Anderson v. Aupperle , 51 Or. 556 ( 1908 )

Opinion by

Mr. Commissioner Slater.

1. At comomn law the only mode in which an action for seduction could be maintained is by bringing such action in the name of some person having a right to the services of the person seduced, the gist of the action being loss of service: 19 Ency. Pl. & Pr. 401; 4 Sutherland, Damages, § 3755. The mere relation of parent and child will not give a right of action for the seduction of an unmarried female. That of master and servant, either actual or constructive, must exist. If such a relation exists, it matters not to the cause of action whether the plaintiff be parent, or merely stands in the place of a parent: 4 Sutherland, Damages, § 3758. Such are the rules of the common law, and it is not contended here by defendant that under these rules, if they have not been superseded by statute in this State, plaintiff may not recover for the damages alleged. But it is argued by him that by Section 35, B. & C. Comp., as interpreted and construed by this court in Patterson v. Hayden, 17 Or. 238 (21 Pac. 129: 3 L. R. A. 529: 11 Am. St. Rep. 822), the right of recovery is limited to the father, or, in case of his death or desertion of his family, to the mother, for the seduction of a daughter, and that loss of service can no longer in this State be the basis for an action of seduction. At any rate it is claimed that since that decision a person not named in the statute suing for the seduction of a female ought to be limited to a recovery of actual compensatory damages for the loss of services, and be denied exemplary or punitive damages. The common-law remedy for loss of service is not displaced or superseded by a statute authorizing a father to maintain an action for the seduction of his daughter, without allegation or proof of loss of service (Shellman v. Frymire, 9 Ky. Law Rep. 894; Hancock v. Wilhoite, 1 Duv. [Ky.] 313), especially in the absence of any expression of a legislative intent that such shall be its effect: 25 Am. & Eng. Ency. Law (2 ed.), 201. Such statutes are usually treated as cumulative in their effect; but under any view or construction of this statute the common-law right of action of persons who stand in the relation of parent to the seduced female could not be affected one way or the other, for they are not mentioned in the statute.

2. As to the extent of the recovery in an action for seduction of a female, the plaintiff may recover exemplary damages when he is so connected with her as to be capable of receiving injury through her dishonor, regardless of whether malice existed. The act of seduction is necessarily willful.

3. In estimating the injury the jury may take into consideration, besides the loss of services and disbursements for medical treatment and other necessary expenses, the wounded feelings and affections of the parent, the wrong done to him in his domestic and social relations, the stain and dishonor brought upon his family, and the grief and affliction suffered in consequence of it, and give damages accordingly. If the action is brought by any other person than a parent, standing in the relation of parent, it will be governed by the same principles and rules of evidence : 4 Sutherland, Damages, § 1283. Hence no error was committed in overruling defendant’s motion to strike out parts of the complaint, or his demurrer thereto.

4. During the course of the trial, and while Viletha Thurman was upon the witness stand in plaintiff’s behalf, she was requested to bring forward ■ the baby to which she had testified she had given birth, and of which the defendant was the father. The child, being then a little under three months of age, was offered and received in evidence for the inspection of the jury, over the objections of the defendant. It is strongly urged by defendant’s counsel that it is error to expose, as an exhibit before the jury, a child less than three months of age for the alleged purpose of proving a resemblance to the defendant. The argument is that, “although a resemblance between the parties, properly proved, is some evidence upon the issue, but during the first few weeks or even months of a child’s existence it has that peculiar immaturity of features which characterize it as an infant, and that it changes often and very much in looks and 'appearance during that period” (Clark v. Bradstreet, 80 Me. 454: 15 Atl. 56: 6 Am. St. Rep. 221), and that such evidence, when deduced from the exhibit of an immature child, “is too vague, uncertain, and fanciful a nature to be submitted to the consideration of a jury” (Hanawalt v. State, 64 Wis. 84: 24 N. W. 489: 54 Am. St. Rep. 588). There is, however, a decided conflict of authorities upon the admissibility of such evidence, the adjudications ranging from a total exclusion thereof to an unqualified admission.

We shall not attempt a review of the cases to determine the correct principle of law which should govern the admission of such evidence, or to ascertain where the weight of authority lies; but it will be sufficient for that purpose to quote from the recent and most able opinion of Mr. Chief Justice Parsons in the case of State v. Danforth, 73 N. H. 215 (60 Atl. 839: 111 Am. St. Rep. 600), decided in 1905. After reviewing most of the cases on this point, he says, at page 219 of 73 N. H., page 841 of 60 Atl. (111 Am. St. Rep. 600), of the opinion:

“All the authorities concede, in effect, that there may be cases in which the maturity of the child, or the character of the peculiarities relied upon as a ground of resemblance or dissimilarity, render the child competent evidence on the issue of paternity. The objections urged to the competency of the evidence go rather to its weight than to its relevancy. When comparison is made to determine a difference of race or otherwise, greater weight may properly be given to the evidence; but the ground of its relevancy is the same as when the comparison is between individuals. The objection resting upon the immaturity of the child is merely to the definiteness of the proof. If all individuals developed by a fixed rule, it might be possible to fix upon- a certain age below which the child should not be exhibited as evidence on this issue. If there were such an age, its scientific determination would involve the finding of a question of fact upon physiological evidence—an investigation which this court has no means or power to make. Whether the features of a child are sufficiently developed to authorize its use as evidence by comparison with the alleged parent, is purely a question of fact. A court of law cannot determine this question of fact as a rule of law without evidence, upon their personal impressions, without basing their judgment upon a Vague, uncertain, and fanciful’ foundation. Conceding that resemblance properly proved is an evidentiary fact competent for consideration in connection with other evidence upon the issue of paternity, and that in certain instances or situations the individuals themselves may furnish evidence of such resemblance, the question whether the evidence offered by one of the individuals—the child—is sufficiently definite to have weight on the question in a particular case is a question of remoteness determinable at the trial term: Pritchard v. Austin, 69 N. H. 367, 369 (46 Atl. 188); Morrill v. Warner, 66 N. H. 572 (29 Atl. 412)

The cases on the subject are quite fully collected in Wigmore, Evidence, § 166, and in a note to State ex rel. v. Harvey, 52 L. R. A. 500. The conclusion of those authors that the weight of authority coincides with the rule announced in State v. Danforth, 73 N. H. 215 (60 Atl. 839: 111 Am. St. Rep. 600), appears to be sustained by an examination of the cases; and, as it meets our views, we must conclude that no error was committed when the evidence was received.

5. It was immaterial to the issues of the case whether or not Rena Richter, an elder sister of Viletha Thurman, who was also living in plaintiff’s family, objected when the latter was going with men other than defendant; and the question of that import, propounded to her on her cross-examination by defendant’s counsel, was not proper cross-examination.

6. The fact that defendant’s witness, Moore, had never in his life seen defendant with Viletha, although the witness had lived just across the street from plaintiff’s home for four years, and had been well acquainted with plaintiff and her granddaughters for two and one-half years, as he testified, did not tend to disprove the possibility or probability that defendant had been with plaintiff’s granddaughter, as alleged in the complaint; and therefore such evidence was immaterial and was properly excluded.

7. Error is claimed on the alleged ground that, on plaintiff’s motion, the court struck out that part of the testimony of Miss Roland where, on examination in .chief by defendant’s counsel, she related what was said between the plaintiff and Rena Richter with regard to the conduct of Viletha. The question addressed to the witness called for what Mrs. Anderson, the plaintiff, had said to this witness concerning that matter, but the answer contained a statement by Rena Richter to the plaintiff. It was this latter statement, and not what was said by Mrs. Anderson, that was excluded by the court on plaintiff’s motion. What Rena Richter may have said would not bind the plaintiff as an admission against her interest, and it would not be competent as impeachment of Rena Richter, because no proper foundation had been laid for the introduction thereof.

8. This witness, on her direct examination, also testified that she knew the general reputaron of Viletha Thurman for chastity in the neighborhood in which she lived prior to January 22, 1906, and that it was bad; but on cross-examination she admitted that her opinion was formed from what she had observed, and not from what she had heard others say, and that she had not talked to anybody in particular about the character of Viletha Thurman except just after this trouble began. On plaintiff’s motion the statements of this witness as to the character of Viletha Thurman were stricken out, and error is assigned on that account; but, if evidence of that character was admissible for any purpose, the witness had not proved herself qualified to testify upon that matter.

9. J. W. Parrish, having testified in defendant’s behalf that he had seen Viletha Thurman out upon the streets as late as 11 o’clock at night with strange men, was asked what kind of language he had heard Viletha use, as to swearing or anything of that kind. On plaintiff’s objection the court excluded the testimony, with the remark : “That does not affect her chastity.” What answer was expected to this question by defendant’s counsel does not appear; but, judging only from the form of the question, and assuming that the witness, if permitted to testify, would have said that Viletha swore, we should say that swearing by an unmarried female would not necessarily indicate a lewd or lascivious character. It would be an index of her general conduct as to civility or rudeness, and might be material on the question of damages; but it was not offered -specifically for that purpose, as the remark of the court clearly indicates.

10. The exclusion of the testimony of Elmer Russell is assigned as error. He testified that he had seen Viletha in company with one Fletcher, and that they were drinking beer, by the looks of things, at the schoolhouse; that he had seen them coming from the way of the Gallon House (meaning a place where beer was sold) with a bucket, which the witness took to contain beer; that they went in back of the schoolhouse and behind a pile of four-foot wood and out of sight. On plaintiff’s objection that the witness was giving merely his opinion as to what the parties were drinking the court struck out this testimony ; and that ruling we think was correct.

Defendant’s counsel have not urged as error the denial of his motion for a nonsuit, and, assuming that it has been abandoned, we have not considered it.

11. Defendant requested the court to give the following instruction:

“In order to determine whether or not the plaintiff was a chaste female at the time of the alleged seduction, it will 'be your duty to carefully consider all the evidence, if any, • throwing light upon that subject, such as specific acts of wantonness or incontinence, or general behavior tending to show wantonness or vulgarity. It will also be necessary to consider the evidence introduced before you of the general reputation of the plaintiff’s granddaughter for virtue and chastity, and if, after weighing all such evidence introduced by the defendant and by the plaintiff on the subject of the moral character, chastity, and virtue of the woman, Viletha Thurman, you come to the conclusion that the plaintiff’s granddaughter was not at the time of the alleged seduction a chaste female, then, as I have heretofore said, your verdict must be for the defendant.”

The court refused the instruction- requested, but instructed the jury as follows:

“You are not to consider the attempts to show the reputation of the girl, Viletha Thurman. The witnesses who attempted to testify on that subject were not qualified to so testify, within the rules of the law; and I renew the instruction which I gave to you during the trial: ‘You are not to consider any of that attempt to prove her reputation.’ The evidence on that part of the case to prove her chastity must be confined to proving acts of sexual immorality on her part. They are entitled to prove that by direct testimony, or by circumstances which shall convince you by preponderance of evidence that she was guilty of actual sexual intercourse with some other man than the defendant prior to the charge named in the complaint.”

To the refusal to give, and the giving of these instructions, defendant severally objected, and the question attempted to be raised is whether evidence of general reputation for unchastity is available in a case of this kind as proof of actual unchastity. But whether the unchastity of Viletha Thurman at and prior to the time of the alleged séduction may be established by evidence of her general reputation for virtue and chastity, as contended by defendant’s counsel in the requested instruction, or whether he is confined to direct testimony of sexual immorality on her part, or to proof of circumstances from which the fact may be fairly and reasonably inferred, as the jury were instructed by the court, need not be determined, for there was no competent evidence of her reputation for unchastity before the jury to be considered by them. The witnesses who attempted to testify on that subject were not qualified within the rules of law so to testify; and, as we have held, the court rightly rejected the proffered testimony. Therefore no error was committed by the court in confining the jury, when determining the issue of chastity, to direct testimony of acts of sexual immorality by Viletha Thurman, or to circumstantial evidence from which the fact might be inferred.

12. A general exception was saved to the giving of the following instruction:

“I also charge you that, although a woman has once been of unchaste character, she has a right to reform, and, if there has in fact been reformation, she may be again a subject of seduction”—-and to this, also, of the same import: “If you find that Viletha Thurman was of chaste character at the time of the charge named in the complaint, either on the ground that she had never had sexual intercourse, voluntaria, with any other man than defendant prior to this time, or on the ground that, although she was at one time unchaste, she had reformed, and, if you further find that the defendant seduced her, within the rules I have given you, you will proceed to consider the damages which should be awarded to the plaintiff.”

Two reasons are now urged to support the defendant’s challenge to the propriety of these instructions. The first one is that there was no evidence of a reformation by Viletha Thurman on which to base this instruction. The record, however, does not purport to contain all of the evidence, nor any more than plaintiff’s evidence in chief; and there is no declaration or statement in the bill of exceptions to the effect that there was no such evidence submitted. When the record is silent it will be presumed, in support of the judgment, that evidence was given of a nature to make relevant the instruction: Fleckenstein v. Inman, 27 Or. 328 (40 Pac. 87); Bingham v. Lipman, Wolfe & Co. 40 Or. 363 (67 Pac. 98).

13. The second reason urged is that the charge as given is too deficient in substance to be a correct statement of the legal principle sought to be applied, because it is said, arguendo, that the court failed to define what would constitute reformation sufficient to amount to a defense. The instruction is not entirely free from such criticism, but it correctly states a sound principle of law. At least we cannot say that it asserts an erroneous proposition of law as applied .to the case, for the facts as to the assumed reformation are not before us. The gist of the criticism is, that the instruction is deficient in fullness and does not go far enough in this respect; that it ought to have declared that the plaintiff’s granddaughter must have honestly abandoned and ceased her unchastity for a reasonable time before the 'alleged seduction took place. This defines what is meant by reformation. The necessity and propriety of such particularity would depend upon the facts as disclosed by the testimony, and under such circumstances a general exception is not sufficient upon which to base an assignment of error, but it was incumbent upon the party excepting, to call the attention of the court to the particular grounds upon which he objects, so that the trial court may have an opportunity to make the correction sought: Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309); Nickum v. Gaston, 24 Or. 380 (33 Pac. 671, 35 Pac. 31); Farmers’ Nat’l Bank v. Woodell, 38 Or. 294 (61 Pac. 837, 65 Pac. 520); McAlister v. Long, 33 Or. 368 (54 Pac. 194).

A number of other errors have been assigned and urged by defendant’s counsel; but, after a careful examination of each of them we are of the opinion that they are without merit, and will not therefore be considered in detail.

It follows that the judgment must be affirmed.

Affirmed.