22 W. Va. 253 | W. Va. | 1883
This was an action on the case in the circuit court of Ritchie county, commenced on the 24th of April, 1882, by Eli Riddle against Benjamin McGinnis claiming five thousand dollars damages for the alleged seduction by him, of the plaintiff’s daughter Rosa Alice Riddle. Process was returned executed, and declaration filed and conditional’judgment entered therein at the May rules, and at the June rules, 1882, conditional judgment was confirmed and a writ of en-
“Eli Riddle complains of Benjamin McGinnis, who has been duly summoned, &c., of a plea of trespass on the case, for that the said Benjamin McGinnis heretofore, to-wit, on the 1st day of January, 1881, at the county aforesaid, seduced, and at divers other times between that day and the commencement of this suit, debauched and carnally knew Rosa Alice Riddle, who.wasthen and still is under the age of twenty-one years and unmarried, and who at the time of such seduction was a virtuous and innocent daughter of the plaintiff, and the plaintiff then was and still is entitled to the comfort and benefit of her society, attention and services, and by reason of said wrongful act of defendant, he, plaintiff has sustained great loss and. damages, to-wit, five thousand dollars, and therefore he sues, &c.
“Second count — And for that, whereas, the said Benjamin McGinnis, contriving and unjustly and wrongly intending to injure the said Eli Riddle and to deprive him of the service and assistance of Rosa Alice Riddle, the daughter and servant of him, the said Eli Riddle, to-wit, on the — day of January, 1881, at the county 'aforesaid, and on divers other days and times between that day and the day of commencing this suit, debauched and carnally 'knew said Rosa Alice Riddle, then and there, and from thence for a long space of time, to-wit, up to the commencement of this suit, being the daughter and servant of him, the said Eli Riddle, whereby said Rosa Alice Riddle became pregnant and sick with child, and so remained and continued tor a long space of time, to-wit, for the space of nine months then next following, at the expiration whereof, to-wit, on the 9th day of April, 1882, she, the. said Rosa Alice Riddle, wras delivered of the child with which she was so pregnant as aforesaid, to-wit, at the county aforesaid. By means of which said several premises, she, the said Rosa Alice Riddle, for a long space of time, to-wit, from the day and year first above mentioned hitherto, became and was*256 unable to do or perform the necessary affairs and busiuess of Eli Riddle, so being her father and master as aforesaid, and thereby he, said Eli Riddle, during all that time lost and was deprived of the service of his said daughter and servant, to-wit, at the county aforesaid; and also by means of the said several premises, he, the said Eli Riddle, was forced and obliged to and did necessarily pay, lay out and expend divers sums of money, amounting in the whole to a large sum of money, to-wit, the sum of fifty dollars, in and about the nursing and taking care of said Rosa Alice Riddle, his said daughter and servant, and in and about the delivery of the said child, at the county aforesaid, to the damage of the said Eli Riddle five thousand dollars. And therefore he brings his suit, &c.”
The defendant then pleaded not guilty, and issue was thereon joined, but no other plea was tendered or filed. The defendant on the 29th of June, 1882, when the case was called for trial, moved the court to continue the cause for the reasons stated in his first bill of exceptions, which motion the court overruled, and the defendant excepted and filed his first bill of exceptions in the following words:
“Be it remembered that upon the calling of this, cause the defendant in person and by his attorney Thomas E. Davis appeared in open court and moved the court for a continuance of this cause, and assigns the following grounds for such continuance:
“Eirst. This suit was instituted against the defendant on the 24th day of April, 1882, and the process served upon him the following day, to-wit, the 25th day of April, 1882, and returnable to May rules, 1882, and that from the time of the service of the process and the return thereof, the defendant had not sufficient time to prepare himself for the trial of this cause; that within a few days after the services of said process, he engaged the services of one Thomas E. Davis, attor.ney practicing in this court, to defend him, and paid him a retainer’s fee therefor, and relied upon him to defend him in this suit.
“Secondly. That it was further shown to the court by the defendant on his oath, who had been introduced for the purpose of showdng cause for a continuance, that Ellen Robinson*257 was a material witness in his behalf, and that he was informed and believed that she would testify to the following facts, which were required by the court to be reduced to writing by the defendant, and without said evidence he could not safely go to trial:
“Benjamin McGinnis, being duly sworn to answer such questions as may be asked him by the court or bar, deposed and said in open court on June 29, 1882:
“I can show by Ellen Robinson that she resided .at my house at the time the child born to Rosa Alice Riddle ¡should have been conceived, to-wit, nine months before Alice Riddle was delivered of child on the — day of-, 1882; that at that time the said Alice -was at a number of times in company with a man who paid her a great deal of respect, and that from their acts and ways she was led to believe that they were guilty of cohabiting together, and she did believe they cohabited, and that the man came to the house where said Rosa Alice Riddle was, brought whiskey with him, and he gave her drinks, and they went oil from the house out of her sight after drinking, and that said Alice told her they were promised to be married; and that he kept a decent, orderly and respectable house, and never acted, said or done anything improper whilst she lived at his house — during all the time she lived there, to-wit, about one year.
“Attest:
“Will A. Strickler,
“ Clerk Circuit Court, Ritchie County, West Virginia.”
The defendant further stated under oath that he could not prove said facts by any person else other than Ellen Robinson, and that he did not know of his owm knowledge that she would swear to such facts, but he was informed that she •would, and upon such information he believes she would. Whereupon the court stated that if she was to swear to the same, he would be compelled to exclude the same from the jury, as it was not pertinent to the issue in this cause.
And the defendant further stated that he had used due diligence to ascertain the whereabouts of the said Ellen Robinson, both by inquiry and -writing, and had ascertained that she was in Nansas, but not in time to take her testimony in this cause; and that he was informed by his counsel and upon
AEEIDAVIT OR THOMAS E. DAVIS.
“Eli Riddle 1 vs. > Trespass on the case. BENJAMIN MüGlNNIS. J
“Before the undersigned authority' personally appeared Thomas E. Davis, and made oath in due form of law that he is counsel for the defendant in this cause; that he advised the defendant that the testimony of Ellen Robinson was material to him on trial of this cause, and that he could not safely go to trial without her. And he further declares that McGinnis gave him the names of other witnesses to have summoned in this cause, and that he having ascertained that said Robinson’s testimony could not be obtained at this term of the court, he did not have the other witnesses summoned; and he informed the defendant that the court would grant him a continuance of this cause, j.udging from the ruling of the court heretofore because it was the first time of the calling of said cause, and that by him putting himself within the rule, the court-would surely grant him a continuance for this term at least.
“He further declares that he offered to be qualified before the court to such advice given McGinnis; and further,' that George Loomis was counsel retained in said cause to assist him, ánd that he did not feel like undertaking said cause in the absence of said retained counsel.
“Thomas E. Davis.
“Taken, sworn to and subscribed before me.
“R. S. BlaiR, Notary JPublic.”
“Which motion for a continuance being argued by counsel for the plaintiff’ and defendant, and considered by the court, was overruled, and the defendant compelled to go to trial. To which opinion of the court in overruling said motion for*259 a continuance of said cause, and requiring him to disclose to the court what he expected to prove by MissEllen Robinson, the defendant by his counsel, excepted, and prays that this his bill of exceptions may be signed, sealed and saved to him; and that the same is ordered to be made a part of the record in this cause, and which is accordingly done.
“Thos. I. Stealey. [seal.]”
On the 30th day of June, 1882, the cause was tried upon the issue on the plea of “not guilty,” and the jury found a verdict in favor of the plaintift for three thousand dollars damages for which judgment was entered on the Verdict. To this judgment the defendant has obtained a writ of error and supersedeas from this Court. On the trial the defendant obj ected to the introduction of the testimony of Aaron Frey and ¥m. M. Rymer,two of the plaintiffs witnesses, but the court overruled his objections and permitted their testimony to be given to the jury. To this ruling of the court the defendant again excepted, and filed his bill of exceptions No. 3, viz : “Be it remembered that on the trial of this cause the plaintiff in order to sustain the issue on his part introduced Aaron Frey, who testified that he knew McGinnis, the defendant; that he lived two or two and one-half miles from McGinnis and had so lived for nine years last past; what he is worth I cannot tell to save my life, but I think he is worth about eight thousand dollars. I’ll give him my (Frey’s) bonds for eight thousand dollars. . And to further show the worth of the defendant, the plaintiff introduced one Wm. M. Rymer, who testified that the defendant was worth twenty or twenty-five thousand dollars; he would place it at that, and he would be willing to give fifteen thousand for it if he was able to pay it; that his wealth consisted of land and stock. I know that he owns seven hundred or one thousand acres of land; at least three years ago he owned it; don’t know that he owns it now; don’t know of my own knowledge that he'owns either stock or land now, but he lived on the land day before yesterday, and he did not know that defendant had conveyed it away.
“To the offering of which evidence to the jury, the defendant, by his counsel, insisted that the same was not admissible, and moved the court to exclude the same from going to
Before the jury retired the defendant lhoved the court to give them the series of instructions set forth in his second bill of exceptions, which the court refused, but in lieu thereof, gave the jury certain instructions, which also appear in said second bill of exceptions, to which ruling of the court refusing to give the instructions, as asked for, and in giving said instruction in lieu thereof, the defendant again excepted, and filed his “bill of exceptions No. 2” in these words:
“Be it remembered that upon the trial of this cause the defendant on cross-examination of the plaintiff’s witnesses, Rosa Alice Riddle and the plaintiff, as shown by the evidence certified, elicited evidence tending to show that the relation of master and servant between plaintiff’ and daughter did iiot exist at the time of the charge of seduction set up in the declaration in this cause. And it was further shown by the evidence in this cause on the part of the plaintiff, that the first act of criminal intercourse was committed in February or March,-1881.
“The defendant, by his counsel, after the case was submitted to the jury and before they retired to consider of their verdict, moved the court to instruct the jury as follows:
“ £1. If the jury believe from the evidence that there did not exist the relation of master and servant at the time of the alleged debauching of Rosa Alice Riddle by the defendant between the plaintiff and the said Rosa Alice Riddle, then they must find for the defendant. And the jury is further instructed that under the count in this declaration the plaintiff can only recover for loss of service proven and not consequential damages, and if no service be shown, they must find for the defendant.
*261 “ ‘2. The jury are instructed that in this action the plaintiff’s right to recover rests upon the loss of service, not on the seduction of Kosa Alice, and there must be evidence to satisfy your mind of such loss of service before you can find for the plaintiff, and if you are satisfied no service was proven, then you must find for defendant.
“ ‘3. The jury are instructed if they believe that more than a year elapsed between the time of the commission of offence, to-wit, seduction, and the time of bringing this action, the plaintiff is not entitled to recover.
“ ‘4. The jury are instructed that if they believe from the evidence in this cause that plaintiff’s daughter and servant qoer quod sermtium arhisit, is not maintained by evidence, that the daughter, though under age, living in another person’s family in the capacity of a hiréd girl or housekeeper, a.nd if they believe from the evidence that at the time she went into the service of another with, no intention of returning, the relation of master and servant as between the plaintiff and his daughter did not exist; and if they further believe from the evidence in this cause that during her stay with the defendant that the plaintiff never exercised any legal control over her acts or received any compensation for her work from the defendant, then they must find for the defendant.
“ ‘5. The jury are further instructed that if they believe from the evidence in this cause that the plaintiff charged his daughter, Rosa Alice Kiddle, her board during the time of her sickness after her seduction and return home, it is a circumstance the jury may take into consideration as to the abandonment or renunciation of his relation to his daughter and servant; therefore they must find for the defendant.
“ ‘6. The jury are further instructed that if they believe from the evidence that the daughter of the plaintiff was at the time of the seduction in the service of another with no intention of resuming the relation, that of master and servant did not exist, then under the count in the declaration, to-wit, second count, the plaintiff cannot recover.’
• “But the court refused to give said instructions to the jury, but gave the following instructions in lieu thereof:
“ ‘The jury are instructed that this action is based upon the right of the plaintiff to recover damages for the loss of ser*262 vices of the daughter occasioned by the wrongful act of the defendant, and in order to maintain this action, the plaintiff must show to your satisfaction by the evidence in this cause that some loss of service was sustained by the plaintiff, however small or slight; that if you are satisfied from the evidence in this cause the plaintiff did sustain loss of services of his daughter, and that such loss of services was occasioned by the seduction and wrongful act of the defendant, then you may take into consideration the shame, loss of respect and mortified feeling of the plaintiff, and give such exemplary damages as you may believe the plaintiff entitled to. The jury are further instructed that if they believe from the evidence in this case‘that the daughter of the plaintiff was seduced by defendant whilst at the defendant’s house and in his employ, and that she was under the age of twenty-one years, then unless the evidence in this cause should satisfy you that the plaintiff had relinquished all control over the daughter and all right to her services, the law presumes that the plaintiff is entitled to her services, and any' loss of services sustained by the plaintiff’ occasioned by such act of seduction, does entitle the plaintiff to recover.’
“To the opinion of the court in refusing the said instructions asked for, and to the giving of the instructions by the court in lieu thereof, the defendant, by his counsel, excepted and tendered his bill of exceptions, and which he prays may be signed, sealed and saved to him, and which is ordered to be made a part of the record in this cause, which is accordingly done. “Thomas I. Stealey. [seal.]”
After the jury had rendered their verdict and were discharged the defendant moved the court to arrest the judgment upon the verdict, and to set the same aside and award him a new trial because the verdict was contrary to the law and the evidence, and because the damages were excessive, which motion the court overruled, and the defendant again excepted and filed his fourth bill of exceptions in which the court certified the facts proved on the part of the plaintiff, no evidence having been introduced by the defendant. The facts and evidence so certified, are in substance as follows: That the plaintiff and defendant were well acquainted with each other for thirty odd years; that they
The plaintiff in error has assigned the following errors:
First. — In overruling his motion for a continuance for the reasons set forth in his first bill of exceptions.
Second. — In compelling him to reduce to writing what he expected to prove by the absent witness, Ellen Bobinson, because there were no circumstances brought to the notice of the court, or .discovered by the court itself, to satisfy the court,
Third. — In refusing to give the instructions asked for, and in giving the ones he did give.
Fourth. — In refusing to exclude from the jury the testimony given by the witnesses Rymer and Frey, set forth in his third bill of exceptions; and
Fifth. — In overruling his motion to arrest the judgment, set aside the verdict because the 'damages were excessive, and in refusing to award him a new trial.
Did the court err in overruling the motion of the defendant to continue the cause ?
To show himself entitled to a continuance the defendant put himself upon the witness stand, and being sworn to answer such questions as might be asked him by the court or bar, he made the statement set forth in his first bill of exceptions, which statement was required by the court to be reduced to writing. It was absolutely necessary that this should be done, in order that the defendant might have the benefit of the ruling of the court thereon, and the court did not err in doing so. But if _ the witness, Ellen Robinson, had been present in court, and on the trial of this action, had deposed to all the facts set forth in said bill of exceptions, her testimony -would have been wholly immaterial as well as inadmissible. All these statements might be true, and Rosa Alice Riddle be as pure and spotless as the snow — or, she may then have been debauched and ruined by the defendant; that she was seen “in the company of a man who paid her a great deal of respect,” or that she had gone off from the house with him, out of the sight of Ellen Robinson, who may have believed that he and she were guilty of cohabiting together, affords no just grounds to believe her criminal. All these things might occur, and they often do occur, and the parties be perfectly innocent. It will scarcely be contended that the belief of a suspicious witness can be accepted as proof of a crime, which the' witness does not even pretend to say, has ever been committed. But whether such testimony be true or false, it does not tend to show that Rosa Alice Riddle had not already been, or that she was -not afterwards debauched by the de
But it is insisted that the court had no right to requirethe defendant to state the facts he expected to prove by the absent witness, because the case had never before been continued, and because no facts appeared, or were discovered by the court to induce the belief that the motion was only made to delay or evade a trial. To this ai'gument we might reply, that there is nothing in the bill of exceptions to show that
Did the court err in refusing to give to the jury the series of instructions asked for as set forth in the second bill of exceptions, or in giving the instruction mentioned therein?
It will be observed from said second bill of exceptions that the six several instructions asked for, were offered with the intention of covering all the questions of law arising out of the pleadings, and also to supply the place of a plea of the statute of limitations, which was neither offered nor filed. They were offered as a whole, -or as an instruction containing six legal propositions, and the court was asked to give them all to the jury. It is a well settled rule of law that if a general demurrer be entered to a declaration containing several counts, and any of them be good,, the court will overrule the demurrer. The same rule holds good where several instructions are asked to be given as a whole to the jury, or where one instruction containing several legal propositions is offered, for if any one of the series of instructions offered as a whole, or any one of the legal propositions contained in the single instruction asked for, be erroneous the court will refuse to give such instructions and in refusing to give them, the court is not bound to modify or correct them, nor to instruct the jury generally 'on the whole law of the case, although it is not error in the court to do so.
Before passing on the correctness of the instructions refused, and on those given by the court, let us briefly review the peculiar character of this action.
It has been the boast of the common law lawyers, that the
Therefore to enable the father to maintain this action for the seduction of his daughter, the relation of master and servant must exist between them at the time of the seduction, though this relation need not in any case, be created by contract; it must be alleged and shown that this relation so existed, that the daughter, rendered the father some service, no matter how trivial or valueless, and that he has been to some extent deprived of these services by her seduction. These facts alleged and proved, the father by the common law, was entitled to recover from the seducer of his daughter, damages for the loss occasioned by his wrongful act, and the father’s right to sue for and recover the same, accrued as soon as the loss consequent upon the wrongful act, was sustained, and not before, for the loss sustained by the master ivas the real foundation of the recovery, and not the wrongful act which occasioned the loss. Lee v. Hodges, 13 Gratt. 726, and cases therein cited; Clem v. Holmes, 33 Gratt.; White v. Nellis, 31 N. Y. 405; 5 Wait’s Actions and Defences 656 and eases there cited.
While at common law, the father and master, was obliged to allege and prove the loss of service, however trivial or valueless, as the foundation of the recovery, yet it was regarded only as the foundalion, for the courts have always treated, the relation of master and servant, and the loss of service, as innocent fictions which merely served to give the court jurisdiction, while the measure of the plaintiffs damages was not merely the actual value of the services lost, but compensation for the shame, disgrace and anguish, suffered by the father, in the defilement and ruin of his daughter, These elements now enter into, and generally constitute the real measure of damages, while the jury, in estimating them must almost necessarily be influenced and controlled by the position of the parties in society, and by all the other circumstances surrounding each particular case. But the rule at
All that is now necessary to be alleged and proved is, that the relation of master and servant existed between the father and daughter at the time the fact occurred, which, as the law formerly was, would have occasioned the loss of service of the daughter.
This relation of master and servant between father and daughter, where she lives in her father’s family, even when she is over the age of twenty-one years, and when he has no legal right to command her services or to receive her wages, is established by proof of the most trivial or valuless services rendered by her in his family j such as making tea, mending stockings, milking his cows, presiding at his tea-table, or any other acts of service however slight. Bennett v. Alcott, 2 Term Reports 166; 2 Greenl. Ev. §§ 573 and 576; 9 Johns. 387; 11 Wend. 461. And in Fores v. Wilson, Peakes’ N. P. cases 55, which was an action for assaulting and debauching plaintiff’s maid, Lord Kenyon held, “that while there must subsist some relation of master and servant, yet a very slight relation was sufficient, as it had been determined that when daughters of the highest and most opulent families have been seduced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child cannot be treated as a menial servant.” And Spencer, judge, in delivering the opinion of the court in Martin v. Payne, 9 Johns. 390, says: “Put the case of a gentleman’s daughter at a boarding-school debauched and gotten with child, on what principle can the father maintain the action, but on the supposed relation of master and servant arising from the power possessed by the father to require menial services; for in such a case there is no actual existing service, constituting the relation of master and servant. Would it not be monstrous to contend that for such an injury the law afforded no
.But in cases where the unmarried daughter is a minor, and lives with her father, or by his consent, lives with and works for another, and receives and expends her own wages, he is always at liberty to recall his consent, and to command her services, and to resume his relation of master defacto, as he previously wras de jure, for he is by law entitled to the comfort and benefit of her society, attentions and services, unless he has in some lawful and binding manner renounced all claims to her services. This absolute relinquishment by the father of all control over the person and conduct of an unmarried daughter under the age of twenty-one years, is never to be presumed but ought to be established by the clearest proof or by circumstances so cogent as to be equivalent thereto. Clark v. Fitch, 11 Wend. 459.
The case of Lee v. Hodges, reported in 13 Gratt. 726, was an action brought by the father for the seduction of his daughter, who was debauched while living away from her father’s house, on a contract for service made by herself. Daniel, judge, delivering the opinion of the court, reviewing the cases above cited, says: “That in this country the ruléis established, that whilst the daughter is under twenty-one years of age she will for the purposes of the action,, be regarded as the servant of the father, though not living with him, but away from him in the family and service of another, except where the father has renounced or abandoned her
The case of Clem v. Holmes reported in 33 Gratt. 722, was an action on the case brought by the father for the seduction of his minor daughter, who was debauched by the defendant at his house while she was there in temporary service. She returned to her father’s house, whore she was delivered of a child, and expense and loss were incurred by the father in nursing and taking care of her during that period. The declaration contained two counts; the first was in the usual common law form, and the second was in the precise words of the first count, of the plaintiff’s declaration in this case, excepting only the names of the parties, and is an exact copy of the form, contained in the 4th vol. of Rob. New Pr. page 626. The defendant demurred to the whole, and to each count in the declaration, which the court overruled. The defendant then pleaded not guilty, and the statute of limitation of one year; plaintiff took issue on the pleas and there were a verdict and judgment for the plaintiff. It will be observed that in said second count in that and the first count in the declaration of the case at bar, the plaintiff does not in distinct terms allege that the daughter was the plaintiff’s servant, or that he lost or was deprived of the service of his daughter and servant. The last allegation, always essential in common law declaration for seduction, is in explicit terms dispensed with in the Code of Va. of 1873 chapter 145 section 1, and also by section 1 chapter 103 Code of W. Va. .But while the necessity of alleging or proving the loss of service of the daughter is dispensed with, no other change was thereby made in the common law governing this action; it is therefore still necessary that the declaration shall allege, that the relation of master and servant existed at the time, when (as they stood before the change) the loss occurred. But we have shown, that where the daughter is a minor and unmarried, and was so at the time of the seduction, and the father then was, and still is entitled to her services and attentions, it is a, conclusive presumption of law that the relation of master and servant exists between them. As said section 1 chapter 103 of the Code of W. Va. makes no other change in the common law on this subject, and as the father’s right of
Did the court eiT in permitting the testimony of the witnesses Frey and Kymer, as set forth in the defendant’s third bill of exceptions, to go to the jury to prove the pecuniary circumstances of the defendant; and in giving to the jury the instructions contained in his second bill of exceptions; and also, in refusing to set aside the verdict, arrest the judgment and award the defendant a new trial as set forth in his fourth bill of exceptions ? The testimony of Frey and Ky-mer could only have bee.n offered to enhance or aggravate the damages by showing that the “ rank and influence of the of the defendant in society, and therefore the extent of the injury,” are increased by his wealth. Under the circumstances surrounding the trial of this ease; with full knowledge on the part of the defendant, that the daughter, at the time of the seduction, and even at the time of the trial, was under the age of twenty-one years, unmarried, and had resided in his family from the time she was seventeen years of age, until she returned to her father’s house, and that her father, while she so resided there, was entitled to her attention and services; and that no proof whatever had been offered by the defendant tending to prove that the plaintiff had in fact abandoned or renounced his parental authority over her, except the fact that she made her own contract of service, and received her own earnings; the only material question left for the consideration,of the jury was, what amount of damages the plaintiff was entitled to recover.
It has long been well settled, that in an action for seduction, and also in other actions for willful and wanton injuries done to the person and reputation, as for assault and battery, libel, slander, false imprisoment, malicious prosectuion and the like, the plaintiff is entitled to recover damages not only for expenses incurred by him, but for the loss of his time,
The logical deductions from these principles as well as the weight of modem authorities warrant the conclusion that in an action for the seduction of a daughter the pecuniary circumstances of the plaintiff and defendant are proper subjects for the consideration of the jury in making up their verdict. 5 Wait’s Actions and Defences 666, 668, and in Lowry v. Crooke, 52 Wis. 612, where Cassody, justice, .delivering the opinion of the court says: “This was just the kind of evi-
In Clem v. Holmes, 33 Gratt. 726, the court of appeals of Virginia established the doctrine, that “In an action by a father, for the seduction of his daughter, evidence offered by the father of the pecuniary condition of the defendant is competent.”
Staples, judge, delivering the opinion in that case, says: “It is a matter of surprise, there ever could have been a question as to the admissibility of such evidence; the damages are not merely compensatory, they may be exemplary in their nature. In all such cases the wrong is aggravated in proportion to the wealth, position and rank of the guilty party, all of which may be the instruments by which he more readily accomplishes his purposes. A verdict absolutely ruinous to a man in moderate circumstances, would be scarcely felt by a man of large fortune, and would he but an invitation to a renewal of the offence, whenever the opportunity occurred for its commission.”
We are therefore further of opinion that the circuit court did not err in permitting the evidence of the witnesses Kymer and Frey to be given to the jury, but the court erred in instructing the jury “that this action is based upon the right of the plaintiff to recover damages for the loss of services of the daughter occasioned by the wrongful act of the
There remains only to be considered whether the circuit court upon the facts ¿ertified, erred in overruling the defendant’s motion to set aside the verdict, arrest the judgmentand award him a new trial because the verdict was contrary to the law and the evidence, and because the damages loer’e excessive. That the verdict is not contrary to the law and the evidxn.ee, is abundantly shown by the authorities cited, and the facts certified. This Court in the case of Sweeney v. Baker, 13 W. Va. 158, held that a new trial will not bo granted on the ground that the damages are excessive, especially in the Court of Appeals, unless the damages assessed by the jury are'so enormous as to furnish evidence of “prejudice, partiality, passion or corruption,” and this Court in that case refused to disturb the verdict which was for eight thousand dollars damages in a case of libel, where in the trial of that case, as also in the case at bar the defendant offered no evidence whatever. The rule above referred to, and settled in that case, must'be regarded as the law of this State on that point. "Was the verdict in the case at bar for three thousand dollars so enormous as to furnish sufficient evidence to satisfy the mind of this Court that the jury were influenced by prejudice, partiality, passion or corruption ? The judge who presided at the trial, heard all the evidence, observed the conduct and demeanor of the witnesses, and therefore had better opportunity to judge of their credibility, than this Court can have, was satisfied with the verdict, and for that cause refused to set it aside. This fact alone, in a doubtful case would turn the scale in favor of the verdict. But in the case at bar, what substantial legal objection can be alleged against this verdict? It is true,'it is a large verdict; larger than juries usually find in such cases. Who can say, with all the circumstances attending the trial and the facts proved in this case, and neither explained, contradicted or denied,
The alleged wrong was wanton, willful, deliberate; the daughter was young, was employed in the defendant’s house; she was under his protection ; her father who had known him for more than thirty years was a near neighbor; he believed the defendant to be a gentleman, and trusted his infant daughter to his care; he felt assured of her safety, for she slept in the chamber of his aged mother. That sanctuary might have been deemed a safe retreat. In this the unfortunate father was mistaken. The defendant had corrupted her; his toils were about her feet; she fell from' her high estate, and society casts her out, and nothing is left but shame and unavailing grief. The facts in this record show that this illicit intercourse commenced about March 1, 1881, and “continued for a long time.” When the plaintiff discovered his daughter’s shame he was overwhelmed with grief, anger and mortification; he wrote to defendant, but received no answer; he went to see him; his propositions of compromise were rejected; the defendant admitted he was the father of her child ;' confident in his belief that the father was helpless, with a degree of heartlessuess almost surpassing-belief, he told the plaintiff that he had “violated no bastardy law; that if he sued him no jury of twelve men could be found, some of whom were not in the same condition; that if plaintiff did not want his daughter he could turn her out; she was a good walker and could find some place to lie in; she had money and could pay her board.” What could be more cruel, more heartless; his daughter had fallen; his heart was wrung with anguish; his home was blighted; his other two daughters and his sons were abashed and disgraced by their sister’s shame. Who can describe the father’s anguish ? His (laughter is brought home with ■ blighted hopes and broken heart, to be nursed and eared for by her father, “even if it cost him his last piece of bread.”
The jury had the right to consider, and it doubtless did consider, all these circumstances of aggravation, in estimating
The judgment of said circuit court of Ritchie county rendered on the 30th day of July, 1882, is therefore affirmed with costs to the defendant in error, and damages according to law.
J udgmeNT Affirmed.