Davenport v. Russell , 5 Day 145 ( 1811 )

Edmond, J.

The grounds on which the defendant fonmh-1⅛ claim for a new tria!, as presented by hi» motion, are.

⅜. That the court erred iti ivp-cling the testimony of competent witnesses offered by him, on the tria!, to prove that the wife of the plaintiff', at the time the trespass was alleged to have been cumrnilUd, was a women of a h ud and abandoned character; which testimony was offered to mitigate the damages, as well as for other purposes.

2. Thai after the exclusion of such testimony, the defendant claimed the law to be so, that the jury ought not to give any damages for the supposed frightening of the wife, but only for the injury done to the house; and that the court did not charge the jury upon that point of law, but instructed them, that there was no principle of law involved in the oa.-e. which made it necessary to instruct them relative to the amount of da'niages.

To determine w hether the charge was correct, it is necessary to look at the declaration, and see what is the nature and substance of the action.

The declaration stales, that the defendant, at 12 o’ clock at night, on the 20th day oí September, in the absence of the plaintiff, (and that known to lire defendant,) with force and arms, broke and entered the plaintiff’s dwelling-house, with intent to ravish the plaintiffs wife, and while in said house, 'with like force and arms, and with the declared intent to ravish the plaintiff's wife, broke and entered the bed-room where bis wife slept, drove her from the bed-room into the garret of the house, where, to avoid the defendant, she con-st ¡tied herself; and then and there, while in said house, with like force, pulled the children out of bed, and threatened to kill them, and burn the house, unless the wife would appear and submit to his lewd and infamous proposals; anti then and there broke the glass in the house, and did much injury to the same, and greatly disturbed, terrified and injured the plaintiffs family, put his wife in fear, and endangered her Mfe and health, &c.

This is, clearly, an action for breaking and entering the plaintiff’s house, breaking and entering the bed-room, and breaking the glass. The other facts are not stated, as the ground of the plaintiff’s right of action ; they are not laid with a a per quod servitium amisit, or per quod comvrtl wn amisit, but as a further description, to shew the nature and enormity of the trespass ; and under this declaration, the plaintiff would not he permitted to prove the loss of service of his children, or the comfort, society and aid of his wife. Salk. 643. Yet, the pulling the children from the bed* threatening to burn the house, to ravish the wife, and other circumstances mentioned in the declaration, might be proved to aggravate the damages for the trespass of breaking the house ; were it otherwise, the amount of damages must be the same, for raising a latch and entering a house without licence, as for a like entrance accompanied with the most aggravating circumstances, — a doctrine too extraordinary to need refutation. If this view of the action is correct, i! would have been error to have charged the jury as claimed by the defendant : the omission, therefore, to charge on this point, was no injury to the defendant, and affords no reasonable ground for granting a new trial.

On the point respecting the exclusion of testimony, I st: nothing ip the declaration to warrant, the putting the character of the wife in issue. It is said, indeed, that the plaintiff has alleged, as a circumstance to aggravate damages,- that the defendant entered with intent to ravish, arid that tin defendant has a right to ¡¡rove, in mitigation, any thin which tends to shew that lie did not enter the house with that intent; and that for this purpose, he hada right t" prove that the wife was a woman of a lewd and abandoned character ; that this being proved, it would raise a ’strong-presumption, that he did not enter with that intent. To this, it is a sufficient answer to say, admiring her to bo a woman of the character described, it would furnish no such pr-sumption; though it might, indeed, lead to a conjecture, if he knew her character to be that, of a lewd woman, ilm he might expect less resistance in the accomplishment <■!' hi; object, than he would have expected in an attempt upon a woman of unshaken constancy and virtue.

Again, it is said, wherever, in any case, it is proper (.» c.insider circumstances of injury to the wife and daughter. In ■- nance ¡lie damages, (he character of (he wife or (laughter is >o he enquired of, that the -value of the thing injured may he ascertained. This position, Í think, is not correct, to the extent to which it is churned ; nor, is the inference applicable lo this case. Though no action lies for the master, for the battery of the servant, w ithout a per quod servilium amisit ; yet, in trespn-s for breaking a man’s house, and beating his servant, without laying per quod servitimn amisit, the beating of the servant may tie averred, or if omitted, may be given in evidence under alia enormia, to aggravate the damages, and to shew the extent of the injury ; yet, the worth of the servant, or the value of his services, could not be a subject of enquiry.

So, if a man get the maid or daughter of another with child, trespass will not lie for it, without a per quod, &c. yet, if the person who did the act, entered the house without leave, or against the will of the owner, he may bring trespass without a per quod, &c. and add this by way of aggravation. Yet, I apprehend, the character of the maid or daughter, could not be called in question, in such action ; because, the getting with child, is not specially laid as a ground of damages, but as a circumstance to shew the aggravated nature of the trespass.

Actions of this kind, differ materially from actions on the case, brought by the husband for seducing his wife, or by the father for debauching his daughter. In the former, per quod consortium amisit, is the gist, of the action, and what constitutes his right of recovery, is the corrupting the body and mind of the wife, by which, she becomes less capable of rendering him that aid, and of performing those duties, which she owes, as a wife, to her husband, and to which be has a just claim ; and on this ground, the reputation of the wife is fairly pat in issue ; for if the defendant can shew, that before, and at the time of the act charged, she was corrupt both in body and mind, he shews a fact, which goes directly ;o negate the fact on which the plaintiff relies for damages,

The same reasoning will apply in an action for debauching a daughter, per quod, &c. The per quod, does not relate mere-, & to menial offices ; the services of a dutiful and virtuous daughter, in the family of her father, are of inestimable value ; to these he has a just claim ; but if the defendant can shew, that he found the daughter already corrupt, the father must he contented with such damages as the services of such a daughter are worth.

For these reasons, I am satisfied, that the testimony offered to prove the character of the wife, was properly rejected r and that a new trial ought not to be granted.

The other j udges concurred in this opinion.

New trial not tobe granted.