Bye v. Isaacson , 42 N.D. 417 ( 1919 )

Robinson, J.

This' is an appeal from a judgment on a verdict in favor of the plaintiff for $1,500. It is a civil action to recover actual damages against the defendant on the ground that by force and a strong arm he assaulted her, pulled her onto a bed, overcame her feeble powers of resistance, forced his seed upon her, causing her to endure the pains of childbirth and to have a bastard child with no means of supporting it. At the time of the assault the plaintiff was a domestic in the employ of defendant, and to some extent she was under his care and guardianship. He was bound to protect her .from abuse and outrage. On July 7, 1915, he grabbed her while she vras clearing the table after supper, pulled her into the bedroom, held her over the arms, saying he wanted to have intercourse with her. .She said she would not allow it. He lifted her onto the bed.

Q. Why did you not get away from him ?

A. I could not, he held me so tight and strong.

Then he lifted her clothes with-his hands and shoved his hand between her limbs. He used a hand and foot to pry her legs apart. She tried all she could to get away from him, but he forced himself onto her, forced his way and accomplished his purpose. She tried to get away from him, to wriggle away from him, but he held her so fast she could not. She tried-to get loose, but she could not.

Q. What did you do while he was doing it ?

A. I tried to get away from him.

Such is the testimony which the jury found to be true. There was no fondling, no love-making, no kissing and caressing. He just grabbed her, pulled her onto the bed, held her arms, and quickly accomplished his purpose. It was no Julia and Don Juan affair. It was simply an act of brutal force. A very whore would not-consent to such treatment.

In such a case there is no reason why the court should apply the old rules of criminal prosecutions for rape. The question of rape or no rape is in no way material to this case. So far as the complaint charges a common-law rape it may well be considered as an exaggeration and as surplusage. Actual rape by force and violence is in no manner essential to the plaintiff’s cause of action. The complaint does charge, and the evidence does show, and the jury has found that the defendant grabbed and assaulted the plaintiff, pulled her onto the bed, and with a strong hand overcame her feeble power of will and resistance; that he thrust his seed upon her, caused her to suffer the pains of childbirth and to bring into the world a fatherless child without any means of supporting it. Manifestly the plaintiff has suffered a great wrong, for which she has a legal and constitutional right to remedy by due ■process of law. To throw her out of court and to deny her any remedy because she did not resist with greater force, when all resistance in her power was obviously futile, that were a travesty on justice and a reproach to the courts. The verdict is manifestly righteous, just, and moderate. It is only for actual damages occasioned by a great wrong. Hence the judgment is affirmed.