Rollins v. Chalmers

The opinion of the court was delivered by Ross, J. I. The judgment rendered- by the County Court against the defendant at the June Term, 1878, was equivalent, in legal effect, to a general verdict of guilty against him. It concluded him in regard to every fact alleged in the declaration which the plaintiff otherwise would have been bound to establish by testimony in order to entitle him to recover damages for the loss of the service of his daughter. Webb v. Webb, 16 Vt. 636; Hyde v. Moffat, 16 Vt. 271; Bradley v. Chamberlain, 31 Vt. 468; Sweet v. McDaniels, 39 Vt. 272; Chamberlin v. Murphy, 41 Vt. 110; Morey v. King, 49 Vt. 304. Among the facts so alleged were the seduction of the daughter by the defendant, and that she sustained the relation of servant to the plaintiff. These were the facts which lay at the foundation of the plaintiff’s right of recovery, and which were put in issue by the plea, not guilty. Hence, after this judgment, the defendant was not at liberty to introduce testimony to show that he was not guilty of the seduction and debauchment of the plaintiff’s daughter. Such testimony did not bear upon the amount of the damages recoverable by the plaintiff for such seduction, but upon the right of recovery, which had been conclusively determined in his favor by the preliminary judgment. The County Court, therefore, committed no error in rejecting the testimony of the defendant offered, to show that he was not guilty of the seduction. II. By allowing the testimony in regard to the financial condition of the plaintiff to be received without objection raised until after the testimony on both sides was closed, the defendant waived, or, at least, the County Court could, in its discretion, treat him as [596] having waived, the right to have such testimony withdrawn from the consideration of the jury. Laurent v. Vaughn, 30 Vt. 90; Porter v. Gile, 44 Vt. 520; Hartland v. Henry, 44 Vt. 593; Davenport v. Hubbard, 46 Vt. 200. If such unobjected testimony should be wholly foreign to the issue on trial, it would not usually operate to prejudice the party. The Supreme Court do not reverse a case for testimony erroneously received, unless it is of such a character that it may and probably has prejudiced the excepting party. If the testimony, though not legitimately admissible, have a moral tendency to support the issue, and so would be likely to influence the jury, to rule it out and withdraw it from the consideration of the jury, when the objection is not made until after the testimony is closed on both sides, would often work great injustice to the other party, who might have supplied its place with legitimate testimony, if it had been objected to when offered. Hence, the County Court is not legally bound to rule out, or withdraw from the consideration of the jury, testimony which a party has allowed to be received without objection. The County Court committed no error in failing to comply with the defendant’s request so far as it related to this subject. III. The defendant also excepted to that portion of the charge in which the jury were told that in estimating the loss of service or damages sustained, they might consider the shock which the seduction occasioned to the plaintiff’s feelings and sensibility, and the dishonor which it brought upon him, and especially excepted, inasmuch as such damages were not specially declared for. But such damages to a parent, or to one standing in loco parentis, are the natural result of the seduction, and need not be specially declared for, and have for a long time, if not always, been recoverable under a general allegation per quod servitium amisit, to the damage of the plaintiff. Irwin v. Dearman, 11 East, 22; Phillips v. Hoyle, 4 Gray, 568; 2 Greenl. Ev. s. 579. The last authority cited, expresses the doctrine as follows: “ The damages in this action are given, not only for the loss of service, but also for all that the plaintiff can feel from the nature of the injury. Therefore, if the plaintiff is the parent of the seduced, the jury may [597] consider his loss of the comfort as well as the service of his daughter, in whose virtue he can feel no consolation, and his anxiety as the parent of other children, whose morals maybe corrupted by her example.” There was therefore no error in the portion of the charge excepted to. Judgment affirmed.