Fox v. Stevens

McMillan, J. By the Court The first point urged by the appellant as a ground for a new trial is, that the verdict is not justified by the -evidence, which shows affirmatively that there was no seduction. The specific objection to the verdict is, that the evidence shows a want of consent upon the part of plaintiff’s daughter to the illicit intercourse of the defendant, and establishes, if anything, a rape. We think the objection is not wTell taken. While the cross-examination of the plaintiff’s daughter shows that she wa's not altogether passive when the defendant first laid his hands on her, there is no intimation in the examination in chief of resistance on her part, and the whole testimony in the case shows her consent to the illicit intercourse of the defendant. The testimony of the witness Catharine Fox as to promises to her made by the defendant during his guilty visits was clearly competent. Evidence of propositions made by defendant to this witness during, the same visits to procure an abortion, we think were properly received. It has been held that evidence of this nature was admissible in a case of this kind in aggravation of damages. (Hunt vs. Prince, 21 Wend. [277] 19); and testimony of this character seems to have been received without objection in Dain vs. Wycoff, 7 N. Y., 191. The objection to the testimony in the case at bar was its irrelevancy. "We think the evidence was admissible, at least as tending to establish the seduction. Evidence of the request of’the defendant to the witness to marry his son, in the form stated by her, is similar in its nature to that just considered. . The question put to the plaintiff whether the defendant was influential in procuring him the position of Chairman of the Town Board, and the statement of the defendant about his son marrying the plaintiff’s daughter, were competent to show the relations and confidence existing between the parties, particularly as affecting the question of the plaintiff’s negligence with respect to his daughter, which is made the third ground of the defendant’s objection to the verdict. In cases of wilful wrongs it is settled by authority that exemplary damages may be given. Whatever my individual opinion may be, the rule must be .followed. We see no reason why this case does not come within the rule. There is no ground whatever for alleging any collusion between the plaintiff and defendant, or any passive sufferance or conniv'ance on the part of the plaintiff at any improper.'familiarity between, his daughter and the defendant, which would defeat a recovery by the plaintiff. Nor in view of all the evidence in the case do we think the testimony shows any such negligence on the part of the plaintiff, or any other circumstance which will justify us in saying that the damages were given under the influence of prejudice or other improper motive. The charge of the Court is strictly accurate. The judgment is affirmed.