulterous acts may be proved within the limits of the time specified in the declaration; and in addition to this, with a view of explaining the nature of the intimacy between the parties, indecent familiarities may be proved, even earlier than the first mentioned day, though not a previous criminal connection." Vol. 3, p. 526. See, also, 2 Greenleaf Ev., section 624.

There was nothing in the code of 1852 inconsistent with the rules of pleading and evidence thus stated and recognized, and hence the circuit court did not err in overruling the defendant's motion to have the complaint made more specific.

There has been some discussion between counsel as to whether a bill of particulars might not have been required in this cause, but no such question was made in the circuit court, and consequently that question is not before us for decision. It may be remarked, however, that as a general rule a bill of particulars will not be ordered in an action for a tort. On this subject see the cases of Pylie v. Stephen, 6 M. & W. 813; Stannard v. Ullithorne, 3 Bing. N. C. 326; Snelling v. Chennells, 5 Dowl. P. C. 80; Murphy v. Kipp, 1 Duer 659; Derry v. Lloyd, 1 Chitty 724, per Best, J; Strong v. Strong, 1 Abb. Pr. N. S. 233; Henry Ward Beecher's Case, p. 80; Tilton v. Beecher, 59 N.Y. 176 (17 Am. R. 337).

The circuit court gave, in connection with others, the jury the following instruction:

"In order to entitle the plaintiff to recover in this action, he is required to prove to your satisfaction, by a fair preponderance of the evidence, a marriage in fact, or, in other words, an actual marriage by the plaintiff to the woman with whom it is alleged the criminal intercourse occurred and previous to the time or period of the alleged criminal intercourse; that the defendant, at some one time and place, within the period alleged in this complaint (though no precise date or place where an act was committed need be proved), had sexual intercourse with the wife of the plaintiff. If these...