53 Mich. 168 | Mich. | 1884
This is an action on the case to recover damages for alleged seduction. The plaintiff had been living in the family of the defendant as his adopted daughter from 1872 to 1881, being when she went there twelve years of age. She claims to have been seduced by him in the summer of 1875. She submitted to him, according to her testimony, unwillingly, and under the influence of the control which he had obtained over her by means of the adopted relation. A child was born to her in July, 1881, which she says was the fruit of their intercourse. This suit was begun October 31, 1881. The defendant denies that sexual intercourse ever took place between him and the plaintiff. The case has twice before been in this Court. See 47 Mich. 427: 49 Mich. 540. On the trial on the merits, after the preliminary questions had been determined in this Court, the plaintiff recovered judgment for $4000 damages.
Before the plaintiff had given evidence of the seduction she was permitted to prove acts of improper familiarity on the part of the defendant occurring in 1878. This was objected to as being premature in that stage of the trial, and also as having no tendency to prove a previous seduction. So far as the question related to the order of proof, we think it was addressed to the discretion of the trial judge. The other branch of the objection was untenable also. It is no doubt true, as has been urged, that such acts tend rather to lend probability to the charge of subsequent intercourse than to
It was urged by the defendant that on the evidence of the. plaintiff the action could not be maintained, because as she claimed, the intercourse was accomplished by force, and was therefore not seduction, but rape. But the plaintiff’s evidence did not make out a rape: it made out only that her will was overcome by the defendant’s superior will, which had controlling influence because of the parental relation which he had assumed towards her. If the case were in fact one of rape, there would be very good authority for holding that the action might be sustained notwithstanding the fact that the intercourse was accomplished by force. Kennedy v. Shea 110 Mass. 147: s. c. 14 Am. Rep. 584; Damon v. Moore 5 Lans. 454; Lavery v Crooke 52 Wis. 612: s. c. 38 Am. Rep. 768. It was also urged that suspicion was cast upon the story of the plaintiff by the fact that she did not make immediate • complaint when the wrong was first committed; and instructions to the jury were requested to that 'effect. We think there was no error in refusing them. Counsel was at liberty to comment upon the fact if he deemed it advisable to do so, and perhaps the judge also; but the judge could not lay down any rule of law in respect to.it which would benefit the defense. Obviously, as respects immediate complaint, rape and seduction present very different considerations. When the truth of a charge is being investigated, in the light of the conduct of parties concerned, we are to consider what the behavior would naturally have been had the charge been true; and while all would probably agree that a virtuous woman who had been ravished would be likely to make immediate outcry, or disclosure, very different conduct would be
One of the assignments of error concerns the evidence given by the plaintiff, that at one time, not very distinctly specified, but which would seem to have been in the winter before the birth of the child, the defendant informed her that he had concealed four hundred dollars in a specified' place, which she was to have in case he should die before her, and in that event he desired her to take it, but to let no one know about it. It does not appear from the evidence that this conditional gift was the result of any previous understanding or promise, or that it had any connection whatever with the previous or continuing sexual intercourse, Neither was it shown that the defendant then knew the plaintiff was in the family way. If we believe the plaintiff’s charge, we should naturally attribute such a gift by the defendant to a desire to make some compensation for the wrong doue. If we believe the defendant truthful, the conditional donation may, on the other hand, be referred to very proper sentiments. The plaintiff had, at that time, been for eight years a member of defendant’s family, occupying the place of a child, though not formally adopted. If she survived him the law made no provision for her as a child, and this small gift he might very well make, and probably ought to make, if their relations had been perfectly innocent. The secrecy in the case might seem to require explanation; hut there might be very good reasons for making such a gift in such auway that it could not become the subject of possible family contention after his death. The act of making it was therefore apparently as consistent with good motives and honorable conduct as with a consciousness of crime; and it naturally indicated crime only to a mind already convinced. Conduct from which such opposite deductions are not only admissible, but would be natural, according to the prepossessions we may have respecting the person, ought not to be proved. The very reception of the
When the plaintiff was giving evidence on her own behalf she was asked what the defendant had told her respecting his pecuniary circumstances. Objection was made to the question, but she was allowed to answer, and she stated that he had told her he was worth twenty thousand dollars. The avowed purpose of giving this evidence was to swell the damages. In the instructions to the jury the trial judge did not pointedly call their attention to it, but he instructed them that, in awarding damages for the shame and ignominy which the plaintiff has suffered by reason of the wrongful act of the defendant, they might award to the plaintiff such sum as their fair and deliberate judgment and discretion should dictate, having regard to all the circumstances of the case — the seduction, and relation of -the parties before and at the time of'the alleged wrong to the plaintiff. The jury must, therefore, have understood they were at liberty to give damages with some regard to the amount of the defendant’s pecuniary means.
If'this were an action for breach of promise of marriage the wealth of the defendant would have been a fair subject of inquiry; but this is for the obvious reason that the plaintiff’s loss in such a ease has direct relation t'o the means of the man she was to many. Miller v. Rosier 31 Mich. 475; Bennett v. Beam 42 Mich. 346: s. c. 36 Am. Rep. 442; Kelley v. Riley 106 Mass. 339: s. c. 8 Am. Rep. 336; Kniffin v. McConnell 30 N. Y. 285. In several cases it has been held that similar evidence is admissible in actions brought for malicious injuries to plaintiff’s reputation. Karney v. Paisley 13 Iowa 89; Hayner v. Cowden 27 Ohio St. 292: s. c. 22 Am. Rep. 303; Humphries v. Parker 52 Me. 502; Bennett v. Hyde 6 Conn. 24, somewhat qualified in Case v. Marks 20 Conn. 248; Hosley v. Brooks 20 Ill. 115. In Holmes v. Holmes 64 Ill. 294, it appears to have been received by the court with some degree of dissatisfaction, and in
In Illinois it has been held in one case that the poverty of the plaintiff, as well as the wealth of the'defendant, may be an element in aggravation of damages in cases of malicious torts. McNamara v. King 7 Ill. 432. But there could be no general rule to that effect. See Chicago v. O'Brennan 65 Ill. 164. It has been decided in that state that evidence of the pecuniary circumstances of one of two joint defendants must be rejected, because its tendency, if received, would be to increase the damages as against the defendant, whose means were less, and so to work injustice. Toledo &c. R. R. Co. v. Smith 57 Ill. 517. This difficulty in the application of the rule ought to give very satisfactory evidence of its unsoundness; for the rule, if founded in justice and reason, ought to be, and would be, as applicable in one case as another. The plaintiff’s injury is no greater and no less be
In this case, the plaintiff, if she establishes her case, should recover such damages as will fairly compensate her for the wrong she has suffered. But we do not see how the wealth of the defendant can add either to the shame and mortification she must suffer, or to the injurious consequences in after life. If wealth could be inquired into at all, the inquiry could not well go beyond general reputation; for a knowledge of actual wealth involves an inquiry into details, which in such a suit would render necessary a collateral investiga
The defendant offered to show that his general reputation for chastity and purity of life had always been good, but the court excluded the evidence. This is complained of; but no authority in support of its reception is cited. This absence of authority furnishes a very strong, if not conclusive, argnr ment against the "evidence. Good reputation is a very obvious defense in such a case, if it is admissible, and the failure to resort to it hitherto must be referred to a general understanding that the courts were not at liberty to receive it. In criminal cases the defendant may prove good reputation for what it is worth; but the weight of it in his favor would be much more conclusive in some cases than in others. In cases of alleged seduction it would be likely to have less importance than in cases involving accusations of wrongs by violence; for a woman would naturally be more on her guard in the case of a notorious character than when the man was one in whom the community confided. Indeed, seduction is often the result of an intimacy originating in mutual respect, and which has become dangerous before the parties are fairly aware of it, and while reputation on both sides is unblem
Some further questions of evidence which are not likely to arise in the same way again are passed by without. notice. "Various instructions upon the evidence were asked of the trial judge which concerned the weight and credibility of the proofs merely, and which he was at liberty to deal with as he saw fit. Too much is frequently asked of the trial judge in the line of instructions when no question of law is involved, and we are not inclined to favor the jiractice.
The only remaining question is the one made under the statute of limitations. The suit was not begun - until more than six years had elapsed from the time of the alleged seduction. The suit, under the statute, might have been brought by some relative for the plaintiff; How. Stat. § TTT9 ; but if it had been it would have been barred. But the person whose family relation to the plaintiff was such as naturally to indicate him as the one to bring suit for such an injury on the plaintiff’s behalf, was the defendant himself, and gross injustice might result from any rule of law which should make his own inability or unwillingness to take the steps •called for by the relation operate to extinguish a right of -action for his own misconduct. We have decided that in these cases the woman may sue in her own name; Watson ■v. Watson 49 Mich. 540; and when she is an infant at the time of the seduction, and nobody acts for her during her minority, there is the same equity in this case as in any other, that she be allowed a reasonable time after coming of age to decide upon seeking redress. The statute, How. Stat. § 8713, allows six years for the purpose, and the action was therefore not barred.
For the errors which have been pointed out there must be a new trial.
