White v. Murtland

Mr. Justice McAllister delivered the opinion of the Court: We are of opinion that the application made by plaintiff in error, at the August term, 1872, for a change of venue, Avas properly overruled. The suit Avas commenced on the 2d day of February, 1872, by capias returnable to the March term, same year. In determining Avhether this court will reverse for even an apparent error, it is competent for the court to look into the Avhole record. The record conclusively shows that the reason Avhy defendant below did not know the suit Avas commenced, in time to have made the application at the March term, Avhen it could have been made, was, that, immediately upon the development of his criminal relations with the girl, in May, 1871, he absconded from the State, to avoid legal process. We can not shut our eyes to this fact, and the law will not permit him to take advantage of his own wrong. Not having made the application at that term, he was required to bring himself within the statute as respects a party making the application after the term at which it might have been made, by showing that the causes for which the change of venue is asked, have arisen or come to his knowledge subsequent to the term at which the application might have been made. Instead of squarely meeting this requirement, his petition stated that “he did not know that prejudice existed against him among the inhabitants of said county, to the extent it does, until after the 25th day of July, 1872.” This statement implies that he previously knew that the inhabitants of the county were prejudiced against him, but omits to state when the prejudice arose, or first came to his knowledge. The first publication of the notice was on the 17th of May ; the last on the 7th of June. This was constructive service, at least when the 60 days expired. So that, if the August term, which began on the 5th of the month, be regarded as the first term at which the application, in contemplation of law, could have been made, having knowledge of the prejudice on the 25th of July, he should have applied to the judge at chambers, so as to save trouble and expense on the part of the plaintiff in preparing for trial. Moss et al. v. Johnson, 22 Ill. 633; Kelly v. Downs, 29 ib. 74. The second point made is, that the court erred in sustaining the plaintiff’s demurrer to defendant’s special pleas. We are of opinion that the demurrer was properly sustained, as tile same matters were put in issue by the plea of not guilty. 2 Greenlf. on Ev. sec. 571. “The plea of not guilty puts in issue both the fact of seduction and the fact that the person seduced was the servant of the plaintiff.” Addison on Torts, 911, citing Hollaway v. Abel, 7 C. & P. 528; Torrence v. Gibbins, 5 Q. B. 297. The pleas amounted to the general issue, and for that reason were bad. The third point questions the action of the court in certifying to the number of witnesses. That is discretionary, and we can not say the power was abused. Even if it were, it would constitute no ground for reversing the judgment for damages. The fourth error assigned is, that the court admitted, against defendant’s objections, improper evidence. Under this head, counsel make three specifications: 1. Evidence tending to show plaintiff’s pecuniary circumstances. 2. Evidence tending to show defendant’s pecuniary circumstances. 3. Evidence tending to show that, when the girl was some five months advanced in pregnancy, confessedly the result of defendant’s criminal intercourse with her, he caused an abortion to be produced. As to the first two specifications, an answer may be found in the decisions of this court, for it is the settled law of the court that, in actions by the father for debauching his infant daughter, and getting her with child, for assault and battery, and slander, it is competent to show the pecuniary circumstances and position in society of both plaintiff and defendant. Grable v. Margrave, 3 Scam. R. 372; McNamara v. King, 2 Gilm. 432; Cochran v. Ammon et ux. 16 Ill. 316; Hosley v. Brooks, 20 Ill. 115. , The court, at the instance of defendant’s counsel, instructed the jury that, in assessing plaintiff’s damages, the jury should take into consideration defendant’s pecuniary circumstances, and his means of paying such judgment as might be rendered against him. While the first branch of this instruction is a clear recognition of the rule upon which the evidence of pecuniary "circumstances is admissible, the last branch went farther, in favor of defendant, than the law would justify. The principle upon which the evidence is regarded as competent, is not to ascertain what amount of damages could be-collected, but with the view of ascertaining the extent of plaintiff’s injury, and, perhaps, fixing a standard of exemplary damages. We would here observe, that the practice has grown up, though not generally customary, of raising a sort of collateral issue upon the question of pecuniary circumstances, involving detail as to list, kinds and value of property. This is not within the purpose or scope of its admissibility. The inquiry, in the first instance, should be general, whether the party be in poor, moderate or good circumstances. If good, how good? leaving special inquiries to be made upon cross-examination. In this case the plaintiff, in the first instance, gave a catalogue of his possessions, also the number of his children, seemingly more with the view of exciting sympathy in his behalf, than showing the real extent of the injury. It is enough for him to show, in a general way, whether or not he wras in poor or in moderate circumstances, and if the defendant, on cross-examination, choose to enter upon details, that is his right, and the consequences may be his, also. The third specification involves the right of plaintiff, under his declaration, to give evidence tending to show the abortion. His counsel insist that it w7as too remote, and had no necessary connection wdth the real gravamen of the action, even if defendant caused its production. It was, they say, a separate and distinct wrong. This particular wrong is specifically charged in the declaration. The plaintiff had his election to bring his action in trespass or case. He brought it in the latter form. If he had brought trespass, we perceive no reason why he could not have added a separate count for the abortion, because, upon the plainest principles of the common law, if somebody else had gotten the girl with child, and the defendant had caused the abortion, whereby she became sick, and plaintiff lost her services, the action would lie, because, as to plaintiff, she could not consent to that, any more than to the carnal intercourse. Chitty, speaking of the action of trespass, says: 1-So, it lies for an injury to the relative rights, occasioned by force, as for menacing tenants, servants, etc., beating and wounding, and imprisoning a wife or servant, whereby the landlord, master or servant has sustained a loss, though the injury, the loss of service, etc., were consequential, and not immediate. It lies for criminal conversation, seducing awav a wife or servant, or for debauching the latter, force being implied, and the wife or servant being considered as hating no power to consent; and a count for beating the plaintiff’s servant, per quod servitium amisit, may be joined with other counts in trespass, and though it has been usual to declare in case for debauching a daughter, it is now considered to be preferable to declare in trespass.” 1 Chit. Pl. 168. If plaintiff had declared in trespass, and, after alleging the assault, carnal intercourse and getting her with child, had then alleged, in the same count, the causing the abortion at a subsequent time, without averments connecting this with the original trespass, the count might have been demurrable for duplicity; but if defendant, without demurring, took issue upon it, he could not exclude evidence of that trespass. In actions on the case, much broader scope is allowable, and the count is not subject to the same technical rules as to singleness, as in trespass. We have seen that, as to the carnal intercourse, the consent of the daughter is of no avail, so far as the father is concerned, because, as in the case of the wife, she is incapable of consenting. For the same reason, Avithout regard to the criminal Iuav, she is incapable of consenting to an abortion. The act of the defendant in causing it, Avould, therefore, be illegal, and, as to the father, amount to a trespass, Avhich, if folloAved by sickness and loss of service, Avould be actionable. Noav, in legal contemplation, is there no connection between the original wrong of debauching and getting her Avith child, and the act of getting rid of the child, in order to conceal and avoid detection of such original wrong? According to the common law, the mere act of carnal intercourse Avith the daughter does not give the right of action in the father. There must concur the pregnancy, the sickness incident thereto, and, theoretically,, the consequent loss of service, but, in reality, the loss of the comfort and society of the daughter, and of the honor of the father and his family; so that the debauchery, the pregnancy, the sickness consequent thereupon, involving the disability and disgrace of the daughter, are all constituents of the cause of action. Can it, therefore, be successfully maintained that this defendant, having thus unlawfully violated the rights of the father, but who, in order to conceal and escape the consequences of that wrong, has led, or caused that daughter to be led, into the commission of this great self-abuse, seriously injurious to her, both morally and physically, and thereby precipitated and aggravated that sickness, which, in the ordinary course of nature, would follow the original wrongful act, may be permitted to say, in this action, that this second unlawful interference is so disconnected from the original wrong that it forms no part of it? The substance of it is, that, for the defendant's own protection from the consequences of his original wrong, he subjects this daughter to another, which carries the corruption of her morals to an extreme degree, imperils her health and life, and exposes her to a deeper disgrace; and yet it is insisted that the fact can not be given in evidence as an aggravating circumstance, because it is wholly disconnected from the cause of action. We can not concur in that view. The res gestee here includes the debauching plaintiff’s daughter, the consequent pregnancy, the forcible birth, and consequent sickness and loss of service. All are ingredients of causes of action, though all are. not indispensable ingredients. In Klopfer v. Bromme, 26 Wisconsin R. 372, it was held that evidence of an abortion produced by the defendant is not inadmissible on the ground that the damages it tends to prove are too remote. The fifth error assigned is, in sustaining the plaintiff’s objection to defendant’s question to witness White: “If he had observed and was acquainted with the disposition of Margaret Ann Murtland, while she lived at Mrs. White’s, and, if so, to state whether or not she was a pert, forward girl?” There is one obvious objection to this question, even conceding that it called for particular acts of immorality or indecorum, and that is, that it did not confine the inquiry to anything occurring previously to defendant’s 'misconduct. Her general character for chastity must be considered as involved in the issue, and testimony of others than herself might be introduced, to show their own criminal intercourse with her, and the time and place; but, notwithstanding this evidence, if the jury are satisfied, from the whole evidence, that the defendant is the father of the child, their verdict must be for the plaintiff, though, perhaps, for diminished damages. 2 Greenlf. on Ev. sec. 577. But evidence of particular acts of immorality or indecorum, as well as proof of general bad character, must be confined to what occurred previously to the defendant’s misconduct. Ib. note 1; Taylor on Ev. 327; Elsam v. Fawcett, 2 Esp. 562. But the question was improper on another ground. It called for no acts, but the mere opinion of the witness as to her disposition. She might have been both pert and forward without being lewd. The sixth assignment of errors questions the correctness of the instructions given on behalf of plaintiff below. The first instruction told the jury, in substance, that, if defendant seduced and had sexual intercourse with plaintiff's daughter, Margaret Ann Murtland, and the latter was at the time a minor, under 18 years of age; that if pregnancy ensued such intercourse, and, in consequence thereof, the daughter became sick and unable to perform service, and that, by reason thereof, her services became in any degree lost to plaintiff; that he in no manner consented to such seduction and intercourse, then the plaintiff is entitled to recover, and they should find a verdict in his favor, “ provided the jury further find, from the evidence, that plaintiff had not, by contract with Mrs. White, parted with his right to the services of his daughter, at the time the injury was inflicted.” It is an undisputed fact in the case, that, at the time of the alleged seduction, and when the abortion was produced, the daughter, though a minor, was in the actual service of Mrs. White, defendant’s mother. She was at least the de facto servant of Mrs. White. While there is some seeming conflict in the English authorities, the general rule requires that the daughter, at the time of the seduction, must be in the actual service of, or at least living with, her father. That rule, so far as it requires actual service, or actual residence with the father at the time, has been relaxed by American courts, and the general rulé here is, that it is only necessary to show that the parent has the legal right, at the time, to command the services of the child, and very slight evidence of loss will suffice. Sedg. on Dam, (6th Ed.) 681—2, and cases cited in notes. Such is the doctrine of Anderson v. Ryan, 3 Gilm. 583, so far as the question was involved. See, also, the recent case of Kennedy v. Shea, 110 Mass. R. 147, and cases there cited; Mulvehall v. Millard, 11 N. Y. (1 Kern.) 343. In Ball v. Bruce, 21 Ill. 161, the court say: “If the minor be legally under the control of, and may be required to perform the services for, the plaintiff, that gives the right to maintain the action.” It was also held in that case that the plaintiff might recover where the person seduced did not reside with him at the time of the seduction, if the defendant had, by fraud and deceit, obtained possession of her as a servant, with the intent to seduce her, and he, in fact, did seduce her. The possession was obtained under a contract with her master, who previously had a right to her service. The principle underlying that proposition is the same as that above stated. By the fraud, the contract was voidable, if not actually void, and, whether the one or the other, the plaintiff had a legal right, at any time after it was made, to avoid it, and command the services of his servant. This same doctrine is recognized by the English courts, and is more consistent with the American rule, that it is only necessary that the father should be in a position, under all the circumstances, to exercise legal control of the child’s services, than with the rule requiring actual residence with the father at the time. See Addison on Torts (4th Ed.) 909; Speight v. Oliviera, 2 Stark. R. 495. It was competent for the plaintiff to contract with Mrs. White that Margaret, being a minor, should reside with, and be employed by, Mrs. White for a day, a month or any longer term, so that the time did not extend beyond the period of the child’s emancipation from the father, which might take place as well on the father’s death as on the daughter’s arriving at the age of 18 years. Ford v. McVay, 55 Ill. 119. If the contract of plaintiff with Mrs. White was valid, and the legal effect of it was, to divest the former of all lawful control over the services of his daughter, then, by the settled principles of the common law, as we understand it, the plaintiff could not maintain this action; but if the contract was such that plaintiff had the legal right, at any time, to control or command her services, then, notwithstanding she did not actually reside in his family, and he had not exercised the right of control, he may maintain it, so far as this issue is concerned. The contract, as testified to by plaintiff, presents two aspects: one, whether, it not being in writing, it was, by its terms, not to be performed within a year, and, therefore, Avithin the Statute of Frauds; the other, Avhether he, in fact, reserved the right to terminate the arrangement at his own pleasure. If it Avas Avithin the Statute of Frauds, it was not available as a contract, and plaintiff avouId have the legal right to treat it as not existing, and control the services of his child at any time he chose to do so. Upon this question, some nice distinctions are made by the authorities. In Hill v. Hooper, 1 Gray (Mass.) 131, where the plaintiff agreed with the defendant that his son, then a minor between 15 and 16 years of age, should work for them in their business till he was 21 years of age, the defendant paying for his services a certain sum semi-annually to the father, it was held that this agreement was within the Statute of Frauds, on the ground that the defendant contracted for the benefit of the whole five years’ service, and the death of the son in the interim would only defeat the performance. But in Peters v. Inhabitants of Westborough, 19 Pick. 365, which was assumpsit for expenses incurred in the support of a pauper of the defendant town, parol evidence was offered to show that plaintiff had taken the pauper into his family, in pursuance of an agreement between the father and the plaintiff, that the latter should support her till she was 18 years of age (she being then 11), in consideration of her services. It was held that the agreement was not within the Statute of Frauds. Here, there was no letting of the infant’s time, but a mere substitution of the plaintiff for the child’s father, as to the duty of supporting her, during her lifetime, until she was 18. The contract might have been performed within a year, because the child might have died within that time. To the same effect is Wiggins v. Keizer, 6 Ind. R. 252; Browne on Frauds, sec. 276. If the contract was of this latter character, then, so far as the plaintiff’s legal right to control the services of the girl is concerned, the agreement being valid, it would bar his control, and, consequently, his right of action; but the agreement being verbal, what it was, would be a question of fact for the jury; the legal effect of it, would be one of law for the court. The proviso to the instruction under consideration, submitted the questions both of law and fact to the determination of the jury, upon the most difficult point in the case. So, as to the other aspect of the agreement. If the jury should find that the character of the agreement was one for support, in consideration of the child’s services, and, therefore, not within the Statute of Frauds,"yet if they should further find, from the evidence, that it was to continue only during the pleasure of plaintiff and Mrs. White, or that he expressly reserved the right to terminate it whenever he chose to do so, then, in that view, he would be considered as having the legal right to control or command the services of the child, and, the other elements of the cause of action being found in his favor, he would be entitled to maintain the action, whether he had exercised such right of control before defendant’s misconduct or not. Plaintiff’s third instruction is palpably erroneous. It assumed, without proof, that plaintiff liad made disbursements for medical treatment. It told the jury that, if they found for the plaintiff, they could take into consideration the pecuniary circumstances of the plaintiff and defendant, *• and, besides the loss of services and the disbursements for medical treatment, they can give such additional damages,” etc. The question, whether he had been subjected to disbursements for medical treatment, is not submitted to the jury, to be found as a fact, in any of plaintiff’s instructions. Upon the principle that plaintiff’s daughter was incapable of consenting, the fact that she yielded without force or seduction, would not constitute a bar to the action. Still, it seems to be settled, and properly so, that, if a seduction be not proved, damages for seduction should not be given. Sedg. on Dam. p. 682, and notes. Evidence was given tending to show that the first act of intercourse was accomplished by means of force. There is, however, no testimony on that point but her own, and her subsequent conduct is hardly consistent with her story, if she was really a virtuous girl, and her virtue overcome by force; but if the jury should be satisfied, upon another, trial, after considering all the circumstances, that her statement is true, then the defendant’s conduct would merit at least as high a measure of damages as if there had been seduction, and the action could be maintained as if there had been seduction. See Kennedy v. Shea, supra. It has been urged that an offer of marriage, made through defendant’s attorney on his behalf, after suit brought, should have been considered in mitigation of damages, and that the court erred in instructing the jury that it could not. If such a rule should be recognized in this case, it would be applicable to every other. There seems to us to be no sound principle upon which such a doctrine can rest. We will not stop to suppose cases of a class frequently occurring, but any one may conceive of them, where, from the character of the defendant, the fraud, deception and hypocrisy used in accomplishing the seduction, such an offer would be but adding insult to injury. The authorities, so far as there are any upon the question, are against its admissibility. Sedg. on Dam. 683; Ingersoll v. Jones, 5 Barb. S. C. R. 661. We perceive no error in refusing instructions asked for defendant, but, inasmuch as the damages awarded are very large, if not excessive, we feel constrained to reverse the judgment, for the errors pointed out, believing that it ought to go before another jury. Judgment reversed.