Bracy v. Kibbe , 1859 N.Y. App. Div. LEXIS 93 ( 1859 )

By the Court, Pratt, J.

There existed in this case the relation of master and servant between the plaintiff and the girl seduced, which would entitle the former to sustain his action for loss of service. Although she was the illegitimate daughter of his wife by another man, and the law did not therefore clothe him, from that relation alone, with the rights of a parent, yet in this case it appears that the girl had been actually adopted by him into his family and had been bred and brought up by him. He stood, therefore, in loco parentis, and was clearly entitled to sustain the action. (Bartley v. Richtmyer, 2 Barb. S. C. R. 182. S. C., 4 Comst. 38.) The action will lie iti favor of a guardian, (3 Watts & Serg. 416,) or an uncle, or' aunt, who has brought up a niece, (2 Car. & P. 303, 2 D. & E. 4,) or one who has adopted and bred up‘the daughter of a deceased friend. (11 East, 23. 5 Barb. 661.)

I think the evidence, also, of the circumstances uiider which th’e girl was seduced, was proper; as the damages are not-confined to'mere loss of service, but the jury are allowed, by way of damages, to compensate the plaintiff for the injury to his feelings, any circumstances of aggravation must be admissible. But I think the referee erred in excluding evidence of previous lascivious conduct on the part of the girl. One of the considerations entering into the question of damages is the supposed loss on the part of the parent of the society of‘a chaste and pure daughter. If, therefore, the daughter had already become!' impure, the loss in that respect -would be much less. All the authorities concur that such evidence is admissible. (1 Greenl. Ev. § 54. 2 id. § 577. 7 C. & P. 308. 1 Phil Ev., Edw. ed. 760.) I think the 'evidence of the statement of the girl that her folks tried to induce her to charge the chile).- upon the' defendant, was improperly rejected. "She had been interrogated in regard to her saying that Bracy, and not the defendant, was the father of the child, and had attempted to explain it upon the stand, by swearing that she was induced to charge it to Bracy by promises from' the defendant. To meet this supposed explanation, it was clearly competent to show that she not only said the child was not, the defendant’s, but that she went further and said that she had been induced to lay it upon the defendant by the' plaintiff and other members of the family. It was proper, in contradiction of the statement, that she had been induced to lay it Upon Bracy by the defendant. For while she might be induced by the defendant to say the child was not his, there would be no necessity of her charging her parents with conniving at her accusations against the wrong party. It was therefore competent upon the question of credibility.

It was also improper to allow evidence of the reputed good Character of thé girl. Heir general reputation had not been attacked. Most of the evidence of specific acts of lewdness had been excluded; Her general reputation, therefore, did not appear to be in issue. (3 Seld. 378. 4 Comst. 493. 1 Cowen, 530.)

[Onondaga General Term, April 5, 1859.

These are all the errors which I have been able to discover iú the rulings of the referee. The evidence in relation to.the cohtract could not possibly do any injury. Besides, it was competent to show that the plaintiff had actually adopted her, and that she stood actually in the relation of servant to him.

Judgment reversed, and nUw trial ordered.

Pratt, Bacon, W. F. Allen and Mullin, Justices.]