Knight v. Wilcox

18 Barb. 212 | N.Y. Sup. Ct. | 1854

By the Court, T. R. Strong, J.

The evidence on the first trial of this case was substantially the same as on the recent trial thereof,- in respect to loss of services by the plaintiff. Upon the motion to set aside the nonsuit granted on the first trial, we held, as to the point of loss of services, that pregnancy and the birth of a child were not essential to the right of action, and that it was sufficient if illness of the daughter, whereby she was unable to labor, had been produced by shame for the seduction. (15 Barb. 279.) In addition to the references in the opinion then delivered, in support of the first branch of this doctrine, I cite Briggs v. Evans, (5 Iredell, 16,) Sedg. on Dam. 2d ed. 543. The question now presented, in regard to loss of services, is whether, if the illness and consequent inability to serve were produced by exposure of the seduction, and would not have occurred but for the exposure, it was a loss which would sustain the action. It is claimed on the part of the defendant that he is not legally chargeable for a loss resulting from the exposure, for the reason that it was too remote. I am satisfied, however, that this position is not tenable. The exposure and the loss to the plaintiff proceeding from it must.be regarded as incidents of the wrong, as legitimately and directly connected with it. No illegal act intervened between the seduction and the loss; the exposure was justifiable, and unless the defendant is responsible for the lossj the plaintiff has no remedy. It is true that the loss in this case was very slight, but the same principle applies that would be applicable if a long and severe sickness, occasioning great expense, or a total deprivation of reason, had been produced by the same cause. It is just that a seducer should be responsible for such consequences, and I think he is so, by law. In Keenholts v. Becker, (3 Denio, 346, 352,) which was an action by a husband for slanderous words not actionable per se, spoken of the wife, whereby he had sustained special damage. Beardsley, J., says, “ Where slanderous words are repeated innocently, and without an intent to defame, as under some circumstances they may be, I do not see why the author of the slander should not be held liable for injuries resulting from it as thus repeated, as he would be if these injuries had arisen directly from the words as spoken by himself. A different rule would perhaps govern, where the repetition was itself slanderous, and the injurious consequences arose, in part at least, from the second slander.” In Olmsted v. Brown, (12 Barb. 657,) which was a case similar to the last, Mullett, J., after stating that there may be intentions and occasions which will justify the repetition of slanderous words, says, “Where they do occur, the repetition of slanderous words, with the proper intentions, may be considered the ordinary or necessary and legitimate consequence of the uttering by the first slanderer, and render him accountable for all the injuries occasioned by such legitimate repetition.” The views advanced by those teamed, justices, appear to me to be in point upon the question under consideration. For other cases bearing on the question, see Sedg. on Damages, 2d ed. 7-9, and subsequent pages, and cases there cited; also 542, 543.

The instruction to the jury that they might, on the question of damages, take into view the wounded feelings of the plaintiff; and might not only recompense him, but punish the defendant according to the aggravation of his offense; and his refusal to charge that vindictive damages could not be recovered, were, I think, correct. (Bartley v. Richtmyer, 4 Comst. 38. Sedg. on Damages, 2d ed. 542.) And the refusal to charge as desired on the other point, further than was done, was not, I think, erroneous.

[Cayuga General Term, June 5, 1854.

In my opinion, no substantial error in the admission or rejection of evidence which calls for a new trial was committed. .The testimony given of the defendant’s declarations, as to the pecuniary circumstances of his father, on the plaintiff being permitted to prove the pecuniary circumstances of the defendant, was not within the offer and decision made, and the defendant should have moved to have it stricken out if he desired to object to it. Besides, it was but a repetition of what the witness had before stated without objection. No evidence of the defendant’s pecuniary circumstances was given. In respect to the offer to prove by Mrs. Belden that the plaintiff was told that the character of Miles, who was in the habit of visiting at the plaintiff’s house frequently, was bad in regard to chastity, I think the evidence was admissible, but that it is apparent no harm was done by its rejection. The defendant was permitted to go fully into proof by that witness and others as to the reputation of Miles, and his intimacy at the plaintiff’s house, and as to the knowledge of the plaintiff of his bad character. There was no proof of any association or conversation at any time prior to the seduction complained of, between him and the daughter, nor of any immoral or improper act on his part at the plaintiff’s house.

The damages appear to be high, but not so excessive as to indicate passion, partiality, prejudice, or corruption, on the part of the jury. (5 Cowen, 106.)

Motion for a new trial denied.

Johnson, T. R. Strong and Welles, Justices.]