Lawrence v. Spence

Boardman, J.: This is an action for seduction and consequent loss of services of plaintiff’s daughter. The defendant appeals from the recovery had and insists that the action cannot be maintained where the illicit connection^was had with force and not by the consent of the female. The authorities are hostile to this position and no reason exists why it should be established. A few of the cases relating to the subject are cited: Furman v. Applegate (3 Zabriskie [N. J.], 28); Kennedy v. Shea (110 Mass., 147)’; Chamberlain v. Hazelwood (5 Mee. & Wels., 515); Lavery v. Crooke (52 Wisc., 612); Reed v. Williams (5 Sneed [Tenn.], 580); Damon v. Moore (5 Lans., 454). From an examination of the cases cited, it is evident the rule is and long has been that sexual intercourse accomplished by force is as much the subject of an action as where it occurs by the consent of the female. Nor can a reason be suggested why such should not be the rule. The gist of the action is the loss of service and damage sustained by the parent. That; in a case like the present, is the same whether the result of force or consent. The case of Hogan v. Cregan (6 Robt., 138) is cited in hostility to the doctrine above expressed. But the point was not in that case [170] and what is said by the learned judge is obiter and doubtless not upon careful consideration. We cannot, therefore, consider it an authority upon the question now under review, even if not overruled by Damon v. Moore (ante). The charge of the court was quite too favorable to the defendant, yet the jury found against him. The damages cannot be deemed excessive. The judgment should be affirmed, with costs. Bockes, J.: I. agree for affirmance, although I did not hear argument. Learned, P. J.: If the question had been properly raised I should doubt very much whether, in a case where the defendant had committed a rape (as is the testimony here), the jury could take into account, on the question of damages, the plaintiff’s loss of comfort of the daughter “ in whose virtue he can feel no consolation, and his anxiety as the parent of other children whose morals may be corrupted by her example.” There is no bad example, there are no bad morals in the case of a woman upon whom, against her resistance, a rape has been committed. Such a woman has suffered a great wrong and is entitled to sympathy. But it is unjust to say that she could corrupt her father’s family by her example. No exception, however, is taken to the charge on this point. Judgment and order affirmed, with costs.