Franklin v. McCorkle ( 1886 )

Freeman, J.,

delivered the opinion of the court.

This is a suit brought by the father for the seduction of his daughter, a minor of about eighteen years. The suit is not, in common . law form, based on the idea of loss of service, which, however, by later authorities, was but a legal fiction, the real gravamen of the action being the seduction. The statute simply dispenses with this fiction and gives the parent the right to sue, “ although such daughter be not living with nor in the service of the plaintiff, and though there be no loss of service.” It is also provided, that a recovery in one suit by the father or mother, or daughter, shall be a bar to all other actions for the same cause. See Code (M. & V.), sec. 3501, et seq. This was intended to limit the recovery to one suit, the daughter or female, as well as father and mother, being authorized to sue by other provisions of the statute. It is seen from these provisions that the suit now before us is simply for the seduction of the daughter, and any allegation of loss of service 'unnecessary, unless it might be as a basis to aggravate or increase the damages resulting from the seduction, which is the substantive cause of complaint and basis of the recovery sought.

The case was not placed dn the jury docket under the statute, but left by the pleadings to the decision of the circuit judge, who gave judgment for the plaintiff in the sum of $3,000, finding the facts and embodying them in the judgment on which his conclusion rests.

The main question presented is on the plea of the' statute of limitations of one year (M. & V. Code, sec. 3469), interposed by the defendant. The suit was commenced July 13, 1880, so that if “the cause of action has accrued,” to use the language of our statute, twelve months before that period, or no cause of action has accrued within that period, the action is barred by section 3469, providing that “action for seduction shall be barred within one year after the cause of. action accrued.”

The facts as found by his Honor, the -.circuit judge, are, “that defendant seduced the plaintiff’s daughter in March, 1879, having sexual intercourse with her by promising to marry her, and promising to shield her from disgrace. These facts, the court says, “he finds as a matter of law to be seduction.” The court then finds, .as a matter of fact, that defendant continued to have sexual intercourse with plaintiff’s daughter two or. three times a month, until the last of August or September, 1879; that on each of said occasions the defendant obtained consent by an implied, if not expressed, promise to marry and shield her from disgrace, and that each subsequent act of intercourse by defendant and plaintiff’s daughter, as long as it was kept up, was substantially like the first. The first time defendant expressly promised to marry her, and by that means secured her consent; after that he impliedly promised to marry her, and by that means secured her consent, and as the intercourse was kept up to within twelve months before bringing suit, his Honor held the action not barred by the statute of limitations. The question is, was this a correct view of the law?

The cause of action, both as given in thé language of the statute, and by the declaration of plaintiff setting out the grounds of his suit, is the seduction of the daughter by the defendant, and in the declaration, we believe, in all . the courts, giving the date of the wrong, it is stated to have occurred on August 25, 1879.

The language of the two sections of the statute is, Section 3501: “An unmarried female may prosecute an action for her own seduction and recover such damages as may be found in her favor.” Section 3502: “A father, or in case of his death or desertion of his family, the mother, may bring a suit for the seduction of a daughter, although such daughter be not living with nor in the service of the plaintiff, and though there be no loss of service.”

If is obvious, from this, that the seduction of the daughter is the cause of action, and so, as we have said, the declaration is based on this as the wrong complained of, and for which the recovery is sought. Whenever this act had been perpetrated and was com. píete, a cause of action had accrued to plaintiff, his daughter, or, if the father was dead or had deserted his family, then to the mother, and a right of recovery for such wrong is given, and accrues to the parties thus entitled to sue. Adding then the language of the statute of limitations, and the rule would be, that the cause of action accrues to the parties whenever the act of seduction is complete, and a right of recovery for this wrong given, provided the parties to whom' the right to sue is given shall bring suit within twelve months after said cause of action accrues, that is, after the wrong has been done by the seduction .of the unmarried daughter. This is the plain meaning of the statutes cited, the language being so clear as not. to admit of doubt or mistake.

What, then, is the force and meaning of the word seduction, and what does it involve; what act does it designate? Mr. Worcester, in his Dictionary, defines its legal meaning to be, “the offense of a man who induces a woman to surrender her chastity.” This is strictly accurate, both philologically and according to the common and well understood meaning of the term. It is the despoiling a woman of her virginity. Today she is a virgin, she yields to the seducer, and she is no longer a virgin, but has lost this womanly treasure, and is degraded by the act into the ranks, of the despoiled, and unchaste, and' no human power can restore her to what she was before the fatal error. It may also, by some of our cases, be, where the woman, after having been seduced, has again returned to and is walking in the path of virtue. But in both cases the act is complete when the chastity of the party is surrendered. It is also beyond question, that this result is effectually produced, and the act, if seduction, as complete by one act of sexual intercourse, though the amount of moral wrong and consequent depravity attending all sin and violation of the great fundamental laws of morality may not be the same in the case of the single act as where the party persists in her evil course. His Honor, the circuit judge, in fact, has found that she- was seduced in March, 1879, when the first act of criminal intercourse occurred. If this be correct, and it certainly is, then it follows, necessarily, that at that time a cause of action accrued to the party entitled to sue. In fact, no one can doubt, that if the father had sued the next day, the right of recovery would have been complete. The only element of difference, as between the case then and as now presented, would have been, that in the case of repeated outrage and wrong, at last terminating in the birth of a child, these additional elements would add to and swell the measure of damages, just as in the case of a trespasser upon land who remains in possession, and thus continues the wrong; he will be held to respond in damages for this continued extrusion of the party from his property, but the cause of action accrued when the original entry was made; or, in case of a trespass, by throwing down one’s fence enclosing his growing crop, the cause of action accrues at the time of the original entry; the destruction of ■ or injury done to the crop is a natural result of the original wrong, as the birth of the child is in this case, and so the recovery would be had for the original wrong, and, as resulting from that, the additional injury done to the crop.

The theory of his Honor is, that there was another act of seduction every time an act of sexual intercourse took place after the first one, and this on the notion that the daughter yielded each time by reason of an implied new promise to marry. But the finding on this subject, and the facts, simply show and mean, that she yielded her virtue originally on such promise, and without this promise being withdrawn she continued to permit acts of sexual intercourse for the five or six succeeding months. This is all of it. There was no refusal at any time, nor any interposition of a new promise to marry, to induce compliance with subsequent requests for sexual gratification. In fact, we cannot fail to suspect, from what we see in this record, that the sexual desire was dominant in the girl herself, prompting to unlawful indulgence. She certainly does not show an aversion or any disposition to be sensitive on this point during the continuance of the illicit relation between the parties. This theory of his Honor is simply a forced assumption from the facts, and not at all ' necessary to a true statement of the actual transaction.

A conclusive answer to his Honor’s theory, however, is found in the fact, that if true, it involves the proposition that for any act of sexual intercourse there accrued a cause of action, and so in this case there was matter for fifteen or twenty suits, or else it must be held the cause of action is not complete, does not accrue, so long as the criminal connection lasts, and so the seduction is not complete so long as a like act of criminal intercourse with the first was kept up. Neither view is sound, and so to hold would violate both the proprieties of our language, as well as the well understood meaning of the term seduction.

It is argued the case of Thompson v. Clendening, 1 Head, 288, sustains the theory of his Honor, but on looking to its facts we think the contrary is the principle there announced, precisely in accord with the theory of this opinion. The court below simply permitted evidence of sexual intercourse between the parties beyond the period of limitation, not to take the case out of the statute, but as tending to show the defendant was the father of the child, and also in aggravation of damages. This court, approving this ruling, said: “The whole of the defendant’s intercourse with the person seduced and all the circumstances of the case are to be regarded as an entire transaction, and are admissible as evidence to the jury, as well in view of the question whether the defendant is the father of the child, as to show the extent of the injury in aggravation of damages”: Thompson v. Clendening, 1 Head, 295, 296. This is all clearly correct, but does not tend to support the theory that a new cause of action accrued at each act of criminal intercourse, nor the other referred to, that it takes a series of acts of intercourse to complete the seduction of a female, or that the seduction is only complete when the parties cease to sin against the' law of chastity and propriety.

Our feelings of aversion to the conduct of the defendant tend to make us very earnestly wish to see him compelled to respond in damages for the wrong he has done, but these feelings can not be allowed to control established principles of law. The Legislature has chosen to say, a party shall sue for the seduction of his daughter within twelve months after the cause of action accrues, and not within twelve months after the last act of fornication. We must hold the latter proposition to be the law • to sustain this suit, but this would be to make, not enforce, the law. It is not so written.

The change made in our law by the section of the Code quoted amounts to this, that the old action, based on the fiction of loss of service, is now given in form for the seduction, as it always was in practice, and the statute of limitation prescribed for. this action is one year instead of three, as formerly. Be this as it may, however, as we have said, this is an action in form and substance under the statute, the seduction being the cause of action, and that on August 25, 1879, and in perhaps two or more counts it stated as a fact that the daughter was under twenty-one years, lived with the father, and the birth of the child is charged, as is proper, by way of aggravation of damages. There is no averment of performance of, or loss of service. We are compelled to apply the statute or evade or disregard it, which we are not at liberty to do. In addition, we add, .that our own cases, as well as the uniform consent of authorities, adopt the theory that all the attending circumstances, such as the length of time in which the criminal connection has been kept up, as in the Clendening case, 1 Head, 288, the birth of a child, the expenses of lying in, such as medical attention and the like, are to be looked to in aggravation of damages: See Smith v. Yaryan, S. Ind., 35, Amer. Rep., 324-5. This being so, it necessarily implies that these circumstances are not the substantive cause of action, but only aggravating incidents and results of a pre-existent and complete cause of action on the part of the party entitled to sue. The cause of action is the seduction, the deflowering or debauching of a maiden, or seduction of an unmarried woman,' then walking in the path of virtue, and leading her, by persuasion or false promises, into the pathway of vice. Whenever this is done, the cause of action accrues, and the suit must be brought within twelve months from the accrual of'the cause of action by the imperative terms of the statute. There can, in the nature of things, be but one seduction under a single promise to marry, as in this case, though the act of sexual intercourse may be repeated. The seduction is complete, when, relying in that promise, the woman yields her person to the embrace of the deceiver; after this, it is but illicit cohabitation.

The fallacy that underlies the view of his Honor, the circuit judge, is, in confounding the right to sue for the seduction, with the breach of the contract to marry, by which the seduction was effected. Suppose the father or daughter had sued, after the first act of intercourse in March, for the seduction, and Franklin had plead in defense to that suit, that it was true he had promised to marry as charged, and by reason of such promise had obtained and continued to have sexual intercourse, but that he was then ready to marry as promised; would this have been any defense to the action? No one, we take it, would so maintain. But why ? Simply because' the fact of the con-tinuanee of the promise and intercourse and readiness to perform the promise, has nothing to do with the right to sue for the seduction. The father certainly could maintain the suit, even though the marriage was, i.n fact, afterward consummated, and if consummated after commencement of his suit, a plea • setting up that fact, while it might go in mitigation of the damages,'would be no defense whatever in bar of the action.

We think this conclusive of the case. We therefore hold his Honor erred in his view of the law, reverse his judgment and give judgment for the defendant on the plea of statute of limitations.

Judges Cooke and Turney dissent, and agree with the ruling of the court below.