7 Or. 277 | Or. | 1879
By the Court,
This was an action brought by respondent against the appellant for the seduction of his daughter. The complaint alleges substantially: “That at the time, hereafter mentioned, one Flora Parker, the daughter of the plaintiff, was of the age of seventeen years. That on or about the ■- day of June, 1876, and at divers times since, in the county and state aforesaid, the said defendant, well knowing the said Flora Parker to be the daughter of the plaintiff, then and there wrongfully and unlawfully contriving and intending to injure, disgrace, and distress, and wound the feelings of the plaintiff and deprive him of her service and assistance, and of the society and comfort of his said daughter, and to dishonor the plaintiff and his family, did wickedly, willfully and maliciously, and without the privity or consent of the plaintiff, entice and persuade the said Flora Parker to have illicit intercourse with him, the said defendant, and
The answer contains a specific denial of all the material allegations in the complaint.
Before the answer was filed the defendant moved the court to require the plaintiff to make his complaint more specific by stating the amount of money he expended for medicine for his daughter; and how much trouble and expense he had been put to by reason of her alleged pregnancy. The court overruled the motion, and this ruling is now assigned as error by the appellant.
The plaintiff having failed to specify the amounts of money expended, by giving the items of the account, all the court could do in the premises was to preclude him from giving evidence thereof. (Civ. Code, sec. 82.)
As it does not appear from the bill of exceptions that any evidence was offered on the trial to prove the expenditure of any money for medicine, etc., no error was committed by the court.
The next two assignments will be considered together. They are as follows: That the court erred in permitting plaintiff's counsel to ask Flora Parker this question: ‘ ‘ Are you the daughter of the plaintiff?” and in receiving her answer thereto that she was; that the court erred in permitting the plaintiff’s counsel to ask him this question: “Is Flora Parker your daughter ?” and in permitting him to answer the same that she was.
Both of these alleged errors are based on the theory that
We think the complaint sufficiently avers that Plora Parker is the daughter of the plaintiff. The allegation is: “ That at the time hereinafter mentioned one Plora Parker, the daughter of the plaintiff, was,” etc. This is in effect the same as if it stated “that Plora Parker, who is the daughter of plaintiff,” etc. In the grammatical construction of the sentence these two words are understood, and their omission in the allegation is a mere ellipsis, which does not destroy its meaning or its effect. There was no error in either of these rulings by the court.
The next assignment is, that the court erred in permitting the counsel of plaintiff to ask Sarah Parker, the wife of plaintiff, this question: “What did Plora Parker tell you as to her feelings or the state of her health at the time ?” and her reply that she had felt no motion. There is an allegation in the complaint that Plora Parker was then pregnant, and we think the question of the mother and the answer of her daughter as to her condition and state of health under the circumstances, were proper to go before the jury as original evidence. It comes within the rule laid down in Aveson v. Lord Kinnaird, 6 East, 188; 1 Greenl. Ev. sec 102.
The next two exceptions were taken to the rulings of the court in permitting a witness to give evidence as to the good character and standing of the families of both plaintiff and defendant in the community in which they lived.
We think the respondent had a right to show the good character of his own family, for the seduction of one member of it lessened the social standing of all; and the jury were justified in awarding them compensation for the destruction of his domestic peace as well as the disgrace cast upon his family. (McAulay v. Birkhead, 13 Iredell, 28; Kendrick v. McCrary, 11 Geo. 603.)
Nor do we consider that the court erred in permitting the witness to testify as to the good character and standing of appellant’s family. It was competent for the respondent to show that while it was his duty to be watchful over the
The next assignment is that the court erred in permitting the respondent to ask the deputy sheriff this question: “ State whether you went after the defendant to arrest him for the offense of seducing Flora Parker, and where you found him?” and in permitting the witness to answer that he “arrested him on the beach, between Umpqua and Empire City.” The object of this testimony was to show that when the charge of seduction was preferred against the appellant he was making an effort to escape. In criminal cases the flight of the accused, to which no proper motive can be assigned, is considered as some evidence of his guilt; and we do not see why the same rule should not apply in civil actions, which are quasi criminal in their character.
The last- assignment of error is that the court erred in charging the jury as follows: “A promise of marriage by the defendant, made to Flora Parker, or any influence exerted by him over her, such as gaining her affections or acquiring influence over her, or persuading her, which had a tendency to draw her from the path of virtue, would be sufficient, if followed by illicit intercourse, to constitute seduction, if the jury believe that she was thereby constrained to yield to his desire.”
It does not appear by the bill of exceptions whether any evidence was offered or admitted to prove a promise of marriage made by the appellant to Flora Parker. The presumption is, however, that such evidence was received, otherwise the court would not have referred to it in the charge to the jury, and if so, was it properly admitted ?
The courts of New York have decided that in an action by a father for the seduction of his daughter, evidence can not be given that the defendant made a promise of marriage to her, for if this were permitted, damages for a breach of
Although in that state it is competent to show that the defendant paid the daughter such attentions as are usual when the addresses are of an honorable character. (Brownwell v. McEwen, 5 Denio, 367.)
In Pennsylvania, Virginia and Indiana, the courts have decided differently, and in those states it is held that in an action by a father for the seduction of his daughter he may prove that the defendant promised to marry the daughter, and by that means succeeded in debauching her. The father, however, is not entitled to recover in such action'any part of the damages which belong to the daughter by reason of the breach of the contract of marriage. (Phelin v. Kenderdine, 20 Pa. St. 354; White v. Campbell, 13 Gratt. 572; Lee v Hefley, 21 Ind. 49.)
It seems to be now settled in this country that such evidence is admissible. (2 Greenl. Ev., sec. 579; 2 Hil. on Torts, 517, sec. 10.)
And we think it would be proper in such an action as this for the plaintiff to prove that the defendant promised to marry his daughter, when by reasons of such promise he succeeded in seducing her. It is urged by the appellant that as no promise of marriage is alleged in the complaint to have been made, no evidence to prove it was admissible on the trial. This proposition we regard as untenable, for evidence of a promise to marry could only be offered as one of the means by which the seduction was accomplished, and it is not allowable to set forth the evidence in a pleading.
The record in this case does not disclose the fact whether any testimony was offered on the trial tending to prove that the appellant promised to marry Flora Parker, and we have but an isolated sentence from the charge of the court, taken from the context, which ought to have been included in the bill of exceptions. We are therefore left to infer that evidence of this kind was offered and admitted by the court, otherwise no allusion would have been made to it in the charge to the jury. When an instruction is given by the
