73 Mich. 588 | Mich. | 1889
This suit, which was begun in 1880, when defendant was a minor, was brought to recover damages for the seduction of plaintiff’s daughter Emma, who was also a minor. On a first trial plaintiff recovered over $3,000. A second trial granted by the circuit court of Eaton county reached no result. A third trial resulted in a verdict of $20, which was the exact amount of certain money expenses. Plantiff brings error, alleging several grounds, some of which relate to rulings on testimony, and the rest to the various ways in which it is claimed the court below - subjected plaintiff to improper rulings and theories. The facts are not all set forth, and it was not necessary they should be. So far as necessary to decision, they seem to have, on one side or the other, been presented under this state of things: In December, 1879, -Emma Stoudt gave birth to a child of whom the jury found defendant to be father, the result of a pregnancy brought about by intercourse in the end of March, 1879. This is fixed by the verdict. At the time of this
The declaration was in the . old form, averring the •criminal act as of March 30, 1879, and the subsequent pregnancy and child birth, and setting up loss of services and other injuries consequent. It is chiefly in consequence of the view taken by the circuit judge of the nature of the action, and the purpose and extent of the remedy, that the controversy was made to turn on that subject in this Court as well as below, where it is complained the case was treated as substantially one relating to expense and pecuniary loss.
Before referring to the issues before us, it is proper to refer to some argument that was made on a supposed •distinction between seduction and debauching as grounds of action. We do ' not find any authority for such a ■distinct classification. There are some questions arising out of differences in criminal statutes, and there may be in civil causes, especially where the woman is an adult, some questions of conduct which will bear on damages •or liability. But “ seduction” and “ debauching ” are in civil causes very generally used as substantially similar terms. The term “ debauching ” is used by Chitty in his forms as the proper word for such misconduct with a servant or member of a family as gives ground of
Some of the allegations of error seem to relate to supposed prevention of the witness Emma Stoudt from explaining alleged discrepancies in her testimony on former’ occasions. The record does not show plainly what difficulty arose. It is therefore only necessary to say that full liberty of explanation should always be given to witnesses. No one can be expected to remember with' literal exactness or entire fullness what he or she has testified years before. The minutes of stenographers as well as of counsel are not always accurate. No witness should be debarred from such explanation or statements concerning former testimony or its circumstances as the witness may deem important. It is all done before the jury, and its candor and reasonableness will usually be appreciable. And in the same connection it is proper to suggest that no question is leading which does not suggest an answer, and that over-technicality in obstructing testimony, by objecting to questions which have no reasonable tendency to do mischief, is not desirable, or calculated to expedite trials or develop truth.
The chief difficulty complained of is the theory on which the court proceeded upon the trial. It does not seem to have been noticed that our statutes have removed from such actions all the rubbish that disfigured them, from attempting to keep up an idea that their object was to collect damages for loss of service, when in fact that, was never any more than a legal fiction. Although by the common law it was rigidly required that the plaintiff should show a right to service and a relation of legal obedience, yet when that was shown in case of a child,
The charge was long, and some remarks may possibly have been qualified by others. But there were several charges given which put the case on a theory not recognized by our decisions, or by the statutes, and the finding of the jury cannot be reconciled with any proper theory. They could not possibly find a verdict for expenses actually incurred, and not for other damages, to some extent, at least. The court began by telling the jury that a woman herself could have no cause of action for seduction alone, consented to, and could only sue for such injuries caused by fraud or breach of promise; and, further, that the parent could not recover for the child^s sexual intercourse, except from the relation of services, and that such action belonged to the employer, whoever he was; that, if the intercourse resulted in no injury to the master, there could be no recovery. The court told the jury there was no evidence tending to hold the
“This may not strike us as being very reasonable, but it is the law, and we shall have to follow it. I mean that it may strike us that it is not very sensible to give damages in a suit when we can only measure damages by reason of loss of service; but, as I say, we have nothing to do with the question of whether the law is sensible or not, particularly, but merely enforce it as we find it.”
What was said subsequently concerning the things to be considered in determining the extra damages we do not think it necessary to dwell upon critically because in the light of what had already been said, it is evident the jury paid no attention to it. They found that there was no appreciable loss of services, and gave no damages beyond the §20 which were paid out as expenses of confinement, and must have thought this precluded any greater recovery. There were some remarks in the close of the charge which strongly tended to censure jurors who do not yield to the majority, and they certainly bear that construction. No juror should find a verdict that is not based on his own convictions, derived from the whole case.
Our statutes were passed to do away entirely with the
Our statutes (sections 7779-7781, How. Stat.) cover the whole ground. Section 7779 declares that it shall not be necessary to aver or to prove any loss of service, although section 7781 allows any one who has actually lost services to recover for them. By section 7779 the action is allowed to be brought in case of a minor by either parent or by a guardian. In case of an adult female, it may be brought by the father or any other relative authorized by her in writing. By section 7780 it is provided that it shall not be necessary to prove that the person seduced was servant of the plaintiff. Nothing need be proved but the parental or other relation by nature or wardship.
Since those statutes, which have been in existence in the same language for more than 40 years, the whole theory of the law has been that the actionable injury was what under the common law had been tacitly conceded, and that the damages were those, which had before been allowed only by way of aggravation. This has been recognized by decision here, and the statute has been construed according to its evident design, of abolishing the legal fiction, and furnishing adequate redress for the substantial wrong, and not on any pecuniary standard <?f service values.
In Watson v. Watson, 49 Mich. 540 (14 N. W. Rep. 489), 53 Id. 168 (18 N. W. Rep. 605); and Dalman v. Koning, 54 Id. 320 (20 N. W. Rep. 61); and in Weiher
The case of Watson v. Watson involved all of these considerations. The girl, when first led astray, was seduced by her adopted parent, who under the old theory was entitled to her labor. She yielded to the wiles and influences of the intimate domestic relationship wrongfully perverted, and not to selfish inducements. She sued, after reaching age, in her own name, and was allowed to-prove the long series of relations as practically one continued transaction, and as ground of damages. These principles are all denied by the judge's charge in this case, which based the right of recovery upon services impaired, and confined the damages to what ensued from the one final act of intercourse which led to pregnancy.
The decisions have also recognized, as those cases did, that single acts in such affairs seldom make up alone the real transaction, and that all that preceded them in the mutual relations of the parties is to be considered with them. Even in criminal cases, which usually are confined to single acts, previous relations may be important as explanatory. See, upon the general subject, People v. Millspaugh, 11 Mich. 278; Threadgool v. Litogot, 22 Id. 271; Sheanan v. Barry, 27 Id. 217; People v. Brewer, Id. 134; Lewis v. People, 37 Id. 518.
The last-named case has some bearing on the present case, as referring to young girls as more easily deceived or influenced by less inducements, in some cases, than older ones; and Lewis v. People is also important, in holding •that testimony of subsequent lapses cannot be received to
The youthfulness of defendant would be a circumstance which might or might not have a mitigating effect on damages, according to the other circumstances bearing on his character and surroundings. The youthfulness of Emma, who was no more than a child, and considerably under the age of consent to marriage, is' also a very important element, in many ways, as bearing on her liability to temptation and other matters of common-sense experience. If her unchastity was first occasioned by intercourse with defendant, the fact that she continued to meet his advances would not affect his responsibility for the general result; and even if she yielded after that to others, upon which the silence of the record gives us no means of judging, the authorities and reason both indicate that the first lapse would render her more likely to be drawn away thereafter, and this was recognized in Lewis v. People as a reason why subsequent unchastity should not be shown in mitigation. The charge of the court below, resting always on the one general theory abolished by our statutes, referred to unchaste conduct with defendant as well as with others, previous to March 30, 1879, as a somewhat controlling element in some features of the case, without reference in any clear way to how far defendant himself was responsible for it. From the fact that these young people, had been together from early childhood, it can hardly be assumed from the record that misconduct with others preceded misconduct with defendant. If it had done so, it would have weight in mitigation of damages, but it would not be a complete answer to the action. There was testimony indicating clearly that defendant was at various times active in enticing Emma from her
As already stated, the radically wrong theory which pervades the case has led to all the rulings complained of, and to the practical denial of redress by the jury.
The judgment should be reversed, and a new trial granted.