52 Wis. 612 | Wis. | 1881
The following opinion was filed June 4, 1881:
It is urged by counsel that the affidavit set forth was strictly in compliance with rule XX of the circuit court, and hence that the defendant was entitled to a continuance as a matter of right. By that rule, the affidavit was required to show, among other things, that the defendant had used due diligence to prepare for trial, and the nature and kind of diligence used. Of course, the court was required to pass upon the sufficiency of such statements. In view of the circumstances of the case, and the continuances already obtained by the defendant, we are not prepared to hold that it was error to deny the motion. It is conceded that Katie was only a few months over fifteen years of age at the time of intercourse, and that she was then, and had for some months been, stopping at the house of the defendant. It must be presumed that a little girl of such tender years would have the watchful care of uncle, as well as aunt, in the absence of guilt on his
Katie was at the defendant’s house from April 20, 1879, until three weeks of the time of her delivery, of which the defendant must necessarily have been informed, and yet he states in his affidavit that “ he commenced making inquiries and investigations concerning the chastity ” of Katie immediately after this action was commenced, which was August 7, 1879, and although ascertaining conduct on her part which might warrant suspicion as to her purity of character, yet he was unable to ascertain that she had had intercourse with any person whatsoever until informed by John Brennan, March 17, 1880, more than eight months after the child was born. In view of the fact that Katie was at the defendant’s at the time the intercourse must necessarily have taken place, and of the prior continuance and change of venue, the story would seem to be at least suspicious. It is difficult, moreover, to comprehend what motive Brennan could have, even had he committed the offense, to voluntarily make disclosure of his own criminality and disgrace, to one who was already implicated and being prosecuted, while he himself was unsuspected. Had he actually done so, and had the defendant, John CrooJce, in fact been innocent of the offense, it would seem that his own sense of duty to himself, as well as to the father of the little girl, would naturally have induced him to investigate the truth of Brennan’s statement, with the view of bringing him to justice and vindicating himself. But nothing of the kind is disclosed; on the contrary, if the statement was ever made, he seems to have kept it to himself for more than fifty days, apparently so that it would not be investigated. Besides, if Brennan did make
It was suggested by counsel, on the argument, that had a continuance been granted the defendant might have been able to procure the deposition of Brennan to be taken in some other state, where the fear of his own prosecution would have been less imminent. But as the giving of such testimony would at most have been a matter of favor to the defendant, he should have sought to procure it in the way suggested during the fifty-four days between the alleged disclosure and the sitting of the court. The secrecy and non-action of the defendant for so long a period, in a matter so vital to his own reputation and standing as a man, naturally excite grave doubt as to whether any such disclosure was ever made; although it may be that Brennan promised to testify as stated, but as the time approached his heart apparently weakened, and he made his escape. We are clearly of the opinion that there was no error in denying the application for a continuance.
It is urged by counsel that there was no evidence tending to show that Katie was in the service of her father at the time of the intercourse. She was at that time only fifteen years of age. There is no pretense that the defendant had any right to her service, or to detain her from her father against his wish. She was merely stopping with the defendant and his wife, at their request and for their pleasure, at a time when she was not needed by her father and mother, as she had done from time to time during the three years previous. There is evidence that she worked at her father’s when at home. "We have
In Grinnell v. Wells, 7 M. & G., 1033, the daughter had permanently left her father, with no intention of returning, and there was no pretense of loss of service alleged or proved. Tindal, C. J., said: “The declaration in this case contains no allegation of the loss of the service of the daughter.”
In Carr v. Clarke, 2 Chitty, 260, the father had moved away from his former home, leaving his daughter, who was under age, in the service of another; and a nonsuit was grafited on the ground that there was no evidence tending to show an intention to return to the father. Bayley, J., said: “The cases go upon the express ground that the relation of master and servant must exist, but the evidence may be very slight. The parties must stand in the relation of master and servant, although a temporary absence may not be sufficient to destroy that relation.”
In Bartley v. Richtmyer, 4 N. Y., 38, a step-father sought to recover on account of intercourse with his step-daughter, about nineteen years of age, and who left his house about t.wo years before, with no intention of returning; and it was held, in an able opinion by Bronsoir, C. J., that “ the action for seduction is founded on the loss of service, and in order to maintain it there must be an actual or constructive relation of master and servant. And in order to constitute the constructive relation, the master must have the right to command the services of the female at his pleasure. The relation exists constructively between a father and his infant daughter, although the latter is actually in the service of another, provided the former has a right to reclaim her services at any time. But a step-father is not, as such, entitled to the services of his step-daughter, and is not liable for her support.”
In White v. Nellis, 31 N. Y., 405, cited by counsel for the
In Martin v. Payne, the minor daughter, with her father’s consent, went to live with her uncle, for whom she worked when she pleased, under an agreenient that he should pay her for her work, but there was no agreement as to her remaining any definite time; and it was held that the father could recover, notwithstanding she had no intention of returning to her father’s had not the misfortune happened. Spencer, J., said: “She was his servant de jure, though not de facto, at the time of the injury; and, being his servant de jure, the defendant has done an act which has deprived the father of his daughter’s services, which he might have exacted but for that injury.”" Page 390.
In Clark v. Fitch it was held that the father might maintain the action, although the minor daughter had left her father with his consent, and was defacto the servant of another at the time of the injury, and he had relinquished all claim to
In Mulvehall v. Millward, the minor daughter left her father’s and was injured while in the employ of the defendant, where she remained until after her confinement and recovery, and there was no proof that her father took care of or expended anything on her account during her sickness; but it was held that he could recover.
In Furman v. Van Sise it was held that a widowed mother could recover, although her minor daughter was at the time of the injury at work for the father of the defendant for wages, to be applied to her own use, under an agreement with the mother. The other cases cited all go to the extent of holding that the father could recover if he had not parted with the right to control his minor daughter’s service.
Here the question of service was fairly submitted to the jury, upon the principle-of the authorities cited, and there was sufficient evidence to sustain the verdict in this respect.
It is urged by the counsel for the defendant that the charge left the jury free to find punitive damages, whereas they should have been confined to compensatory damages.
In Klopfer v. Bromme, 26 Wis., 372, the right of punitory damages in such a case does not seem to have been questioned. In Bass v. C. & N. W. Railway Co., it was held that punitory damages might be allowed to the plaintiff for being put out of. a ladies’ car by a brakeman on the defendant’s train, and $2,000 assessed as such damages-were sustained. 42 Wis., 654; S. C., 39 Wis., 636.
Edmondson v. Machell, 2 Term Rep., 4, was an action for loss of services by reason of an assault and battery to a servant, and the action was likened by the trial judge, in his charge to the jury, to an action by a father for deflouring his daughter, in which large damages had often been given, and that upon the whole case the jury had a right to give such
Bedford v. McKowl, 3 Espinasse, 119, was an action by a mother for the loss of service of her daughter by reason of her seduction, tried before Lord Eldon, just before his appointment as lord chancellor; and, among other things, he said: “In such case, I am of opinion that the jury may take into their consideration all that she [the mother] can feel from the nature of the loss. They may look upon her as a parent losing the comfort as well as the service of her daughter, in whose virtue she can feel no consolation, and as the parent of other children, whose morals may be corrupted by her example.”
Andrews v. Askey, 8 Car. & Payne, 7, was an action by a widow for the seduction of her daughter, and Tindal, C. J., inter alia, said: “ You are not confined to the consideration of the mere loss of service, but may give some damages for the distress and anxiety of mind which the mother has felt. If you find for the plaintiff, you will take into consideration the situation in life of the parties, and say what you think, under all the circumstances of the case, is a reasonable compensation to be given to the mother.” See Bennett v. Allcott, 2 Term, 167; Berry v. Da Costa, L. R., 1 C. P., 331.
In Ingersoll v. Jones, 5 Barb., 661, an action was brought for loss of service of an adopted daughter and servant, and, on
Knight v. Wilcox, 18 Barb., 212, was an action for loss of service by reason of the seduction of a daughter, and it was held, per Steong, J., that “ it was proper for the judge to charge that on the question of damages the jury may take into viev^ the wounded feelings of the plaintiff, and may not only recompense him, but punish the defendant according to the aggravation of his offense. A father may recover vindictive damages for the seduction of his daughter.” That case was subsequently reversed in the court of appeals on the ground that there was no sufficient proof of service; but the question of punitive damages was not considered. 14 N. Y., 413.
In Badgley v. Decker, 44 Barb., 577, the daughter was twenty-five years of age, and it was held that “ the plaintiff is not restricted to compensatory damages; and it is not erroneous for the judge to charge the jury that, in estimating the amount, they may take into consideration the wounded feelings of the plaintiff, and the disgrace to the family.” This ruling was based upon the decision in Knight v. Wilcox, 18 Barb., 212.
In Damon v. Moore, 5 Lansing, 454, it was held at general term, per Porter, J., that it was not error to sustain a verdict giving the mother exemplary as well as compensatory damages ($1,500) for loss of service on account of the defendant having debauched and carnally known her daughter and servant, whether the action was in the form of trespass or case, or brought about by seduction or force.
In Lipe v. Eisenlerd, 32 N. Y., 229, the daughter was twenty-nine years of age, and the father obtained a verdict of
In Applegate v. Ruble, 2 A. K. Marshall, 128, a verdict in such case for $1,800, including exemplary damages, was sustained.
Fox v. Stevens, 13 Minn., 272, was a case of this hind; and McMillas, L, in speaking for the court, said: “ In cases of wilful wrongs it is settled by authority that exemplary damages may be given.We see no reason why this case does not come within the rule.” Page 277.
Phelin v. Kenderdine, 20 Pa. St., 354, was a case like this; and Lewis, J., speaking for the court, said: “Although the action by a parent for the seduction of his daughter has its technical foundation in the loss of his daughter’s services, it is well settled that proof of the relation of master and servant, and of the loss of service by means of the wrongful act of the defendant, has relation only to the form of the remedy, and that, the action being sustained in point of form by the introduction of these technical elements, the damages may be given as a compensation to the plaintiff, not only for the loss of service, but also for all that the plaintiff can feel from the nature of the injury.” Page 361. He also approvingly adopts the following language from the supreme court of the United States, as applicable to that case: “ In actions of trespass, and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon the defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff.” Id. See Day v. Woodworth, 13 How., 371.
It is true, there are but few reported cases where the jury were directly charged, as here, that they might not only com
This also disposes of the objection to the evidence as to the defendant’s pecuniary circumstances. It was just that kind of evidence that was held properly admissible in Applegate v. Ruble, supra, and a verdict for one-tenth the amount of the defendant’s property was sustained. So, also, White v. Murtland, infra. Courts are liberal in such cases to allow evidence to show the circumstances and conduct of the respective parties, not only at the time of the alleged injury, but before and after, as bearing upon the question of damage. Klopfer v. Bromme, 26 Wis., 372; Hewit v. Prime, 21 Wend., 79; Davidson v. Goodall, 18 N. H., 423; White v. Murtland, 71 Ill., 250; Blagge v. Ilsley, 127 Mass., 191; Kennedy v. Shea, 110 Mass., 147.
The counsel insists that the court should have instructed
In Kennedy v. Shea, supra, it was held that “ it is no objection to the maintenance of an action for seducing the plaintiff’s daughter, that the sexual intercourse between the daughter and the defendant was had by force.” See also Damon v. Moore, supra.
By the Court.— The judgment of the circuit court is affirmed.
A motion for a rehearing was denied September 27, 1881.