152 Iowa 99 | Iowa | 1911
This is the second time the case has been before us. The opinion on the first appeal -will be found in 110 Iowa, 319. The issues were the same on the second trial as on .the first, save that defendant set out the contract copied in the former opinion as a complete defense to plaintiff’s action. The testimony is not exactly the same as on the former trial, plaintiff having modified some of her statements in order to prove the alleged seduction a little more clearly, and to show that the promise of marriage was after the making of the contract just referred to.
• This instruction was correct. If one must, upon penalty of having a presumption raised against him, introduce his lawyer or physician, the statutes prohibiting them from testifying are of no significance. Of course the ordinary rule is that if one does not produce testimony Within his control, or ' prevents the use of such testimony, the presumption arises that such testimony, if produced, would be adverse to them. But this rule does not apply to privileged communications for reasons too obvious to mention.
(4) Seduction is the carnal knowledge by a man of an unmarried woman of a previously chaste character, accomplished by means of some false promise, artifice, flattery or deception. It is not sufficient that plaintiff alone show that defendant had sexual intercourse with her, but it must appear that the plaintiff was then an unmarried woman of previously chaste character, and that the defendant accomplished his purpose by some false promise or artifice, or that she was induced to yield to his embraces by flattery or deception. If the plaintiff was not then an. unmarried woman of previously chaste character, or if without being deceived, or without any false promise, deceit or artifice, she voluntarily submitted to the defendant’s embraces, the law affords her no remedy in a civil action for damages.
(13) In relation to the measure of plaintiff’s recovery you are further instructed if you find she is entitled to recover for breach of promise of marriage, as hereinbefore instructed, then, in -that event, you will determine whether she is entitled to recover enhanced or additional damages on account of seduction, as alleged by her in her petition; and in relation thereto you are instructed that if you further find from the evidence, by a preponderance thereof, that while the plaintiff and defendant were mutually promised in manage, if they were so promised, and intending and expecting marriage, the defendant solicited, in consideration of such intention and expectation, and the plaintiff permitted in consideration of such expectation and inten
Instruction four is not seriously complained of; but it said that thirteen entirely minimizes the effect of four and is in conflict therewith. It is also argued that thirteen is erroneous in that it omits the thought that to constitute seduction the intercourse must have been had by reason of the promise of marriage or because of some artifice practiced by defendant. It is fundamental that instructions should be considered as a whole, and that those relating to the same subject-matter should be read in connection with each other. When so construed the - instructions appear to be correct. We are not to be understood as holding thirteen standing alone is incorrect. Certain it is that it does not conflict with No. 4. It is a mere amplification thereof and a direction to-the jury as to the purpose for which it should consider the testimony as to seduction. No prejudicial error is here shown.
V. Instruction No. 1 does not, as counsel contend, assume any facts as being true. We shall not set it out. The jury is left to determine the facts, and these being found the trial court correctly states the effect to be‘given such facts.
VIII. Lastly, it is insisted that the jury returned a quotient verdict. The record does not sustain the claim; but on the contrary negatives the proposition.
No prejudicial error is shown, and the judgment must be, and it is, affirmed.