Morgan v. Ross

74 Mo. 318 | Mo. | 1881

Sherwood, C. J.

Plaintiff sued defendant for seducing his daughter, and recovered a judgment for $1,750.

I.

The evidence being sufficient to support the verdict» we will examine the correctness of the action of the circuit court in giving and in refusing instructions. The second instruction given for plaintiff is as follows: 2. “ The jury in computing the damages suffered by plaintiff, will take into consideration, not only the loss of the services of Nate Morgan by plaintiff, and the expense incurred by him by reason of her seduction, pregnancy and confinement, but will also take into consideration the anxiety and suffering of mind of plaintiff caused by the loss of the virtue of his daughter, the corrupting influence upon the morals of his other children, and the disgrace of his family, and will render their verdict accordingly.” It is insisted that there was error in giving this instruction.

An action for seduction has always been regarded an anomalous one; one sui generis, the damages in which “are given not only for the loss of service, but also for all that the plaintiff can feel from the nature of the injury. Therefore, if the plaintiff is the parent of the seduced, the jury may consider his loss of the comfort as well as the services of the daughter, in whose virtue he can feel no consolation, his anxiety, as the parent of other children, whose morals may be corrupted by her example.” 2 Greenleaf Ev., § 679. In such action, injury to the plaintiff’s feelings is to be taken into the account in computing damages; though not specifically alleged in the declaration, such damages being considered naturally consequent on the principal injury. Phillips v. Hoyle, 4 Gray 568. And the jury may also award the parent compensation for the disgrace and dishonor cast upon him and his family. Clark v. Fitch, 2 Wend. 461; Grable v. Margrave, 3 Scam. 372; Felkner v. Scarlett, 29 Ind. 154; Wilhoit v. Hancock, 5 Bush 567; Field on Dam., § 698; Rollins v. Chalmers, 51 Vt. 592; Badgley v. Decker, 44 Barb. 577, 589. It will be seen from the foregoing authorities that there was no impropriety in giving the above instruction, and if it be granted, as it must, that a parent is entitled to recover damages for all that he “ can feel from the nature of the injury,” such recovery may well embrace the anguish of mind resulting from the ignominy inflicted on himself and family.

ii.

Defendant’s fifth, instruction was this: 5. “ If the jury believe from the evidence that the defendant is the father of the child in question, and also further find from the evidence that the said Kate Morgan was seduced by defendant without any promise of marriage on the part of defendant, or further believe that said Kate, at or about or before the time of her seduction by defendant, had criminal communication with any other man or men, such facts may be taken into consideration in mitigation or reduction of damages.” There was no error in refusing it. It may be conceded that had the girl maintained criminal relations with other men prior to her seduction, this fact should have gone to the jury in mitigation of damages. But the trouble with this instruction is, that it makes no distinction between unchaste acts of the girl whether occurring previously or subsequently to her seduction by defendant. Now, we have held that, in actions of this nature, proof of the girl’s unchaste conduct after seduction, should not go to the jury; that it did not even tend to. mitigate the damages. McKern v. Calvert, 59 Mo. 243. If then evidence as to subsequent criminal intimacies with other men should be excluded altogether from the jury, certainly an instruction should be refused which leaves it doubtful whether the jury should regard such evidence in mitigation of damages. Had the instruction been limited to the period prior to the girl’s seduction by defendant, then it would have been proper to have instructed the jury as to mitigation.

III.

We come now to the damages awarded by tbe jury. Defendant claims they are excessive. In Tullidge v. Wade, 3 Wils. 18, Wilmot, C. J,, remarks: “Actions of this sort are brought for example’s sake, and although plaintiff’s loss in this case may not really amount to the value of twenty shillings, yet the jury have done right in giving liberal damages.” In vindictive actions, and so this action is now regarded, damages are given for the two-fold purpose of setting an example and of punishing the wrongdoer. It is believed that no case can be found in the books where the verdict in an action such as this, has been set aside upon the sole ground of awarding excessive damages. Peculiar considerations exempt a verdict in an action of this nature from the interference of the court, when such interference is sought to be bottomed alone on the excess of the recovery. The amount of the damages in such cases is considered a question peculiarly within the province of the jury, and as one which cannot from the very nature of things be estimated or computed upon any mere compensative or pecuniary basis; Taylor v. Shelket, 66 Ind. 297, and courts certainly would not interfere with a verdict in this, or in kindred cases, where there is no scale whereby the damages can be graduated with certainty, unless proof be introduced showing flagrant abuse of those powers which the law had confided to the intelligence and good sense of the jury. Sargent v. -, 5 Cow. 106; Stevenson v. Belknap, 6 Iowa 97; Gray v. Bean, 27 Iowa 221; Field on Dam., §§ 702, 881, and cases cited.

IV.

The remaining point to be considered is the alleged misconduct of the jury. There were affidavits on this subject pro and con. The lower court had better opportunities than we of coming tó a correct conclusion in this regard, and being unable to see that there has been any abuse of judicial discretion requiring our interference, we refuse to interfere, and affirm the judgment.

All concur.