McAlpin v. Gremmels

184 N.W. 4, 44 S.D. 373, 1921 S.D. LEXIS 114

• Court: South Dakota Supreme Court
• Decided: August 15, 1921
• Docket: File No. 4836
• Status: Published

Opinion

SMITH, -J.

Appeal from an order overruling a demurrer to plaintiff’s complaint. The amended complaint covers 24 printed pages of the brief. The substance of the complaint is that plaintiff, since February 17, 1919, has -been and is a single and unmarried woman, and at all times previous to her' acquaintance and association with defendant was a chaste and virtuous woman ; that since- the latter part of October, 1918, when they first became acquainted, the defendant frequently visited plaintiff at her residence in Sioux Falls, and by means of protestations and promises of love and affection caused her to love and trust him, and by promises of marriage in the near future, and by the furnishing and use of intoxicating liquors, all with intent to debauch the plaintiff — setting forth the acts and protestations of defendant at great length, and with nauseating detail — the plaintiff was persuaded and induced to have sexual intercourse with defendant, and thereby became and now is pregnant.

[1] A virtuous woman, married or unmarried, may be seduced by a man, single or married; but under the statutes of this state, only an unmarried woman may recover damages for her own seduction. Rev. Code 1919, § 2977; Smith v. Yaryan, 69 Ind. 445, 35 Am. Rep. 232; Greenman v. O’Riley, 144 Mich. 534, 108 N. W. 421, 115 Am. St. Rep. 466; Velthouse v. Alderink, 153 Mich. 217, 117 N. W. 76, 18 L. R. A. (N. S.) 587, 15 Ann. Cas. 1111; Love v. Masoner, 6 Baxt. (Tenn.) 24, 32 Am. Rep. 522; 24 R. C. L. 744, § 17.

[2,3] A married man may.be guilty of seduction, though the woman knew he was married. Marshall v. Taylor, 98 Cal. 55, 32 Pac. 867, 35 Am. St. Rep. 144; 24 R. C. L. 734, §§ 5, 6; Hawk v. Harris, 112 Iowa, 543, 84 N. W. 664, 84 Am. St. Rep. 352; Morgan v. Muench, 181 Iowa, 719, 156 N. W. 819. The complaint alleges and the demurrer admits that plaintiff, prior to her association with defendant, was a chaste and virtuous woman. No discussion of that proposition is necessary at this time. But under the statute only an unmarried woman may maintain an action for damages for her own seduction. Gover v. Dill, 3 Iowa, 337; Dowling v. Crapo, 65 Ind. 209.

The complaint fails to allege that plaintiff was unmarried at the time the alleged seduction was accomplished, and for that reason does not state a cause of action.

The order n-f the trial court overruling the demurrer is reversed.