Sargent v.

Sutherland, J. This is an application for a new trial on the following grounds : 1. That the action cannot be sustained by the mother, (the present plaintiff) at all, because the daughter, at the time when the alleged injury was committed, was an indented apprentice, and in the actual service of her master ; and the subsequent cancelling of the indentures could not transfer the right of action, which previously belonged to the master, to the mother. 2. That the verdict is against the weight of evidence; and 3. That the damages are excessive. A new trial is also moved for on the ground of newly dis covered evidence, which will be subsequently considered. Whether the declaration discloses a good cause of action in favor of the present plaintiff or not, is a question which cannot arise upon this motion. If it does not disclose a good cause of action, it is apparent upon the record, and must be taken advantage of by motion in arrest of judgment. This ground of objection is founded upon the alleged error of the Judge who tried the cause, in refusing to nonsuit the plain tiff. But the Judge at the trial was only authorized to try — 115 — the issues of fact between the parties ; and was not to decide upon the pleadings, or whether the facts set forth in the declaration, if true, would, or would not entitle the plaintiff to judgment on the coming in of the postea. (Ward v. Center, 3 John. 271. Smith v. Elder, 3 John. 113. Van Vechten v. Graves, 4 John. 406. Meyer v. M’Lean, 1 John. 509.) But it may be desirable to the parties, to have the opinion of the Court expressed upon the point, whether the present plaintiff can sustain this action ; as that question will undoubtedly arise, and be regularly brought before the Court, in the event of a new trial being granted, upon any of the grounds on which it is now asked. In Martin v. Payne, (9 John. 387,) the daughter, at the c-ime of her seduction, resided in the family of her uncle, with the consent of her father, and worked for her uncle when she pleased, for which he agreed to pay her; but there was no agreement for her continuance with him, for any definite time. Previous to her seduction, she had no expectation of returning to her father’s house to reside; yet, being under age, and having returned immediately after her seduction, and he having supported her and borne all the expenses incident to her confinement, it was held that he was entitled to an action on the case against her seducer, for debauching her, per quod servitium amisit. Spencer, J. in delivering the opinion of the Court, says, “ in the present case, the father had made no contract for hiring out Ins daughter, and the relation of master and servant did exist, from the legal control he had over her services; and although she had no intention of returning, that did not terminate the relation, because her volition could not affect his right.” And he remarks that the case of Dean v. Peel, (5 East, 49,) is the only one in which the right of the father, to maintain an action for debauching his daughter, whilst under age, has ever been denied; and that he considered it a departure from all former decisions upon the subject. Where the daughter is over twenty-one years of age, and in the service of another, the action is not maintainable. (3 Burr. 1878.) She must, when of age, be in her father’s — 116 — service, so as to constitute in law and in fact the relation of master and servant, in order to entitle the father to maintain an action for debauching her. (Nicholson v. Stryker 19 John. 117.) It must be conceded, that if the indentures of apprentice ship had not been cancelled, or voluntarily rescinded by the parties, the mother could not have maintained this suit. It is not founded upon the relation of parent and child, but of master and servant; and where the latter relation does not exist, either in fact or in judgment of law, no loss of service can be alleged or proved, without which an action on the case for seduction cannot be sustained. The apprentice, by suffering herself to be debauched, and thereby rendered incapable of performing her part of the indentures, virtually abrogated them, by putting it in the power of the master to have them dissolved and discharged at his pleasure. It is expressly provided, by the 11th section of the act concerning apprentices and servants, (1 E. L. 139,) that it shall be lawful for three justices, <fcc. upon application or complaint made upon oath, by any master or mistress, against any apprentice or servant, touching or concerning any misdemeanor, miscarriage or ill behavior, &c. to heai; examine and determine the same: and to punish the offender by commitment, &c. or otherwise, by discharging such apprentice or servant, by warrant or certificate under their hands and seals, &c. That the offence in this case is one for which the apprentice or servant would have been discharged, there can be no doubt. And it is equally clear, that the parties had a right voluntarily to abandon a contract, which would have been cancelled upon application to the competent authorities. I consider the indentures therefore, as legally cancelled from the 18th of August, 1821 when, by the mutual consent of the parties, they were given up. She then returned to the house of her mother, and from that period, at least, the relation of mistress and servant was restored between them. • In an action of trespass on the case, for an injury like this, the real cause of action is the expenditure of money, and the loss of service consequent upon the seduction. Hence the — 117 — action cannot be sustained for seduction, unless it is followed by pregnancy, or the loss of health, and consequently of service. (3 Bl. Com. 142, note (13.) The per quod is the gist of the action. But trespass may be maintained, where the defendant illegally enters the father’s house; and debauching his daughter may be stated and proved as an aggravation of the trespass, although it may not have been followed by the. consequences of pregnancy. Where the action is trespass, whether it be followed by pregnancy or not, the illegal entry is considered the gist of the action, and the loss of service, &c. merely as consequential. If the trespass, therefore, be not proved, the plaintiff cannot, in such case, recover. (2 Ld. Raym. 1032. Bennett v. Allcotty 2 T. R. 168, per Buller, J. 3 Bl. Com. 143, note (13.) (a) It would seem, according to these principles, not to be material who was entitled to the services of the female, at the time of the seduction, when the action is case. But the real inquiry is, upon whom has the consequential injury fallen; the expense attending her confinement, and the loss of her services ? Suppose a daughter hired out by her parent for a month, or six months, and debauched during her service; but the fact not known, nor the consequences of it apparent, until after the expiration of. her term of service, and her return to her father’s house: is there no remedy in such a case ? If there is, it must belong to the parent. For if the circumstances of the case would support trespass in the name of the master, the recovery would be nominal merely, as he could not aver or prove the consequential injury by way of aggravation. Or suppose the case put by counsel upon the argument, that an indented, or hired servant, is debauched by her master; has the parent no redress ? The supposition is not to be endured. It cannot, therefore, be necessary, according to the theory, or just principles by which this action is regulated, that the parent, in order to sustain it, should be entitled to the services of the daughter, at the very instant when the act is committed, which subsequently results in a loss of service, or necessary pe — 118 — cuniary disbursements. The latter circumstances constitute the real gravamen; and if that fall upon the parent, it entitles him to the legal redress. In Browne v. Gibbons, (1 Salk. 206,) it is said, if a man bring trespass for beating his servant, per quod servitium amisit, it is not an action of assault and battery, within the statute, of 22 and 23 Car. 2, but is an action founded on the special damage. So in slander, where the words are not actionable in themselves, and special damage is alleged, that is considered the cause of action for some purposes. (Cro. Car. 141,163, 307.) The very act of prostitution may be considered an abrogation of the contract or indentures of service, at the election of the master; and when he makes his election, as taking effect by relation, from the time when the act was committed. I am, therefore, very clearly of opinion, that the parent, in this case, can sustain the action. There is no ground for interfering with the verdict as being against the weight of evidence, upon the fact of seduction. It was positively and circumstantially sworn to by the daughter; and although, as to some of the particulars, she was contradicted by Miss Edson, and her veracity may be considered as impeached by other witnesses, still the jury believed her; and it was their peculiar province to decide upon the credibility of conflicting witnesses. Under such circumstances, particularly in actions of this nature, the Court never disturb the finding of a jury. (3 John. 182, 282. 8 John. 370. 15 John. 496.) Nor do I think we are authorized to interfere on the ground of the excessiveness of the damages, although they appear to us much larger than they should have been. There were no aggravating circumstances in the case; no arts of seduction were used, for none were necessary. The character of the daughter had long been considered loose and abandoned. There were no wounded feelings, or blasted reputation to aggravate the moral impropriety of the defendant’s conduct, and to call for exemplary damages. We should, have been better satisfied with a verdict, barely suf — 119 — ficient to remunerate tli e plaintiff for her actual loss. But the damages are not so flagrantly outrageous and extravagant, as necessarily to evince intemperance, passion, partiality or corruption on the part of the jury; and where that is not the case, the Court will not undertake to set their judgment on a question of damages, in an action of this nature, in opposition to the judgment of the jury. It is the judgment of the jury, and not of the Court, which is to determine the damages in actions for personal injuries. (Coleman v. Southwick, 9 John. 51. M’Connell v. Hampton, 12 John. 235, 6. 10 John. 446.) In Duberly v. Gunning, (4 T. R. 651,) which was an action for criminal conversation, the evidence showed that the husband had been guilty of gross negligence and inattention to the conduct of his wife, with respect to the defendant. That he had suffered many indecent familiarities between them in his presence, while he was engaged in similar conduct with another woman; and Ld. Kenyon charged the jury, that these circumstances, if they did not entirely take away the ground of action, went very far in mitigation of damages. The jury, notwithstanding the charge, found a verdict for the plaintiff for £5000. Upon a motion for a new trial, on the ground of the excessiveness of the damages, Ld. Kenyon admitted that the damages were much larger than they ought to have been, and that he should have been satisfied with nominal damages; but he observed he had known instances of much greater damages given in that kind of cases, which were never got rid of by granting new trials; that he had never known an instance in which a new trial had been granted, in such a case, upon the ground of excessive damages ; and although he felt great difficulties on the one side as well as the other, he had not courage enough to make the first precedent of granting a new trial under such circumstances. Mr. Justice Buffer was of opinion, in that case, drat the defendant was entitled to a verdict; that the conduct of the husband was such as to authorize the conclusion of his consent to the prostitution of his wife. He was for gran ting a new trial; yet the other Judges agreed with Lord — 120 — Kenyon, that even in such a case, they were not authorized to set aside the verdect. The present action is of the same nature and character, as an action for criminal conversation, which Spencer, J. in McConnell v. Hampton, (12 John. 237,) considered as exempted by peculiar considerations from the interference of the Court on the ground of excessive damages. I have found no case in which a verdict, in such an action, has been set aside on such grounds. I am very far from saying that the Court would, in no case, interfere in such an action, on account of the enormity of the damages ; but the case must be of a very peculiar and extraordinary character, to justify their interference. (Hewlet v. Cruchley, 5 Taunt.. 277. Irwin v. Dearman, 11 East, 22 2 Archb. Pr. 222, and cases there cited. Hutcheson v. Peck, 5 John. 207, per Van Ness, J.) The verdict in this case is by no means as excessive and enormous, as in the case of Duberly v. Gunning. Upon the case, therefore, I think the motion for a new trial must he denied. But upon the ground of mistake in the jury, as to the principles upon which their verdict was made up, and also of the newly discovered evidence, I am inclined to think a new trial should be granted. Two of the jurors swear, that the jury, their fellows, as Avell as themselves, came immediately to the conclusion that the plaintiff was entitled to nothing but her actual expenses, and the loss of her daughter’s service during her confinement ; and that it was clearly proved, that she had been very profligate and corrupt before the defendant knew her; that they estimated the actual expense at $20, and gave the $900 to pay the expense of maintaining, supporting and bringing up the child, till it was of sufficient age to maintain itself; and, in that Avay, the jury gave a verdict for the plaintiff, for $920 ; that the jurors supposed it was proper to give enough to bring up and educate the child, as the plaintiff’s counsel, in addressing the jury, expressly claimed a right to recover on that, principle, which Avas not denied by the Judge in his charge; nor did he notice or comment on it at all. — 121 — The plaintiff has produced no affidavit from any of the other jurors, denying this statement. It then stands admitted not that one or two jurors estimated the damages on that principle ; but that it was an error common to all the jury, resulting from what they considered the implied assent of the Judge, to the correctness of the rule of damages as claimed by the counsel for the plaintiff. This is, in effect, equivalent to a misdirection of the Judge. It is clearly the duty of the Court to interfere in such cases, if the facts come properly before them. The plaintiff is under no legal obligation to support and educate the child; nor can she be compelled to appropriate the proceeds of this verdict to that purpose; nor will it afford the defendant any exemption from his liability to provide for the child, when called upon in the regular and due course of law. I must confess that, upon the argument, I was strongly inclined to think the affidavits of the jurors were inadmissible ; but, upon looking into the cases, I have come to a different conclusion; In Dana v. Tucker, (4 John. 488,) the court say, the better opinion is, that the affidavits of jurors are not to be received to impeach a verdict; but that they may be admitted in exculpation of the jurors, and in support of their verdict. The affidavit disclosed that the jurors settled the amount of the verdict by each marking down such sum as he thought ought to be allowed, and dividing the aggregate amount by twelve. This case overrules that of Smith v. Cheetham, (3 Caines, 57,) in which similar affidavits were held admissible by Spencer and Livingston, Justices. Ch. J. Kent dissenting. The decision in Dana v. Tucker is undoubtedly in accordance with the latest authorities in England^ (Owen v. Warburton, 4 B. & P. 329. Tidd. Prac. 817, and the cases there cited. 1 T.R. 11.) The English courts have also refused to receive the affidavits of jurors to explain the grounds of their verdict, and show that they intended something different from what they found. (5 Burr. 2657. 2 Bl. Rep. 803. 2 T. R. 281. 1 Burr. 383. Tidd. Prac. 817, contra.) I think the affidavits may be received here, without impeaching the principle of either class of those cases. — 122 — They are not introduced to show any impropriety m the conduct of the jurors, or that the verdict is not such as they intended ; but to show a misconception of the rule of damages, as derived from the charge of the Judge, taken in connection with the argument of counsel. It was natural foi the jury to infer from the silence of the Judge upon this point, (which was the most important, and indeed the only point of any difficulty in the case,) his assent to the correctness of the rule of damages, as laid down by the counsel. They acted upon that supposition. Their error was one into which they were led by the Court. It was. in the nature of a misdirection. The fact that they were so misled, can be derived from no other source than the jurors themselves. If the judge-had expressed the opinion which the jurors understood him to entertain, the verdict would have been set aside for a misdirection. I repeat, that the affidavits impute no impropriety of conduct to the jurors, nor do they contradict the verdict as recorded. In such a case I find no authority against receiving them; and I am inclined to the opinion, though not without some hesitation, that, un der the circumstances of this case, they may be safely ad mitted; and that the defendant, on that ground, is entitled to a new trial, as also on the ground of the newly discovered evidence. The defendant was guilty of no laches in not being prepared to prove on the trial, that he was not in the town of Butternuts on the day when the witness swore she became pregnant by him. Upon the supposition that he never had connection with the witness, and that her whole story is a fabrication; still, knowing that he was in the neighborhood about the time when, according to the birth of the child, i/t must have been begotten, he could not have anticipated that she would allege the connection to have taken place at a period subsequent to his leaving the neighborhood; and consequently was not, in the exercise of ordinary diligence and discretion, bound to be prepared to show when he did leave it. Nor is the effect of the testimony merely to impeach the witness. It establishes a fact which, (if the witness is to be understood as swearing that her pregnancy took place on Wednesday, the 13th of June,) shows conclusively that the — 123 — defendant could not have been the father of the child. It does not contradict her in an incidental circumstance, the only effect of which is to diminish the credit to which she is entitled when she speaks to the main fact in the cause, without having any direct bearing on that fact, as in Shumway v. Fowler, (4 John. 425,) and Duryee v. Dennison, (5 John. 249 ) and the cases there cited : but it disproves, or has a direct tendency to disprove, the existence of the main fact itself. It is, in truth, proof of an alibi, which I apprehend has never been considered as merely impeaching a witness. I am, therefore, on these grounds, for granting a new trial. New trial granted. Footnotes [(a)] And vid. ante, 4 Cowen’s Rep. 414.