Litton v. Woliver

126 Va. 32 | Va. | 1919

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The single question we need to pass upon, among those raised by the assignments of error, is the following:

[1] 1. Was the trial court in error in instructing the jury that the plaintiff was entitled to recover, because of mere sexual intercourse of the defendant with his daughter, not accomplished by seduction under the promise of marriage or by other artifice, damages for wounded feelings and affections, etc., and punitive or exemplary damages, as set forth in the instructions above copied, in addition to compensatory damages for loss of the services of the daughter and for the expenditures alleged in the declaration?

[2,3] This question must be answered in the affirmative. The declaration is in proper form for a declaration alleging seduction at common law. 1 Barton’s Law Pr., pp. 401-2; 4 Robinson’s Pr., pp. 625-6; 2 Greenl. on Ev. (14th ed.), sec. 571; Fry v. Leslie, 87 Va. 269, 12 S. E. 671. The allegation in the declaration that the defendant “debauched and carnally knew” the daughter is an allegation not merely of sexual intercourse, but of such intercourse accomplished by seduction—that is, by aid of enticement through “arts, promises or deception.” (State v. Whalen, 98 Iowa 662, 68 N. W. 554.) That is to say, “to debauch” means to seduce and violate a woman. Koenig v. Nolt, 2 Hilt. (N. Y.) 323, 329. Or, as defined in the Century Dictionary, “debauch” means “to corrupt with lewedness; bring to be guilty of unchastity, deprave, seduce, as to debauch a woman.” But the instructions in question fall short of the allegation of the declaration on the subject under consideration. They allow recovery of punitive damages and damages for wounded feelings and affections, etc., as injuries resulting from the mere sexual intercourse with the daughter, taking place without any seduction.

[4] It is true that loss of services is at common law the basis of the action for seduction, and a plaintiff is entitled to maintain such an action and recover for loss of services, and for incidental expenses incurred by him, resulting from the mere act of sexual intercourse of the defendant with the daughter (35 Cyc. 1304; 25 Am. & Eng. Ency. Law (2nd ed.), p. 191), the statute in Virginia (sec. 2896 of the Code) dispensing with the need of proof of actual loss of services has not changed that rule. Lee v. Hodges, 54 Va. (13 Gratt.) 726; but, as said in the work last cited (25 Am. & Eng. Ency. Law), at p. 218: “It is, however, well settled that in cases where sexual intercourse has taken place without seduction—that is, without the aid of flattery and artifice—no recovery can be had by the father beyond compensation for the loss of services and reimbursement of incidental expenses.” See also to same effect 35 Cyc., p. 1326.

The only authority cited for the- plaintiff which in the holding sustains his contention that other than compensatory damages may be recovered in a case of mere sexual-intercourse—that is, .of such intercourse not accomplished by seduction—is that of Barbour v. Stephenson (U. S. C. C. Dist. of Ky.), 32 Fed. 66. The report of that case gives only the charge of the trial judge. There is frequent reference in the charge to the case being one of “seduction,” to the “person seduced,” “the wrongful act of seducing her,” “such an injury,” etc. The only issue in the case seems to have been over the identity of the person who seduced the daughter and not over the question of whether the intercourse was accomplished by seduction. It is true, however, that, in the course of the charge, language is used to the effect that seduction was not necessary to sustain a -recovery of damages because of the “wounded feelings” of the plaintiff, but no authority is cited to sustain that proposition, and, as we have seen above, the case is in direct conflict with the holding of all the other authorities on the subject which have been called to our attention. And in our view such case is on this point unsound in principle and we cannot give it our approval.

The case of Lipe v. Eisenlerd, 32 N. Y. 229, cited for

plaintiff, was one of seduction so far as the report shows, and what is said in the case as reported assumes it to have been such a case, referring to the “seduction,” etc. And there was no issue in the case involving the question we have under consideration, nor was there any deliverance of the court, even as dictum, on such subject. The same is true of the cases of Lee v. Hodges, 54 Va. (13 Gratt.) 726; White v. Campbell, 54 Va. (13 Gratt.) 573; Clem v. Holmes, 74 Va. (33 Gratt.) 722, 36 Am. Rep. 793, and Fry v. Leslie, 87 Va. 269, 12 S. E. 671, which are cited for the plaintiff.

Since there was testimony for the defendant in the case before us which, if credited by the jury, was sufficient to have shown that he was not guilty of the seduction charged in the declaration, all consideration of which evidence was taken from the jury by the instructions in question, the giving of such instructions constitutes reversible error.

Therefore, the case must be reversed and a new trial granted to the defendant, to be had not in conflict with the views expressed in this opinion.

Reversed.