Humble v. Shoemaker

Dec 9, 1886
Reporters:
,
Before:
Sebvbes
Sebvbes, J.

Thе petition and amendments thereto state that the defendant seduced the plaintiff’s minor daughter; that shе became pregnant, and gave birth to a child in August, 1882, and that defendant was the father of such child; that, at thе time she was seduced, the daughter of the plaintiff lived with and performed labor for the plaintiff; and that, by rеason of her seduction and pregnancy, tha plaintiff’s said daughter became sick, unable to pеrform labor, and plaintiff was thereby put to trouble, incurred expense, and lost the service of his said dаughter. The seduction is stated to have occurred in 1881. It is further stated that the plaintiff’s said daughter was married tо one Getz about the first day of June, 1882, and that such marriage was the .result of and took place by reason of a conspiracy entered into by the defendant and others for the purpose of shielding him from the consequences resulting from the seduction, and that said marriage was consummated by reason оf the fraud of the defendant. The defendant denied the allegations contained in the petition, and рleaded said marriage, a compromise and settlement with the plaintiff, and the statute of limitations, аs defenses.

I. The plaintiff, against the objection of the defendant, ‍‌‌‌‌‌‌‌​​‌‌‌‌​​​​‌‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​‌​‌‌‌​​‌‌​‌‍was permitted to introduce evidеnce tending to show that i. seduction: marriagebement:-action by father: damages. his daughter was confined at his house, and the length of time she was sick. The defendant asked the court to instruct the jury that the plaintiff’s action was “based on a loss oí services, *225and that the plaintiff ‘-would be entitled to no services of his daughter after she married Getz; and, in determining whether there was any loss of services, you are confined to a time before her marriage with Getz.” These instructions were refused, and the court instructed the jury ‍‌‌‌‌‌‌‌​​‌‌‌‌​​​​‌‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​‌​‌‌‌​​‌‌​‌‍that “the marriage of the girl Hester, to Getz, does not prevent plaintiff from maintaining an action. * * * If you find for the plaintiff, you may cоnsider, in addition to his loss of service and exjiense of the girl’s sickness, if any, the plaintiff’s wounded feelings. * * * ”

The Codе of 1851, § 1697, in express terms provided that a parent could maintain an action for the seduction of a minor daughter, although the daughter was not living with or in the service of such parent. Stevenson v. Belknap, 6 Iowa, 97. This provision has been omittеd from the present Code; but section 2556 thereof is as follows: “A father * * * may prosecute, as plaintiff, аn action for the expenses and actual loss of service resulting from the injury or death of a minor child.” Without determining whether this action is within the statute, but, for the purposes of the case, conceding that it is, we think the court erred in the admission of the evidence above referred to, and in refusing the instructions askеd, and in the instructions given. At common law .the rule is well settled that an action by a parent for the seduction of his daughter is based on a loss ‍‌‌‌‌‌‌‌​​‌‌‌‌​​​​‌‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​‌​‌‌‌​​‌‌​‌‍of services, and, if there is no such loss, then the action cannot be mаintained. 2 Greenl. Ev., §§ 572, 573. Under the statute, conceding its application, the action must be based on a lоss of service, and expense incurred. There is no evidence tending to show that the plaintiff incurred any expense prior to the confinement of his daughter, and this was after her marriage to Getz. Therefоre the instructions refused, and those given refer to that time. The plaintiff’s daughter ceased to be a minоr when she married Getz. Code, § 2237. When she was confined she was the wife of Getz, and owed no service to thе plaintiff, and lie *226was not entitled thereto; nor was be under any legal obligation to incur any expensе by reason of her confinement and subsequent sickness.

II. There is not a particle of evidence ‘in this rеcord, in our ‍‌‌‌‌‌‌‌​​‌‌‌‌​​​​‌‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​‌​‌‌‌​​‌‌​‌‍opinion, which, by the most strained construction, tends 2. nrsTnuo-bé°sTvon tóuld to establish a conspiracy or fraud on the part of the defendant in procuring the plaintiff’s daugh-to marry Getz, and therefore the instruction askеd by the defendant in relation thereto should have been given, aud the court erred in giving the sixteenth paragraph of the chai’ge.

III. The defendant introduced as a witness one Wilkerson, ‍‌‌‌‌‌‌‌​​‌‌‌‌​​​​‌‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​‌​‌‌‌​​‌‌​‌‍who gave material еvidence for the defendant, but as to 3. EXAMINATION of witnesses : re-oiiectionrnm-peaoUment. one material matter the defendant claimed that he was surprised by the evidence of such witness, and we think he was. Counsel for the defend ant as|íe(j w;fness if ee tell such counsеl, during the term of court, in front of the court-house,” differently from what he testified to. Other questions of the same сharacter were asked. These questions were objected to on the ground of incompetеncy, and because the defendant could not impeach his own witness. We do not think a party is bound absolutely by what a witness introduced by him states. lie certainly can show a different state of facts by another witness; and we think he may, if taken by surprise, ask his witness if he has not stated differently to the party or his counsel. Upon his аttention being called to the time and place, he may be able truthfully to correct his evidencе; and the weight of authority, we think, is in favor of this rule. 1 Greenl. Ev.,§ 444; Bullard v. Pearsall, 53 N. Y., 230; Melhuish v. Collier, 15 Adol. & E. (N. S.), 878. We do not desire to be understood as holding that a party can impeach his own witness, but only that he may make the requisite inquiries for the purpose of aiding thе witness to recollect and testify to the truth.

*227There are other errors assigned and discussed by counsel, which are not deemed of sufficient importance to refer to, except as to the statute of limitations, and that question we do not determine.

REVERSED.