Rockwell v. Day

• Decision Date: 27 April 1918
• Docket Number: 14533.
• Citation: 172 P. 754,101 Wash. 580
• Court: Washington Supreme Court
• Parties: ROCKWELL v. DAY.

172 P. 754

101 Wash. 580

ROCKWELL v. DAY.

No. 14533.

Supreme Court of Washington

April 27, 1918

Department 2. Appeal from Superior Court, Spokane County; John R Mitchell, Judge.

Action by Verna Rockwell against J. W. Day. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to enter judgment notwithstanding the verdict.

Voorhees & Canfield, of Spokane, for appellant.

C. E Ellis and Chas. W. Gillespie, both of Spokane, for respondent.

CHADWICK J.

Plaintiff brought this action to recover damages for seduction. The jury returned a verdict in her favor, and the defendant has appealed. The assignments of error principally relied on are that the action is barred by the statute of limitations, and that the facts are not sufficient to sustain the verdict and judgment. These questions were preserved throughout the trial by appropriate pleadings and motions. Plaintiff alleges that the seduction occurred on or about the 9th day of April, 1909, and that the meretricious relations then begun continued until on or about the 20th day of December, 1913. This action was begun on the 5th day of December, 1916. It is the contention of defendant that the statute began to run on the 9th day of April, 1909, and that an action would be barred on the 9th day of April, 1912. He cites Rem. Code, § 159, which makes no exemption in favor of this class of actions, and the following cases: Wilhoit v. Hancock, 5 Bush (Ky.) 567; Dunlap v. Linton, 144 Pa. 335, 22 A. 819; Davis v. Boyett, 120 Ga. 649, 48 S.E 185 People v. Nelson,

153 N.Y. 90, 46 N.E. 1040, 60 Am. St. Rep. 592; People v. Clark, 33 Mich. 112.

Plaintiff insists that the better rule is that the statute does not begin to run where improper relations are begun under a promise of marriage so long as the relations are continued or until the last act of intercourse; that all the acts of intercourse are one transaction; and that a continued promise of marriage is implied from time to time. She relies on Davis v. Young, 90 Tenn. 303, 16 S.W. 473, and on Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341; Gunder v. Tibbits, 153 Ind. 591, 55 N.E. 766; Breiner v. Nugent, 136 Iowa, 322, 111 N.W. 446; Baird v. Boehner, 77 Iowa, 622, 42 N.W. 454; People v. Millspaugh, 11 Mich. 278. The general rule, as most text-writers agree, is that the statute begins to run from the time of the seduction where the action is maintained by the woman on her own behalf. Wood on Limitations (2d Ed.) § 186; Burdick, Law of Torts, § 273; 35 Cyc. 1308; 25 Am. & Eng. Encyc. p. 224. But whether we call the one or the other the general or the better rule, it must be admitted that there is a very marked conflict of authority. We could base our opinion on either rule and sustain it by sound reason, for if the one rule protects the artless and confiding female, the other protects the man from the artful pretensions of women who may pretend to have been seduced in order to obtain a pecuniary compensation, or to hide a shame revealed by a subsequent pregnancy, and who may fortify their pretensions by a showing of continued illicit cohabitation as a circumstance to sustain the charge of seduction under a promise of marriage or by arts, persuasions, or promises.

There is an equity in cases of this character, it is noted by Mr. Cooley in Watson v. Watson, 53 Mich. 168, 18 N.W. 605, 51 Am. Rep. 111. In many of the cases it is confessed without notice. This court in the case of State v. Carter, 8 Wash. 272, 36 P. 29, upheld a seemingly improbable and untruthful statement of her case by the prosecutrix because of her 'tender age.' But if there be no equity, a case of seduction brought by a woman of mature years calls for cautious inquiry, holding fast to the law's first aid--common sense.

The facts in many of the cases seem to have called for the rule that would allow or defeat the action according to the justice of the particular case. Our thought may be illustrated by reference to Franklin v. McCorkle, 16 Lea (Tenn.) 609, 1 S.W. 250, 57 Am. Rep. 244, opinion on rehearing, later overruled in Davis v. Young, 90 Tenn. 303, 16 S.W. 473. In the one case the justice of the case was with the defendant; in the other the justice of the case was with the plaintiff. It was so in the state of Indiana, where in an earlier case, the court held that the statute began to run from the first act of seduction. In a later case where it was clear that the woman had been made the victim of the man, the rule was held otherwise. Gunder v. Tibbits, 153 Ind. 591, 55 N.E. 762. We therefore at this time hesitate to lay down auy rule that would be a guide for all cases, nor is it necessary, as we view the facts in this case.

Plaintiff alleges in her complaint, and counsel sought diligently to prove at the trial, that she had been seduced under a promise of marriage, and that the relations of the parties had been continued under that promise. We have studied the facts diligently, and are convinced that if the case cannot be sustained upon a promise of marriage, it cannot be sustained at all, for the 'solicitation, persuasion, and promises' of defendant do not, considering the age of the plaintiff and her understanding, make out a case for seduction. Moreover, the rule is:

'Where the seduction is alleged to have been committed under a promise of marriage, or where such a promise is required by statute, it must be shown that the necessary promise existed at the time of the seduction,' etc. 25 A. & E. Enc. Law, 239.

Plaintiff was 49 or 50 years of age at the time of the trial, 1917. She says the seduction occurred in April, 1909, so her age then was about 42. She was married in the year 1885; her husband died in 1907. She has two grown daughters; one of the age of nearly 30 years, and the other 18 months younger. Plaintiff knew defendant before her husband died. They came together thereafter in a business or social way. Their association gradually grew more friendly, and their relations more intimate. Defendant called frequently at plaintiff's rooms at the several hotels and lodging houses in which she resided. In the fall of 1908 she became ill and went to a hospital. Defendant called on her there; he paid her bill, and finally at her request removed her to the home of her niece. From the first early days of the friendship and association of these people defendant constantly and persistently importuned plaintiff to submit to sexual intercourse. According to the story of the plaintiff, and we are following her testimony as closely as we can, he let no opportunity pass when they were alone to 'love her up in most every way a man can a woman'; to kiss, caress, fondle, and pet her, and at least on one occasion, as she says, he tried every way he could to 'get his hand up under my clothes.' The positions of the parties in this battle were so clearly defined, and if plaintiff was possessed of the understanding of the ordinary human being and the natural modesty of womankind, she must have understood that defendant had no honorable intention or highminded purpose to love and cherish her. He was resolute in his purpose to conjugate with her, and she was willing to be fondled, caressed, and 'loved up' by a man who brought no appeal other than to the brutish instincts of the object of his lascivious desire. Knowing this situation, the attitude of defendant, and the possible consequence of further association, plaintiff, after some slight disagreement with her niece, and at the suggestion of defendant, went to work for him in his office. Defendant secured a room for her in a hotel or rooming house known as the Minnesota Block. She stayed in the office during the day; defendant was a frequent caller by night. Their association was constant, and defendant was insistent when they were alone. He was always fondling and caressing her. The inference from her testimony is that defendant's sexual desire was the outstanding topic of conversation. There was no formal promise of marriage, or artful persuasion that a woman over 40 years of age and the mother of grown children could urge as a seductive influence. She had exacted no promise of marriage, and defendant had made none. Her story is:

'He would come to the office every few minutes or every short time from the shop, and come in there, and he would make love to me, and caress me in every way that a man could to a woman to show his affection for her; and he said he cared more for me than any woman he had ever met. He kissed me there in the office many a time, and he has made reference to sexual intercourse there. He used to try to get me--he had his room in the back part of the office, and he used to try to get me to go in there in his room and his bed with him. That occurred very many times, and at those times he promised me that he would care for me, and we would be friends, and after a while when we got better acquainted, he says--that was the beginning of our acquaintance, the first year--he said, 'after we get better acquainted,' and so on, he says, 'we will have a happy home.''

Plaintiff went to Seattle just before Christmas, 1908. At that time the virtue of plaintiff was triumphant; the vice of defendant had been baffled. Plaintiff returned to Spokane about the 20th of January. She took a room at a hotel; the next day she telephoned defendant. She threw out a skirmish line. Defendant chided her because she had not called him as soon as she had arrived, saying:

'I suppose you had some other man at your room Saturday night, and you didn't want me to know you were there.'

Plaintiff was not repelled by this burning insult to chastity. The next day she went to defendant's office. He caressed her, drew her down upon his lap, and said:

'You are in trouble and have got to tell me what

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