18 Ind. App. 620 | Ind. Ct. App. | 1897
Appellee prosecuted this action, by her next friend, against appellants, for an alleged assault
The complaint avers that appellant, Levi M. Courtney was a farmer, that he was a married man, that he lived with his family, one of whom was the appellant, James E. Courtney, his son; that appellee became a domestic in his family; that appellant, James E. Courtney, professed love to her, asked her to marry him, and that they finally did enter into a verbal marriage contract. It is further charged that after they became engaged to marry, he, James E. Courtney, importuned her to have sexual intercourse with him; that she finally yielded to his desires and embraces, and that by reason thereof she became pregnant; that after she became pregnant, the appellant, James E. Courtney, refused to marry her while she was in that condition; that the said James E. Courtney informed his. father, Levi M. Courtney, of the condition she was in, and that they, together with the appellant, Charles R. Derment, entered into a conspiracy for the purpose of committing an abortion upon her and causing her to be prematurely delivered of said bastard child; that the said Charles R. Derment first prescribed for her certain medicines, which she took from time to time, but which did not produce the intended effect; that thereupon the said Levi M. Courtney procured the attendance of said Derment upon her while she was still living at said Courtney’s house, and that the said Derment did attend her, gave her large quantities of chloral and other drugs, and finally attempted to perform an abortion upon her by instruments inserted in
Appellants have assigned four distinct specifications of error, but they are all waived by failure to discuss them, except the third, which is that the court erred in overruling the appellants’ motion for a new trial.
The reasons assigned for a new trial were, first, that the verdict of the jury was not sustained by sufficient evidence. Second, that the verdict of the jury was con-tray to law, and third, that the damages assessed by the jury were excessive.
Counsel for appellant say, that it is upon the third reason assigned in their motion for a new trial that they rely for the reversal of the judgment, and it is the only one they have discussed. The appellants- go so far as to say “we ask the court to examine thoroughly the testimony of the appellee, and it is upon her testimony alone that we desire to stand or fall.”
The appellee has not favored us with any brief or citation of authorities in support of the judgment. As the appellants have discussed but one proposition, we will not look to the record for other questions which it may probably contain.
The action is one sounding in tort, and in such ease the amount of recovery in the absence of malice is the actual damages sustained, including physical pain and suffering, and expense incurred incident to the injury. The rule prevails in this State, that the appellate tribunal will not interfere with the verdict of a jury unless the amount of recovery is so clearly excessive as to indicate that the jury acted from prejudice,
, Chancellor Kent said that courts will not disturb a verdict on the ground of excessive damages unless they are so “outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption.” Coleman v. Southwick, 9 Johns, *45.
To determine the question as to whether or not the damages are excessive, when measured by the evidence, and as the appellants say that they rest their case upon the evidence of the appellee alone, we must look to that.
Her evidence, briefly summarized, discloses the following facts: She became a domestic in the family of the appellant, Levi M. Courtney, in the spring of 1893, and remained in his service until about the 1st of January, 1895; she became twenty-one years old in October, 1891, and the defendant, James E. Courtney, was twenty-four years old, while she was so in the service of Levi M. Courtney; the appellant, James E. Courtney, made love to her, asked her to marry him, and they mutually agreed that the marriage ceremony should take place on or about January 1,1895. After she had become engaged to James E. Courtney, he persuaded her to sumbit to his embraces, and she had sexual intercourse with him some five or six times, the first of which was in July or August, 1891; they had sexual intercourse sotnetimes in her room In her bed, and sometimes in his room in his bed. As a result of such sexual intercourse, she became pregnant, and her
The theory of tbe complaint is that tbe appellants committed an assault and battery" upon appellee, for tbe purpose of producing an abortion upon ber. In 1 Wait, Act. and Def, p. 344, section 11, it is said: “An assault implies force upon one side, and repulsion, or, at least, want of assent, upon tbe other. An assault upon a consenting party would, therefore, be a legal absurdity.”
Mr. Cooley, in bis work on Torts, p. *163, says that,
In 1 Jaggard on Torts, p. 199, it is said: “Harm suffered by consent is not, in general, the basis of a civil action. * * * If the defendant is guilty of no wrong against the plaintiff except a wrong invited and procured by the plaintiff for the purpose of making it the foundation of an action, it would be most unjust that the procurer of the wrongful act should be permitted to profit by it.”
The supreme court of Kentucky, in the case of Goldnamer v. O’Brien, 98 Ky. 569, 33 S. W. 831, 36 L. R. A. 715, where the facts in all essential respects were similar to those in the case before us, held that there was no liability. In that case the appellee sued appellants for an assault with intent to commit an abortion, and recovered in the court below. The court said: “If we assume from the proof that the appellants did in any way induce the appellee to resort to this method of hiding her shame, and they deny this most earnestly, it is clear from the testimony that she left her home * * * and went to Louisville in search of this relief voluntarily, and alike voluntarily submitted herself to the treatment of a physician. * * * ' * * *
“The right to recover is of course clear unless it is destroyed by the complainant’s consent to the assault. * * * * jj. may pe stated generally that the suit of a wrongdoer will be rejected when seeking redress for another’s having participated with him in the wrong.”
Again the court said: “They [the appellants] may have urged the Louisville trip as the only means of securing the desired result, and may have furnished money or otherwise assisted the plaintiff in the accomplishment of her purpose. While it is not directly shown that either of them employed or otherwise pro
“Is she entitled to a judgment upon the state of facts thus assumed to exist, and apparently found to exist by the jury?”
Upon the evidence, the jury evidently arrived at the conclusion, that appellants procured for appellee the medicines she took; that they connived together, to the end that appellant, Derment, should perform upon her an operation or operations, for the purpose of causing her to miscarry, and that they did this for the purpose of producing an abortion. As in the case from which we have just quoted, it is but justice to say that each of the appellants strenuously denies any participation in, or knowledge of the facts charged against them, except James E. Courtney admits having had sexual intercourse with appellee.
There are many other facts and circumstances which throw much doubt and discredit upon the evidence of the appellee, as to that part of her evidence regarding the attempt to produce an abortion. That part also of her evidence is unsupported by any other evidence. Appellee testified that Dr. Derment used an instrument upon her three different times, and for three-quarters of an hour at a time, probing in her vagina and womb. When we take into consideration the delicate organism of the vagina and womb, it seems almost incredible that appellee could undergo the severe operations she says she did, and yet not abort, or have her health seriously impaired. Consider these operations, and the effect that ergot, chloral, and chloroform would have, from the enormous quantity she says she took, and yet no serious results follow, we say it is incredible, and casts discredit
But when we take the facts, as we assume the jury determined them, and apply the law to them, we can not see upon what sound reason or solid, basis the judgment can rest.
The evidence does' not show that any permanent injury was sustained by the appellee. The injuries, if any she received, did not prevent her from performing her daily labors and duties. She continued to perform her labors as a domestic; she cooked, washed dishes, washed and ironed clothes, did housework, walked short and long distances, walked at one time four or five miles; rode in buggies and farm wagons, went to church and sang in the choir; went to parties, and visited at neighbors. The record contains much evidence in regard to the lascivious and lecherous conduct with appellant, James E. Courtney. It shows that Levi M. Courtney sometimes preached, and that James E. Courtney talked and prayed in church. At the time appellee became pregnant she was not twenty-one years old, living as a servant in a family strange to her till she commenced working fcfr Levi M. Courtney, and the very fact that she was pregnant with a bastard child, together with all the facts as disclosed by her evidence, was enough to arouse in the hearts and minds of the jury a well grounded sympathy for her, and to create with the jury an unconscious prejudice in her favor.
Judgment reversed, with instructions to grant appellants’ motion for a new trial.
Black, J., dissents.