Wessel v. Lavender
| Decision Date | 02 December 1914 |
| Citation | 171 S.W. 331,262 Mo. 421 |
| Parties | TILLIE WESSEL, Appellant, v. C. L. LAVENDER |
| Court | Missouri Supreme Court |
Appeal from Warren Circuit Court. -- Hon. James D. Barnett, Judge.
Reversed and remanded.
John W Booth, Jesse H. Schaper and J. W. Delventhal for appellant.
T. W Hukriede and Morton Jourdan for respondent.
This is an action by plaintiff for five thousand dollars actual damages and five thousand dollars punitive damages for ravishing her on April 16, 1908, while she was unconscious. She was, at the time of the injury complained of, married, about thirty years old, and lived with her family, consisting of husband and two children -- Dalla, a girl ten years old, and Earl, a boy of six. The defendant had been their family physician for twelve years. His age is not given, but the fact that he graduated at the Washington University Medical School in 1865 indicated that he had arrived at the age of discretion. Mrs. Wessel had suffered from an ovarian trouble for which Dr. Lavender had been treating her. It caused her much pain at times, and he had been called to relieve her, and on the particular occasion in question he was called for the same reason, and administered the usual sedative by hypodermic injection. What is charged to have occurred is stated in the petition as follows:
On the trial the plaintiff testified in substance that on Monday evening April 13, 1908, she was suddenly seized with a painful aggravation of her trouble and called Dr. Lavender, who administered a hypodermic injection which relieved her. He also attended her the next day for the same purpose, but did not come Wednesday. On Thursday evening after retiring she was seized with a very painful attack and sent for Mrs. Struebe, a neighbor woman, and for Dr. Lavender. There was at the time, in addition to her own family, a young girl about fifteen years old staying in the house to assist her. She slept in a large room with two beds, one of which was occupied by this girl and her daughter, while the little son occupied the bed with her. Mrs. Struebe came and then the Doctor, who administered a hypodermic injection and sat by the bed to await its effect. It did not relieve her and he administered another. The two girls had, after the arrival of Mrs. Struebe, been sent to bed in a room across the hall and the boy had been placed in the other bed in Mrs. Wessel's room. Shortly after the administration of the two injections she became tired and went to sleep, the Doctor then being seated at the bedside and Mrs. Struebe at the foot of the bed. She awoke with a smothering sensation, and found the Doctor in the bed engaged in the commission upon her of the act charged in the petition. She then said: "What in the dickens are you doing, doctor?" and called for her daughter. The Doctor said: "The kids aren't in here." She then called Mrs. Struebe and the Doctor said she had gone home. She said, "You get in the hall and call those kids out of there, you call them." He was then dressing and told her to be quiet, that it was not so bad. She asked him again to call the children. When he had completed his toilet he picked up his grip and she cried again two or three times to call the children, but he walked back into the kitchen and then returned to the bed and said: "Look here, Mrs. Wessel, now if you ain't quiet I will give you another dose of medicine." She then shut up mighty quick and kept still. He asked her how she was feeling and she said all right, and asked him again to call the children. He then went out and the two girls soon came into the room.
She further testified that the next morning the doctor called at her home, and coming into her room, shut the door and sat down near her bed. She asked him what made him do that to her the night before. He said it was not so bad, and not to make a great big halloo about it. After some talk in which he attempted to excuse himself, she called him "You dirty, nasty, stinking thing," and threatened to tell her husband. He tried with much talk to persuade her not to "make a great big howl about little or nothing," but she kept on fussing and he kept on arguing that it would ruin his reputation and that a murder might come of it. She insisted that she was going to tell Mr. Wessel, and after the fuss had lasted quite a while he said: "Well, I am willing to pay for the dirtiness and harm: it don't make any difference how much it will cost, if it costs me $ 1000, just so you won't tell him." She vowed and declared for a while that she would, and finally said she would see about it. He said: "All right, Mrs. Wessel," and then after they had quarreled a little longer he went home. This talk lasted from half past six or seven o'clock that morning until half past eight or nine o'clock. In the afternoon he came back and after shutting the door asked her if she agreed to it. After they had argued a while, she said: "If you are willing to pay what I ask you, I will agree to it, to take the money." He said: "All right, Mrs. Wessel, are you honest?" She said, "Yes, honest to God," and they shook hands on it and made the agreement that he was to pay. She was not to tell her husband or anybody else. This final conference took about an hour. No amount was mentioned other than stated above.
Doctor Lavender testified that at the time of his call on the night of April 16, 1908, he stayed until Mrs. Wessel had gone to sleep after the administration of the second hypodermic and then went home, and that everything she testified to as having occurred afterward was purely fabrication, without any foundation in fact, and that he never had heard of any complaint of the kind until February 6, 1909, when she came to him with a bill as follows:
On this paper were written by Dr. Lavender the following word and figures:
Mrs. Wessel testified that when she made the bargain with the doctor he said he could not pay her until the first of the year, so that she waited until about the middle of January before saying anything more to him about it. In the meantime she was making monthly payments on the family doctor bill which he then told her had nothing to do with her bill against him, which he wanted her to make "reasonable." This induced her to make it $ 500 instead of $ 1000. On February 4, Mr. Wessel asked her to pay the balance of $ 57 still due on the family bill, which she did, taking her bill along, but had no opportunity to present it. She went back on the sixth, and when she presented it he said, "What are you going to do if I don't pay it?" They then quarreled, during which she asked him to call his wife and threatened to tell Mr. Wessel and that it would come out, and then started to go, when he caught her by the arm and after more talk paid her $ 60 and marked it on the bill as it appears.
The Doctor says that she first presented the bill on February 6th and that when he refused to pay it, she presented a gun, and in terms oozy with profanity and ribaldry commanded him to pay some of it. He was scared, thought his life in danger, and gathered up $ 60, the same bills she had paid him two days before, which he paid, marking it on the bill, which he put in his own pocket, where he kept it until he turned it over to his attorney. He had her arrested with due promptitude on the charge of robbery growing out of the manner in which she made the collection, and she brought this suit.
Dr. Lavender testified on the trial as to the kind and quantity of the medicine administered to Mrs. Wessel on the night of the alleged assault and introduced expert witnesses who testified that it would not ordinarily produce unconsciousness. The plaintiff requested and the court gave the jury the following instructions:
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