Rumler v. Gantt ( 1922 )

September 1, 1922. The opinion of the Court was delivered by The statement of facts in the record shows: This action was brought for damages for loss of services of plaintiff's daughter and for shame, humiliation, and mental anguish caused by the defendant's seducing, debauching, and carnally knowing her. The defense was a general denial that the daughter at the times mentioned in the complaint and prior thereto was of unchaste and disreputable character; that her unchastity was notoriously known in the community where she resided; that another than the defendant was the father of the child born unto her; and that plaintiff was grossly negligent and careless in allowing his daughter to take automobile rides with the defendant, both in the daytime and in the nighttime, knowing the defendant to be a married man, thereby contributing to his injury as the direct and proximate cause of same. According to defendant's testimony, the daughter, at the time of the admitted carnal knowledge, was not 16 years of age, while he was 35 years of age, having a wife and four children. The jury rendered a verdict for the plaintiff, on which judgment was entered. Thereupon defendant appealed.

The first exception alleges error in permitting the exhibition of the daughter's child to the jury, over the objection of the defendant, for the purpose of showing that the defendant was the father of the child. It was competent to exhibit the child to the jury to show its resemblance to the putative father, which was one of the facts in issue. State v. Whittaker, 103 S.C. 212;87 S.E., 1001; Ann. Cas., 1918E, 467; State v. Teal, 108 S.C. 455;95 S.E., 69.

The second exception alleges error in the admission over defendant's objection, of testimony that a warrant had been sworn out against the defendant. It is not shown wherein this was prejudicial to the defendant, and we cannot say it was from the reading of the record. This exception is therefore overruled.

The third exception is:

"Because his Honor erred in making the following statement in the presence of the jury shortly before the dinner recess, after only two witnesses for the defendant had been examined, namely: ``All right. I can't imagine that they will be very helpful, but I'll give you until 3 o'clock, but I'm not going to let you put in incompetent testimony' — the said statement having been made when the defendant's attorney requested about 20 minutes before the dinner recess that a recess be taken in order for him to talk with some of his witnesses so that the case could be expedited, and after said statement was made several witnesses were sworn by the defendant, said statement by the presiding Judge being greatly detrimental and prejudicial to the rights of the defendant and misleading to the jury."

After the defendant and one of his witnesses had testified the following colloquy occurred:

"Mr. Carey: We have some witnesses that I haven't had an opportunity to talk to, and if your Honor will allow the case to go over until 3 o'clock I believe we can make better time. I think they will be short, but I would like to see what they are to say before I put them up.

"The Court: All right. I can't imagine that they will be very helpful, but I will give you until 3 o'clock, but I am not going to let you put in incompetent testimony."

So far as the record discloses every witness thereafter offered by the defendant was sworn, and none of the testimony offered was objected to. No new testimony was thereafter offered except from one witness, who testified that the daughter shortly prior to the birth of her child told him that a person other than the defendant was its father. This issue was submitted to the jury. As to the burden of proof the Judge charged the jury correctly, fairly, and at length. Reviewing the whole case, and especially the charge so fairly submitting the issues to the jury, we fail to see wherein the defendant has been prejudiced, or the jury misled, as charged in this exception. It is therefore overruled.

The fourth exception is:

"Because his Honor erred in not charging defendant's second request to charge, which is as follows: ``If you believe from the evidence that the course of conduct which existed between the daughter of plaintiff and the defendant, and allowed to exist by the plaintiff, was so gross as to warrant a presumption of assent, and would inevitably result in the seduction or intercourse, the said plaintiff would not be entitled to recover any damages in this action, — the presiding Judge modifying said request in the following words: ``I charge you that if plaintiff knew of the conduct of his daughter and the defendant that was reasonably calculated to put a reasonably prudent man upon notice that his daughter would probably be seduced and did nothing to prevent it, then these circumstances ought to mitigate damages. In other words, if the plaintiff failed in his methods of dealing with his daughter and tended to her dishonor, then that would be a mitigation of damages, and ought to reduce the damages to the actual expense of the confinement and loss of services. I suppose that is what he is trying to say here. That is what I charge you the law is anyway, right or wrong.' It is respectfully submitted that said modification is erroneous and not the law."

The requested charge involved a statement as to a presumption of fact, and would take from the jury the consideration of testimony rebutting the presumption. The presiding Judge was correct in refusing to charge in the language requested. The modification of the request by the presiding Judge in charging that "if plaintiff knew of the conduct of his daughter and the defendant that was reasonably calculated to put a reasonably prudent man upon notice that seduction would probably result, and if he did nothing to prevent it, these circumstances ought to mitigate damages," embodies a correct statement of the rule as to measure of damages in cases such as this one. The rule is thus stated in 35 Cyc., 1314:

"Careless indifference on the part of the parent as to the daughter's chastity, affording facilities for criminal intercourse between her and the defendant, or the fact that the parent was indiscreet, or that there was connivance on his part in bringing about the intercourse, may be shown in mitigation of damages."

This exception is overruled.

The judgment is affirmed.

MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.