Mighell v. Stone , 1897 Ill. App. LEXIS 181 ( 1897 )

Mr. Justice Lacey

delivebed the opinion of the Court.

This was an action on the case by appellee against appellant, alleging the seduction and debauching of the former’s unmarried daughter, Bena M. Stone, a girl of about nineteen years of age, by the appellant, a young man of about twenty-three years, and the consequent pregnancy of the daughter, and her being delivered of a child, claiming damages for th.e loss of services of his daughter, she being then his servant, and also the usual damages in such case, of the loss of her society, and disgrace thereby put upon himself and family.

There was a trial by a jury and verdict and judgment for appellee for $5,500.

The circumstances of the alleged seduction were that appellant, who resided with his mother, and appellee, who resided with his wife, two daughters and a son, the said Eena M. Stone being one of the daughters, were neighboring farmers, each residing on his own farm.

In the spring or summer of 1894, appellant asked and obtained permission of appellee to take his daughter Eena to a dance at one of the neighboring houses, which appellant did, in his buggy. At this time they were accompanied to the dance by appellee’s other daughter.

From this time, April, 1894, until in June, 1895, appellant was the suitor of Eena, and took her out riding evenings in a buggy and to various dances and to a circus, until the latter part of September, when appellant succeeded in having sexual intercourse with her, while out late at night by the road side, the two alighting from the buggy and performing the act on the ground. This act of sexual intercourse was. followed by two other acts in the buggy, on other occasions while Eena and appellant were out riding late at night..

At the second or third act Eena became pregnant, and was delivered of a female child July 14,1895.

The appellee cared for and procured medical attendance for his daughter during her confinement and subsequent sickness, but there was no evidence of the value of such services or of the amount of money appellee paid out for such medical services.

The evidence tends to show that Eena’s consent to the acts of sexual intercourse, especially the first, was procured by a persistent course of importunities and blandishments on the part of appellant, arid a promise that he would marry her if she became pregnant, and that when she became with child he refused to do so, but left the girl to suffer her mortification and disgrace alone, thus casting serious and lasting disgrace on the entire family, including appellee, and caused him untold misery and mortification.

The evidence tended to show that appellee’s daughter Rena had been in delicate health from the time she was fourteen years of age and afflicted with nervous disorder; that she had been under the care of various physicians, had been for over a year confined to her bed, and had in fact only partially recovered her health a short time prior to appellant’s attentions to her.'

The evidence further tended to show that she had always been of good moral character and reputation before that time, and had been in society but little. •

The appellant, by his counsel, insists that the evidence fails to support the verdict, in that there is no evidence to establish the charge of seduction, and that the carnal intercourse took place because the appellee’s daughter “ was devoid of the ordinary instincts of virtue;” hence no grounds in the evidence for the giving of exemplary damages.

We have examined the evidence carefully, and see no room for doubt that Rena JVL Stone was a virtuous girl, and that her consent to the immoral acts was obtained by' appellant by acts arid conduct that marks him as a seducer, and that under circumstances of peculiar aggravation, and the jury was justified in so finding by its verdict and in awarding punitive damages.

The appellant claims that he should have a new trial because appellee, induced one of his witnesses to depart, by whom he expected to prove that other young men than himself had kept Rena’s company during the year 1893. The name of the witness was Elmer Conrie, who it • is claimed had kept the company of Rena prior to the time that appellant commenced his attentions. While the conduct of the appellee was reprehensible in that regard in the highest degree, we do not think that it would be sufficient cause for reversal. First, because the appellant did not ask for a continuance on account of the witness’ absence; secondly, the evidence was not of a kind that was very material, but was merely cumulative.

It is complained that the court erred in admitting improper evidence. To this charge we have to say that though the court could have properly excluded some of the objectionable evidence, yet if any error was committed in that regard it could have had no injurious bearing against the appellant, nor could it have misled the jury, and any such slight errors would not be grounds for reversal.

The first, third and fourth of appellee’s instructions are complained of by appellant.

The first, that it submitted the right of recovery for physician’s services furnished by appellee for his daughter in confinement, “as the jury believe, from the evidence he has sustained,” when there was no evidence that appellee had paid out or was liable for any mone}r for such purpose. We do not think this was reversible error even though technically erroneous, for the reason that the jury could not have been misled. If there was no evidence the jury would not allow for any charge of that kind under the instruction. And then appellant is estopped to complain, for a similar instruction was given at his own instance, permitting recovery for such expenditure, if any.

The appellant objects to the third and fourth instructions given for appellee, in that they give the right of recovery for the wounded feelings of appellee and the dishonor and disgrace of appellee’s family, in case the appellee’s daughter was seduced by the appellant in manner and form alleged in the declaration.

It is objected that there was no charge in the declaration of seduction, but only appellee’s daughter was by appellant “ debauched,” and that he carnally knew her and that she became pregnant, etc.

We think the declaration is in the usual form and according to approved precedents (2 Chitty Pl. p. 643; 1 Chitty Pl. p. 134,) and that the word “debauched” is intended to cover the charge of seduction. White v. Murtland, 71 Ill. 250.

The question, of seduction was before the jury on the issue made in the declaration, and if made out it entitled the appellee to recover for the damages specified in the instructions complained of.

Besides this there could have been no misunderstanding on the part of the jury on this issue, as appellant’s instructions specifically defined what amounted to seduction, and unless it was proven no damages of the kind could be recovered.

We see no error in these instructions when explained by those given for appellant. The fourth instruction does not assume the appellee was entitled as matter of right to exemplary damages. It told the jury that appellee was entitled to recover such damages, among other, for the disgrace brought on himself and family as the jury should deem proper. This instruction is not subject to the criticism offered, for the reason that under it the jury had a discretion to say whether any such damages were proper under the evidence.

If the jury gave any on such account appellee was entitled to it, but not if the jury deemed such damages improper under the evidence. The court did not err in modifying or refusing any of appellant’s instructions.

The amount of damages, while large, we do not think exceeded what the jury had a legal right to give. The consequent injury to appellee and his family, caused by appellant in seducing his daughter, can scarcely be compensated for or satisfied in money.

In some communities and in the minds of good citizens the father is morally justified in taking the law in his own hands and slaying the seducer of his wife or daughter. While such a sentiment can not be approved, as being opposed to the laws of the land, yet it shows with what horror and indignation such an act is received in a civilized community.

Seeing no error in the record the judgment of the court below is affirmed.