Lampman v. Bruning

Ladd, J.

The petition alleges that plaintiff was, “on or about the 20th day of January, A. D. 1898, an unmarried woman of chaste character; * * * that on or about said 20th day of January, 1898, the said defendant, with artifice, persuasion, and entreaties, and under promise of marriage, did seduce, debauch, and carnally know the-plaintiff, and as a result of sexual intercourse the plaintiff was, on or about the 29th day of September, A. D. 1898, delivered of a.female child.”

Under t'hese allegations the question of her previous chastity was submitted to the jury, and, upon an affirmative finding, loss of character authorized to be considered as an i. pleadings: sufficiency of petition. element of damages. Appellant insists that the allegations were insufficient to raise the issue, for, as he contends, plaintiff might have .been both chaste and unchaste within the period described as “on or about January 20, 1898. ” It may be conceded that, under the statute defining seduction, “previous chastity” means up to and at the very time of seduction (State v. Gunagy, 81 Iowa, 177), and also, because of the strictness and accuracy exacted in the averments of an indictment, that the above allegations might be too indefinite to charge the criminal offense. In an early Minnesota case, the court went so far as to say that an averment of chastity previous to the day on which the seduction was definitely alleged to have occurred was insufficient, for, “though chaste at all times previous to the eleventh day of May, she may on that day, and before the alleged seduction, have become unchaste.” Whether the possibility of so' improbable a situation should be given weight, even in construing an indictment, we shall not stop to determine. Certain it is no such nicety and strictness should be injected into the civil practice, otherwise many evils of the former system would linger to vex, annoy, and impede the administration of justice. The rule that nothing may be taken by intendment in construing an indictment has no application to pleadings in civil actions. The true meaning of th® pleader is to be ascertained from a fair construction of the langu ige employed, and this accepted. The rule that when “the construction is doubtful, after giving to the language a reasonable intendment,” as laid down in J. Thompson & Sons Mfg. Co. v. Perkins & Sons, 97 Iowa, 607, it should be resolved against the pleader, is not to be applied save when the attack is by motion or demurrer. It is not then adopted because a feature of common-law pleading, but as an aid in securing definiteness and precision in the settlement of issues. “The rules by which their sufficiency are to be determined are those prescribed by the Code.” Code, section 8557.

After issue is joined on the merits, notwithstanding section 2951 of the Revision of I860, is not found in the Óode, the pleadings will be liberally construed, with a view to effectuating substantial justice between the parties. Gray v. Coan, 23 Iowa, 344; Foster v. Elliott, 33 Iowa, 216. Especially is this true after trial, for “an error or defect in the proceeding which does not affect the substantial rights of the adverse party” is to be disregarded (Code, section 3601) even though such errors are in the pleadings. Coates v. Davenport, 9 Iowa, 227; Doniphan v. Street, 17 Iowa, 317. While nothing is to be assumed in favor of the pleader unless averred, he is to be accorded the advantage of every Reasonable intendment, even to implications necessarily inferred, regardless of technical objections or informalities. Sell v. Miss. R. Logging Co., 88 Wis. 581 (60 N. W. 1065); Moffat v. Fulton, 132 N. Y. 507 (30 N. E. Rep. 992); Kean v. Mitchell, 13 Mich. 207; Jack v. Weiennett, 115 Ill. 105 (3 N. E. Rep. 445, 56 Am. Rep. 129); Ornman v. Mannix, 17 Colo. 564 (80 Pac. Rep. 1037, 17 L. R. A. 602, 31 Am. St. Rep. 840). See chapter on. “Construction of pleadings,” 4 Ency. P. & P. 741.

The petition, as we think, fully apprised the defendant that the plaintiff would claim on the trial that she A previous chaste cliar-acter: aiiega-jectionto. had been chaste at the time of seduction. By answering to the merits, without demanding a more definite statement, and proceeding to trial, he accepted the averment as sufficient, and ought not now be permitted to complain.

II. The court advised the jurors, in estimating the damages to be allowed, to “consider, first, loss of time by plaintiff, the expense incurred for medical attendance while sick and the like; second, physical suffering; third, the mental anguish, loss of character and social stand-T„ value of. ing, and sense of shame caused by the seduction. ” Appellant contends that, though1 there was proof of loss of time, its value was not shown. The plaintiff’s avocation was that of school teacher. She had taught ten terms at a salary of from $3) to $31 a month, spending her vacations from May till September at the home of her parents. She was confined September 29, 1898, being sick twelve days, and, because of resulting ill health, had been unable to resume her work as teacher. Whether she had done anything else does not appear. If it be conceded, however, that, in the absence of some showing that she had been able to do nothing, or what she had earned since her sickness, before she might, recover for more than the loss of twelve days, the reasonable value of that time was to be mfefred from evidence that but for her confinement she would likely have been teaching school and hence the value of the time lost would be what she would have earned but for her misfortune.

In another respect the instruction is said to be erroneous. The only evidence relating to medical attendance was that of plaintiff, who testified th.at “Dr. Jensen, of 4. medicad attendance: allowance for. Arcadia, attended me. His bill was ten dollars. It has not been paid. ” From this the obligation to pay was to be inferred, and allowance, without actual payment, permissible. Varnham v. Council Bluffs, 52 Iowa, 698. But appellant says that “what the doctor charged does not furnish proof of what expense was reasonable.” Such items are rarely the subject of controversy in damage suits, and where the services rendered are of a nature likely to be familiar to the jury, and the charge unquestioned, its reasonableness may be safely left to their determination. As directly in point, see Flanagan v. B. &. R. Co., 83 Iowa, 639. See, also, Knapp v. Ry., 71 Iowa, 41; Watson on Damages for Personal Injuries, section 530; Murray v. Missouri P. R. Co., 101 Mo. 236 (18 S. W. Rep. 817, 2 Am. St. Rep. 61); Western Gas Const. Co. v. Danner, 36 C. C. A. 528 (97 Fed. Rep. 882). In Bowsher v. Ry., 113 Iowa, 16, relied on by appellant, an instruction was held erroneous because authorizing recovery for the amount paid for medical services, in the absence of any • proof of payment, and instead of their reasonable value. The case is not in point.

III. Fault is also found with the eighth instruction, on the ground that the jury might have become confused in attempting to follow it. That it is not subject to this 5 /consider- / ttrS^üÓisby jury’ criticism is manifest from reading it. We set ^ out in order to commend the practice not only of cautioning the jurors of their obligation to follow the instructions of the court, but of guarding them against being misled by giving tindue importance to one paragraph of the charge, to the neglect of some other on the same subject:

“You are to try the question in the case submitted to you upon the testimony introduced upon the trial, and upon the law as given you by the court in these instructions. The court, however, has not attempted to embody all the law applicable to this case in any one of these instructions, but in considerating any one instruction you must .construe it in the light of and in harmony with every other instruction given, and, so considering and so construing, apply the principles in it enunciated to all the evidence admitted upon the trial.” — AeeiRmed.