Badder v. Keefer ( 1892 )

Grant, J.

This is an action on the case for seduction. Plaintiff had verdict and judgment.

1. Defendant requested the court to direct a verdict for the defendant,' upon the ground that the plaintiff could not recover under his declaration. The clause of the declaration upon which the request was founded was. as follows:

“Archibald L. Badder, plaintiff in this suit, by Lemuel and William K. Clute, his attorneys, comes into this -court, he being fully authorized so to do by his daughter Nora Badder, an infant of the age of, to wit, nineteen years, and complains, for and in behalf of said Nora Badder, of Ulysses Grant Keefer, defendant,” etc.

How. Stat. § 7779, provides that—

“ If the female seduced be a minor at the time of the ■seduction, the action may be brought by her father, mother, or guardian.”

It is contended that the statement in the declaration, that he is “fully authorized so to do,” negatives the idea that plaintiff brought, or intended to bring, the action by virtue of his being the father of the party seduced. We see no force in the objection. The declaration clearly states that the action is brought for and in behalf of his daughter. The expression, “ being fully .authorized by her so to do,” will be treated as mere .surplusage, since the declaration clearly shows for whose benefit suit is instituted. The court was correct in ■refusing the request, and in holding that the dam•ages were hers, and not her father’s. Watson v. Watson, 49 Mich. 545; Ryan v. Fralick, 50 Id. 483. In the latter case the declaration is given in full, and contains no such allegation as that in the present case. That suit was brought by the mother, the father being dead, and the declaration alleged only damages to the mother. The ■court offered leave to the plaintiff to amend, which she refused to accept, and thereupon verdict was directed for the defendant.

2. It is alleged that the court erred in allowing the mother of Nora to answer the following questions:

“Do you know whether the defendant kept company with your daughter in 1887?”

“ State to the jury how much they went together, as near as you can.”

“Do you know whether after this his attentions were-broken off that spring?”

The questions were competent, but a portion of the-answer to the last question was riot responsive. Defendant, however, did not move to strike it out, and took no objection or exception to it.

3. Several errors are assigned upon the allowance of leading questions to the witness Nora Badder. Such questions are largely in the discretion of the trial judge,, and appellate courts will reverse cases only when this-discretion has been abused. Campau v. Brown, 48 Mich. 147. There are many cases in which counsel are justified in the use of leading questions. In determining their propriety, the circuit judge must be largely governed by the intelligence, character, or timidity of the witness.. The case must be extreme to justify a reversal upon this ground. We find no such abuse in this case.

4. It was competent for plaintiff to show by the witness Nora that she yielded to defendant’s solicitations-under promise of marriage, and also to show subsequent acts of illicit intercourse. This is a civil case, and the-rule stated in People v. Clark, 33 Mich. 112, a criminal prosecution for seduction, does not apply.

5. Testimony was introduced by the witness Nora tending to show that the defendant proposed to her to procure an abortion, and also by a druggist that the defendant consulted him upon the same subject. This testimony was introduced upon the plaintiff’s case in chief, and before there had been any admission on the-part of the defendant of sexual intercourse with Nora. This testimony was admitted as tending to show the alleged seduction. Any admissions made by him tending to show his intercourse and relations with the girl were clearly competent, and could not be rejected on the sole ground that they would tend to prejudice the jury. The-testimony had a direct bearing upon the issue, and, if true, amounted to conclusive proof of his illicit intercourse with her, without proof of which her action must, of course, have failed. Upon cross-examination the defendant, who was a witness in his own behalf, was examined in regard to this conversation with a druggist. He admitted having a conversation with the druggist similar to that testified to by him. While the judge would undoubtedly have been justified in preventing the prosecution from proceeding to the extent it did upon this cross-examination, still we do not think he went so far as to commit a prejudicial error, nor is there anything upon the record to show that this was the result.

6. It is alleged that the judge excluded evidence of the reputation of Nora Badder. This claim is based upon the following: A witness for the defense testified that he saw Nora at a dance in January, 1888, and that she was there intimate with one Baldwin. The witness was then asked to state a conversation he had with Baldwin concerning his relations with her. Two other witnesses for the defense testified that they saw Nora, Baldwin, and Keefer at several parties during the winter and spring of 1889, and that she was rude, and inclined to flirting. One of these was then asked if he heard any remarks made as to her conduct; the other witness was asked whether she was. a quiet girl, or whether she was rude. This testimony was properly excluded. The first two questions were properly excluded as hearsay; the last question in no wise could affect her reputation for chastity.

We have carefully examined the charge of the court, and think that it correctly and fully covered the law applicable to the case. The law in such cases is well understood by the profession, and we deem it unnecessary to discuss it here.

The judgment should be affirmed.

Montgomery, J., concurred with Grant, J.