Phelin v. Kenderdine

20 Pa. 354 | Pa. | 1853

The opinion of the Court was delivered, by

Lewis, J.

The distinguished advocate of the principle, that damages in actions of tort are, in all cases, to be limited to mere compensation for the injury sustained by the plaintiff, admits that the doctrine of exemplary damages “finds more countenance from the bench in Pennsylvania than in any other quarter 2 Greenl., § 253, note. A long course of practice, evidenced by numerous decisions, reported and unreported, has settled the doctrine in this state so firmly that it would be a waste of time to discuss the question. Nor can it be said that our state Courts are singular in this respect. We do but adopt the language and the doctrine of the Supreme Court of the United States, when we declare that “ it is a well-established principle of the common law, that, 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 a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff:” Day v. Woodworth et at, 13 Howard’s U. S. Rep. 371.

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 2 Greenl. § 579.

In order that a proper judgment may be formed of the nature of, the injury, all the circumstances attending the seduction must necessarily be laid before the jury. To stop short of this would be “ a lame and impotent” effort to execute the purpose for which the courts of justice originally applied this form of action to cases of this kind. The object was two-fold: the redress of the injury, and the punishment of the wrongdoer. The means must be appropriate to the end. It has been held that the marriage of the daughter to the defendant after the birth of the child, although no bar to exemplary damages, is nevertheless a circumstance which may mitigate them : 2 Harris 285. And it has likewise been determined that the defendant may prove that the plaintiff was guilty of gross misconduct, in permitting the defendant to visit his daughter as a suitor, after he knew that he was a married man: 1 Peake 240; 2 Gaines 292, 219; 2 Greenl. § 578. On the other hand it has been decided, that the plaintiff may give evidence of the terms on which the defendant visited his house, and that he was paying his addresses upon the promise, or with intentions of marriage: 5 Price 641; 3 Wils. 18; 3 Steph. N. P. 2356; 2 Stark. Ev. 732, note t; 2 Greenl. § 579. If the promise of marriage is not to enter into the case, how could it be material for the defendant to show even a tardy performance of it after the injury had been inflicted? or to prove that his visits as a suitor were permitted by the parent after the latter knew of the defendant’s prior marriage to another ? If the daughter was so loose as to yield to one whose avowed object was illicit gratification, or if the parent was so regardless of his duty, and of her honor, as knowingly to expose her to such temptations, it is clear that the proof of such circumstances would be very material evidence for the defendant. If this be so, it is but just that proof of the opposite state of facts should be received as material circumstances in favor of the plaintiff. If the shepherd knowingly receives the wolf into his fold, he deserves neither sympathy nor compensation for the loss of his flock; but if the marauder gained admittance by assuming the garb of innocence, the fraudulent means used in perpetrating the injury must add to the enormity of the outrage, and demand a higher measure of compensation and punishment. If the defendant, in order to accomplish his outrage upon the rights of the father, has assumed liabilities to the daughter, this is no reason for excluding the evidence in an action by the father. So far as the promise of marriage tends to show the nature of the injury to the parent, or the means by which it was accomplished, the evidence is as pertinent as any other circumstance which gives character to the transactionand the. only instruction which the defendant has a right to require in regard to such evidence is, that the jury must not award to the father any part of the damages which belong to the daughter, by reason of the breach of the contract of marriage. It is written that “ the way of the transgressor is hardbut there is no unjust hardship in two punishments where there are two offences. It is proper that the daughter should have her action on the contract of marriage for the damages which she has sustained; and it is equally just that the contract should be given in evidence in the action by the father, where the defendant himself has made use of it as the means of deceiving and injuring the parent.

It was perfectly in accordance with this view of the question, that Mr. Justice Gould, in an action by the father, permitted the daughter to give evidence of the promise of marriage, and that her lover was “ well received by her father on that account,” although the learned judge instructed the jury that in giving damages to the father they “ must not consider the injury done to the daughter, as to the promise of marriage, but must leave that matter quite out of the question, because the daughter might have her action for breach of that promise.” In consonance also with this view of the question, when it was objected that the defendant might thereby be punished twice, Chief Justice Wilmot answered the objection by saying, that if the daughter “ brings an action for the hreach of promise of marriage, so much the better; he ought to be punished twice:” Tullidge v. Wade, 3 Wilson 18. The seducer who commits two offences, has no better right to escape with a single punishment, than the burglar who murders the servant in order that he may rob the house of the master without opposition.

When a witness declines answering a question, upon the ground of its tendency to criminate himself, the objection is addressed to the Court, and the decision upon it is to be made by the Court, and not by the jury. If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion- by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it. The exercise of this right by the witness is not under the control of the parties, and no one can be affected by evidence which his adversary fails to produce, and which, therefore, cannot be met or explained by cross-examination, rebutting evidence, or otherwise : 2 St. N. P. C. 158; 16 Ves. 64.

It has been so frequently decided that this Court will not reverse upon an abstraction, that it is scarcely necessary to repeat the principle. The plaintiff in error, in order to obtain redress in this Court, must not only establish the existence of an error in the proceedings below, but that the error has tended to his injury. It is not sufficient to show that an improper question, either in form or substance, has been put to a witness. It must appear that an answer was received which tended to injure the case of the plaintiff' in error. The 2d bill of exception does not set forth the answer of the witness, and, therefore, we cannot declaro that the plaintiff in error has been injured by the decision complained of in that bill.

The third bill of exception is equally defective. The evidence given by Jane Ham, on cross-examination, touching -the time of her marriage and the birth of her first child, and the other circumstances showing the materiality of such evidence, ought to have been inserted in the bill, in order that this Court might form a judgment upon the question, whether the cross-examination related to a matter material to the issue. The affirmative of this must appear, in order to convict the Court below of error in refusing to hear evidence to contradict the witness in regard to these dates.

Most of the remaining matters complained of in the assignment of errors, appear to be-founded upon the remarks of the judge upon the evidence, which were not made or intended as binding instructions. We cannot say that we would have taken the same view of the case which the learned judge presented to the consideration of the jury. But for the exercise of his discretion, in this respect, we cannot reverse, on error, where we see that he has fully recognised the rights of the jury to decide upon the facts of the ease.

As we see no error, the judgment is to be affirmed.

Judgment affirmed.