Garretson v. Becker , 52 Ill. App. 255 ( 1893 )

Mr. Presiding Justice Boggs

delivered the opinion of the Court.

The action was case, brought by defendant in error to recover damages for the alleged seduction of his daughter by plaintiff in error.

The judgment upon the verdict of the jury was for the defendant in error in the sum of §1,700. The errors assigned are (1) that the verdict is not supported by the evidence; (2) the court erred in giving instructions No. 2 and 5, given in behalf of the defendant in error; (3) that the damages are excessive.

We were favored in this case with able and exhaustive oral arguments of counsel in addition to the printed briefs and arguments, which are full and complete. Counsel and client may feel that nothing has been left undone to bring the facts and law of this case fully before the court. We have read carefully the testimony submitted to the jury by the respective parties. It is contradictory and conflicting, and the weight and value of much of it depended upon the credit given to certain witnesses who either testified falsely or were grossly mistaken.

The judge and the jury who tried the case in the Circuit Court, and there saw the different witnesses and heard them testify, had advantages vastly superior for the ascertainment of truth and the detection of falsehood, error or mistake, over this court, sitting as a court of review, and having before it only the words of the witnesses in writing in the record. It is not complained that improper testimony was received or proper proof rejected. The evidence produced on behalf of the defendant in error, if accepted as true, and believed, as it seems to have been by the jury, seems to us amply sufficient to uphold the verdict. It Avould serve no good or useful purpose to refer to it in detail and could not but be unpleasant to all persons concerned to have a recitation of the testimony in behalf of the plaintiff printed in a book of the opinions of this court. We therefore forbear to say more than that the evidence submitted to the jury was conflicting; that it was the peculiar province of the jury to reconcile it if possible, and to believe and credit one witness and discredit and disbelieve another as they found reason so to do; that the evidence produced in behalf of the plaintiff Avas sufficient to justify the finding and that when all this is true a verdict of the jury is not to be disturbed by a revieAving court on the ground of insufficiency of the evidence. I. C. R. R. Co. v. Gillis, 68 Ill. 317; Calvert v. Carpenter, 96 Ill. 63.

The objection to instruction No. 2 is that it, as counsel insists, assumes that the defendant in error lost the services of the daughter and erroneously directs the jury that the mental suffering of the entire family of the defendant in error (which counsel suggests includes the daughter who was seduced), might be taken into consideration as an element of damages if they found for the plaintiff below. It was proven and not contradicted that the daughter was a member of the plaintiff’s household, that she rendered services to some extent as a housekeeper and also as a clerk in his business as a retailer of dry goods, groceries, etc., and likewise it appeared, without contradiction, that in consequence of the seduction she became pregnant, the mother of a child, sick, etc., etc., and .therefore unable to work.

The instruction only assumed as being true, facts that were uncontroverted, which may be properly done. The instruction will not bear the construction put upon it by counsel as to the elements of damages. It does not authorize the jury to consider the mental suffering of the girl who was seduced.

The instruction is that “ besides loss of service you may give such additional damages for wounded feeling, mental suffering, and for the dishonor of the plaintiff and his family as you may deem compensation therefor under the evidence.”

The common law gave the father an action for the seduction of his daughter upon the ground alone that he was entitled to, and by the seduction had lost her labor and services- and the measure of his damages was only such as resulted, from the disabling physical injury to a servant. While we yet preserve the old doctrine that the father must prove that the relation of master and servant existed, yet it is little more than a legal fiction, and proof of the nominal relation of master and servant is all that is required to give the father a standing in the courts. Proof of the slightest service is sufficient (Doyle v. Jessup, 20 Ill. 460; 21 Eng. & Amer. Ency., 1010, 1011 and 1012); and when proven and the cause otherwise established, the extent of the recovery is not limited to the value of the services lost to the parent as a master, but the shame and mortification of the father, the injury to the good name and character of the family of Avhich he is the head, and the mental suffering of the father because of the dishonor to his family, are proper elements of damage. Yundt v. Hartrunft, 41 Ill. 9; 21 Amer. & Eng. Ency., 1010, 1011 and 1012.

Tested by these views the instruction is not open to criticism.

Instruction No. 5 does not, as counsel for appellant urge, instruct the jury that “ it makes no difference what the age of the daughter is,” but the instruction is that the age of the daughter is unimportant, providing “ she was residing with him as a part of his household and rendering him service,” etc. If the daughter is a minor and unmarried, the father is entitled by law to her services, and the relation of master and servant need not otherwise be proven. If the daughter is an adult it must appear, that she resided in the family of the father, and there must be some proof of slight acts of service, and if such be proven the age of the daughter is immaterial. The instruction was properly given. 21 Amer. & Eng. Ency. of Law, page 1016, and cases cited, note 2.

As no reason appears demanding the reversal of the judgment, it is affirmed.