154 Minn. 175 | Minn. | 1923
Action for damages for an alleged assault, by defendant upon plaintiff, on June 16,1920. There was a verdict in favor of plaintiff, and from an order denying his alternative motion for judgment or for a new trial, defendant appeals.
At the time of the trial plaintiff was 33 years of age, had never been married and lived with her father in the city of Winona. She was a trained nurse by occupation, and, prior to the time of the affair here complained of, had always borne a good reputation. The defendant is a bachelor, 47 years of age, and had owned and operated a retail shoe store in Winona for a number of years prior to the bringing of this action. He also owned a number of other pieces of property in this state and Canada, all of which he had disposed of since this action was commenced.
For her cause of action plaintiff alleges — and she testified that she had known the defendant since the year 1916 — that from that time until 1918 they saw very little of one another; that, during the year 1918, he became more attentive to her, and that by 1920 she was given to believe that Ms regard for her had ripened into a sincere affection; that they had many talks as to plaintiff’s qualifications for a wife; that plaintiff believed that he had a sincere love for her; that he frequently called upon her and took her riding and to entertainments; that, believing and trusting in his assurances of affection, she invited him to her home, and that on such occasions it was a common occurrence for him to caress her on his departure. She testified that, on the evening of June 16, 1920, the appellant called on her as usual; that the fore part of the evening was spent in the parlor visiting; that at about 10 o’clock, as she was passing where he sat, he put his arm around her drawing her onto the arm of his chair where they remained for some little time; that when he arose to go she procured his coat for him and opened the door as was her custom; that they stood on the threshold for a short time, when he suddenly turned, grabbed her about the waist, threw her onto the porch floor where he had illicit relations with her, resulting in her becoming pregnant, and that as a result a child was born to her alive on March 22, 1921.
It is strongly urged on behalf of defendant that the evidence was insufficient to sustain a finding that defendant had sexual intercourse with plaintiff against her will; that the court erred in refusing to give defendant’s ninth request to charge with reference to plaintiff’s failure to make an outcry, or complaint of the assault; that the court erred in holding that the verdict was not excessive, and did not appear to have been given under passion and prejudice, and for errors of law occurring at the trial.
The rule is well established that while the absence of consent is essential to constitute the crime, as in an assault with intent to commit rape, the consent of the person assaulted is a complete defense to an action for assault and battery. Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853; Goldnamer v. O’Brien, 98 Ky. 569, 33 S. W. 831, 36 L. R. A. 715, 56 Am. St. 378. So while in a civil action for assault and battery based on an alleged act of sexual intercourse with the plaintiff, committed against her will and without her consent, in order to entitle the person assaulted to recover damages, the want of her consent to the act must be shown by a fair preponderance of the evidence. The trial court, in the instant case, submitted this very phase of the case to the jury in a very clear and concise manner, and a verdict was returned in favor of the plaintiff, which closes the controversy as to the liability of the defendant, for the verdict is amply supported by the evidence.
Affirmed.
