Gray v. Bean

Dillon, Oh. J. 1. Pleading : requisites'of petition. I. Our statute gives to an unmarried female the right to prosecute, as plaintiff, an action for her own seduction, and it provides that in such action she may recover such damages as may he found in her favor. Rev. § 2790. No objection to the petition was made by demurrer or motion. The defendant answered to the merits. The testimony is all in the record. It shows a trial on the merits without any objection to the sufficiency of the petition. The record also shows that the case was treated as an action by the plaintiff for her own seduction. In the motion for a new trial, no specific objection is made to the petition. It is stated generally that “ the verdict is contrary to law,” but in' the particulars which are specified wherein it is contrary to law, it is not set down that the petition is defective, or does not state a cause of action. It is now argued in this court that the motion for a new trial should have been sustained, because of a fatal defect in the petition. This defect is claimed to consist in an omission in the petition to allege that the plaintiff was damaged in any sum, as the result of the wrong or injury imputed, to the defendant. In our judgment, the allegation of damages, as the result or consequence of the seduction, is sufficiently stated to sustain a verdict, when the objection is not made until after the trial. Smith v. Milburn (17 Iowa, 30) is in point and answers the objection now under consideration. 2. instruction: seduction. ' II. The seventh instruction is objected to by the defendant. It is as follows: “7. If you find that the plaintiff was seduced by the defendant, and that she was of previous chaste character, in estimating her damages, you will consider, first, loss of time by plaintiff; the expense incurred for, medical attendance (if any), and board while sick, and the like; [224] second, physical suffering; third, the mental anguish, loss of character and social standing, and sense of shame caused by the seduction. The damage should be commensurate with the injury, but you must take care and not let your sympathy lead you to an unjust or oppressive assessment.” In the printed argument of the appellant’s attorneys, they object to this instruction because “it is inapplicable to the testimony, there being no proof of actual damage to the plaintiff. There was no evidence of loss of time during sickness, or that a physician was employed, or one cent expended for medicine, nursing or other services demanded in consequence of the alleged seduction.” It was proved, and not controverted, that the plaintiff had given birth to a child. There was no evidence as to how many days’ loss of time this would occasion, but this is not a sufficient ground on which to reverse the judgment of the court below. The instruction did not direct the jury to allow for medical attendance, unless expenses of this nature had been incurred. 3 damages: seduction. III. Finally, it is urged that the verdict was excessive. This objection cannot prevail. The testimony shows that the Pontiff was a girl, poor, indeed, compelled to labor, without a father, as it would seem, and who was living at the time in the house of the defendant’s father. The plaintiff testified that the defendant accomplished her ruin under promises to marry The defendant did not testify, nor produce any testimony contradicting the plaintiff in any essential particular. The attempt to assail the plaintiff’s character was a manifest failure. Under the circumstances we cannot say that the recovery was, in fact, in excess of a just amount; much less are we prepared to say that, in refusing a new trial on this ground, the District Court erred. [225] In conclusion, we add, that there were circumstances in evidence of such a nature as would justify the jury in finding that the plaintiff was unmarried. Affirmed.