§ 471.

SEDUCTION.

53

curious to see how the practice of giving damages beyond the mere value of the service has grown up. As late as the latter part of the last century, in a case tried before Mr. Justice Chambre, the action being brought by the father for the seduction of his natural daughter, the judge charged the jury that they must consider the female merely in the character of a servant, and award the plaintiff compensation for the loss of service only.' In the year 1800, Lord Eldon, then chief justice of the Common Pleas, in an action tried before him, told the jury that they were to look, not merely to the loss of service, but to the wounded feelings of the party.' In 1805, Lord Ellenborough, in a case before him, told the jury that "damages might be given for the loss which the father sustained by being deprived of the society and comfort of his child, and by the dishonor which he receives." And finally, the same learned judge on a motion to set aside an inquisition in a case of seduction, on the ground of excessive damages, said that this proceeding was one sui generis, where, in estimating the damages, the parental feelings and the feelings of those who stood in loco parentis, had always been taken into consideration; and although it was difficult to conceive on what legal principles the damages could be extended ultra the injury arising from the loss of service, yet the practice was now inveterate, and could not be shaken." "The action for seduction," says the Supreme Court of New York, "is peculiar, and would seem to form an exception to the rule that actual damages only can be recovered when the action is for loss of service consequential upon a direct injury; but there the party directly injured, cannot sustain an action, and the rule of dam

1 Selwyn's Nisi Prius, 7th ed. 1116.

See note to Andrews v. Askey, 8 Car. & P. 7.

See same note.

Irwin v. Dearman, II East 23.

ages has always been considered as founded upon special reasons only applicable to it." In a case brought by the mother, in 1837, Tindal, Chief Justice of the English Common Pleas, directed the jury that they might give damages for the distress and anxiety of the plaintiff.' As to the right of recovery, however, the English cases adhere to the original idea on which the action is founded. So, if there is no proof of loss of service whatever, there can be no relief.' So, although the defendant be guilty of the seduction, but the jury are of opinion that the child is not his, the plaintiff cannot recover.' In other words, without some damage to the plaintiff or master, occasioned by the illness of the female, and resulting from the illicit intercourse, the plaintiff is without relief.**

§ 472. Damages governed by legal rules.-* Where the jury were directed or supposed they were directed, that damages might be given for bringing up the child, the fruit of the illicit connection, the Supreme Court of New York granted a new trial, on the ground that the plaintiff, the master, was under "no legal obligation to support and educate the child; that he could not be compelled to appropriate the proceeds of the verdict to that purpose; and that the verdict would not afford the defendant any exemption from his liability to provide for the child, when called on in the regular course of the law." () This, in effect, declares that the damages are to be measured by strict legal rules, or at least asserts the principle already stated, that even in cases of aggravation, where it appears that the jury did not intend to give vindictive, but only compensatory damages, and

1 Whitney v. Hitchcock, 4 Den. 461. 'Andrews v. Askey, 8 C. & P. 7.

4

3 Grinnell v. Wells, 7 M. & G. 1033. Eager v. Grimwood, I Ex. 61.

(*) See, also, Hitchman v. Whitney, 9 Hun 512; Haynes v. Sinclair, 23 Vt. 108; but see Terry v. Hutchinson, L. R. 3 Q. B. 599; 9 B. & S. 487.

§§ 473, 474.

EXEMPLARY DAMAGES.

55

on that point were wrongly instructed, such course will be taken as to restrict the compensation within legal limits.1 **

$ 473. General rule.-In an action for the seduction of his daughter, the father, or one who stands in his place, recovers not only for the actual loss of his daughter's services and the medical expenses of her illness, (*) but also for his wounded feelings and affections,() for the wrong done him in his social and family relations,(°) and for the stain and dishonor brought on the family.() And in order to estimate such injuries, the general good character of the plaintiff's family may be shown.()

474. Exemplary damages.—As a general rule, exemplary damages may always be given. (') Where the relation of master and servant exists by convention only, as where the plaintiff's daughter is of age, the recovery will not necessarily be restricted to compensatory damages.(*) Nor although the statute authorizes the daugh-, 5 Cow. 106. See, also, Edmondson v. Machell, 2 T. R. 4.

1 Sargent v.

(*) Pruitt v. Cox, 21 Ind. 15; Coon v. Moffitt, 3 N. J. L. 436; Akerley v. Haines, 2 Cai. 292; Hogan v. Cregan, 6 Robt. 138.

() Herring v. Jester, 2 Houst. 66; Kendrick v. McCrary, 11 Ga. 603; Pruitt v. Cox, 21 Ind. 15; Felkner v. Scarlet, 29 Ind. 154; Taylor v. Shelkett, 66 Ind. 297; Hatch v. Fuller, 131 Mass. 574; Coon v. Moffitt, 3 N. J. L. 436; Hornketh v. Barr, 8 S. & R. 36; Clem v. Holmes, 33 Gratt. 722.

(c) Herring v. Jester, 2 Houst. 66; Parker v. Monteith, 7 Ore. 277; Clem v. Holmes, 33 Gratt. 722.

(4) Herring v. Jester, 2 Houst. 66; Kendrick v. McCrary, 11 Ga. 603; Felkner v. Scarlet, 29 Ind. 154; Taylor v. Shelkett, 66 Ind. 297; Wilhoit v. Hancock, 5 Bush 567; Coon v. Moffitt, 3 N. J. L. 436; Parker v. Monteith, 7 Ore. 277; Hornketh v. Barr, 8 S. & R. 36; Clem v. Holmes, 33 Gratt. 722; Paterson v. Wilcox, 20 Up. Can. C. P. 385.

(*) Parker v. Monteith, 7 Ore. 277; Wilson v. Sproul, 3 Pen. & W. 49. (Edmondson v. Machell, 2 T. R. 4; Irwin v. Dearman, 11 East, 23; Ball v. Bruce, 21 Ill. 161; Bartley v. Richtmyer, 4 N. Y. 38, 44; Ingersoll v. Jones, 5 Barb. 661.

(*) Lipe v. Eisenlerd, 32 N. Y. 229; Badgley v. Decker, 44 Barb. 577.

ter to sue in her own name, will they be thus restricted in an action brought by the father. (*)

$475. Aggravation.-Evidence of the pecuniary condition of both plaintiff and defendant has been held admissible, not for the purpose of ascertaining how much the defendant can pay, but how much the plaintiff has been injured. () Evidence of an abortion produced by the defendant is not inadmissible on the ground that the damages it tends to prove are too remote. (c) It has been held that in this action no evidence can be given as to any promise of marriage, either with reference to the right of action or measure of damages; the remedy for the breach of that contract belonging to the female in her own name.(") Thus, in the King's Bench, Lord Ellenborough said: "The daughter may be asked whether the defendant paid his addresses to her in an honorable way; further than that you can on no account go. So, in New York, in such a case, it has been held incorrect to admit this description of evidence, whether the judge instructs the jury that they may give damages for the seduction, and also for the breach of the promise, or whether he admits it only to prove the seduction, but not to enhance the damages.'

§ 476. Mitigation.-Proof of indifference on the plain

'Dodd v. Norris. 3 Camp. 519. See, also, Tullidge v. Wade, 3 Wils. 18.

Foster v. Scoffield, 1 Johns. 297; Clark v. Fitch, 2 Wend. 459; Gillet v.

(*) Stevenson v. Belknap, 6 Ia. 97.

Mead, 7 Wend. 193. See, also, Brownell v. M'Ewen, 5 Denio 367; Wells v. Padgett, 8 Barb. 323.

() Herring v. Jester, 2 Houst. 66; White v. Murtland, 71 Ill. 250; McAulay v. Birkhead, 13 Ired. 28; and to affect exemplary damages, Clem v. Holmes, 33 Gratt. 722; Lavery v. Crooke, 52 Wis. 612. But contra, Watson v. Watson, 53 Mich. 168; Dain v. Wycoff, 7 N. Y. 191.

(c) White v. Murtland, 71 Ill. 250; Klopfer v. Bromme, 26 Wis. 372.

(d) Whitney v. Elmer, 60 Barb. 250. Contra, Parker v. Monteith, 7 Ore

§ 477.

ACTION BY THE PARTY SEDUCED.

57

tiff's part, in affording opportunities of criminal intercourse between his daughter and the defendant, may be admitted in mitigation of damages, (*) but not of a seeming insensibility on the part of the father to his daughter's disgrace. (*) Nor is it competent for the defendant to show that the daughter consented willingly to the seduction, nor even that she, in fact, seduced the defendant, her consent not depriving the plaintiff of his right of action.(*) But the unchastity of the daughter previous to the defendant's act will mitigate the damages, and may reduce them to mere compensation for loss of service and expense of lying in. (4) Nor can an offer to marry in.(a) the female be given in evidence to mitigate the damages. (*) But actual marriage may be.(') In an action for the seduction of the plaintiff's daughter, the defendant can show that the plaintiff was not, in fact, married to his reputed wife, as it shows that the plaintiff was not entitled to the services of his daughter. (8) A recovery by the daughter for the seduction where such an action can be maintained, does not mitigate the damages recoverable by the father.(")

$477. Action by the party seduced. Where the woman is allowed (by statute) to recover in her own name for seduction, the measure of her recovery is subject to the same rules. Thus a woman may recover for wounded. feelings and dishonor, (*) for loss of social standing, (') and

(*) Zerfing v. Mourer, 2 Greene (Ia.) 520.

() Bolton v. Miller, 6 Ind. 262.

() McAulay v. Birkhead, 13 Ired. 28.

(d) Akerley v. Haines, 2 Cai. 292; Hogan v. Cregan, 6 Robt. 138.
(*) White v. Murtland, 71 Ill. 250; Ingersoll v. Jones, 5 Barb. 661.

(Eichar v. Kistler, 14 Pa. 282.

(*) Howland v. Howland, 114 Mass. 517.

(4) Pruitt v. Cox, 21 Ind. 15.

Simons v. Busby, 119 Ind. 13.

(1) Hawn v. Banghart, 76 Ia. 683.