Mere negligence on the parents' part, when not amounting to connivance, may be shown in mitigation of damages, but is not a bar. That the plaintiff allowed the defendant, a married man, to visit his daughter as a suitor, and placed her in exposed situations, does not debar him from maintaining an action for the seduction, unless he knew the defendant to be married. It is no defense that the defendant was an infant; or that he is liable to a criminal prosecution for the act;5 or that (in an action by a parent) there has been a recovery in a former suit by the daughter; or that the defendant subsequently married the girl (the action being brought by the parent); or that, after the seduction, the plaintiff married a person other than the defendant; or that she consented to the intercourse; or that the girl was unchaste; 10 or that the act was done without her consent, and was not seduction, but rape."

7

1119. Damages -Measure of. The damages are not restricted to the loss of service and the expense consequent thereon. Proof of the relation of master and servant, and of the loss of service by means of the wrongful act of the defendant, has relation only to the form of the remedy, and the action being sustained in point of form by the introduction of these technical elements,

but a just retribution in her misfortune and disgrace. The fault would be as much his own as her's or her seducer's; and his assurance in coming to court to ask for a reward for the perpetra tion of a wrong which was known to him, and which he might have prevented, would justify the belief that he had no objections to its commission." And a custom of "bundling," that is, for persons courting to sleep together, cannot be set up as a defense: Seagar v. Sligerland, 2 Caines, 219; Hollis v. Wells, 3 Pa. L. J. 169.

1 Graham v. Smith, 1 Edm. Sel. Cas. 267; Parker v. Elliott, 6 Munf. 587. Id.; Zerfing v. Mourer, 2 G.Greene,

2

520; Travis v. Barger, 24 Barb. 614.

3 Richardson v. Fouts, 11 Ind. 466. Lee v. Heffley, 21 Ind. 98.

5

Klopfer v. Broume, 26 Wis. 372; Eicher v. Kistler, 14 Pa. St. 282; 53 Am. Dec. 551.

6 Pruitt v. Cox, 21 Ind. 15.

Eicher v. Kistler, 14 Pa. St. 282; 53 Am. Dec. 551. But this fact is relevant in mitigation of damages: Id. Nor is a release from the daughter a bar: Sellars v. Kidner, 1 Head, 134; Gimbel v. Smidth, 7 Ind. 627.

8 Dowling v. Crapo, 65 Ind. 209.

McAulay v. Birkhead, 13 Ired. 28; 55 Am. Dec. 427.

10 Smith v. Milburn, 17 Iowa, 30; Harrison v. Price, 22 Ind. 165. 11 Ante, § 1110.

the damages may be given as a compensation to the plaintiff, not only for the loss of service, but also for all that the plaintiff can feel from the nature of the injury.1 This includes the disgrace cast upon the family, and the distress of mind of the parent at his daughter's fall, and these juries are accustomed to compensate with heavy damages. Either parent may recover vindictive or exemplary damages; but one not a parent or in loco parentis, but merely the master, can only recover for his actual loss of service. The mother cannot recover compensation for the support and maintenance of the daughter's illegitimate child. But the allowance by law to the daughter for the bastard's support does not affect the parent's damages; nor the fact that by statute the daughter is allowed to sue for the same seduction." The cost of medicine and medical attendance is recoverable, whether the father has paid for them or not; but no recovery can be had for the wounded feelings of his family, nor of exemplary damages, where the intercourse was caused as much by the misconduct of the daughter as of the man. The measure of damages is for the jury, whose discretion will be rarely interfered with."

§ 1120. Evidence-In General.

On the question of damages, evidence of the situation in life and circum

1 Phelin v. Kenderdine, 20 Pa. St. 354; Lipe v. Eisenlerd, 32 N. Y. 229, 236; Clark v. Fitch, 2 Wend. 459; 20 Am. Dec. 639; Stiles v. Tilford, 10 Wend. 338; Pruitt v. Cox, 21 Ind. 15; Felkner v. Scarlet, 29 Ind. 154; Phillips v. Hoyle, 4 Gray, 568; Grable v. Margrave, 4 Ill. 372; 38 Am. Dec. 88; White v. Murtland, 71 III. 250; 22 Am. Rep. 100; Kendrick v. McCrary, 11 Ga. 603; Ellington. Ellington, 47 Miss. 329; Fox v. Stevens, 13 Minn. 272; Stevenson v. Belknap, 6 Iowa, 97; 71 Am. Dec. 392.

2 Cases in last note; and see Stevenson v. Belknap, 6 Iowa, 97; 71 Am.

5

All

stances of the parties is relevant. So is evidence of the good character of both plaintiff's and defendant's families." The circumstances under which the girl was seduced, and the means used to seduce her, may be shown.3 Testimony relating directly to facts bearing on the relations of the persons whose conduct is in question is admissible as part of the res gestæ, as familiarities which may or may not have been innocent, and evidence is admissible of a connection between the girl and defendant beyond the period of three years from the commencement of the suit. defendant's intercourse with her is but one transaction, and, with all the circumstances of the case, should go to the jury, both to prove whether the defendant is father of the child, and to show the extent of the injury in aggravation of damages. The dying declarations of the woman who died in childbirth, that the defendant was the father of the child, are not admissible. The fact that a man ran away six weeks after he was accused of seducing a woman does not, in her action against him, constitute any evidence of his guilt.8

1121. Evidence in Aggravation.— Any facts not too remote may be shown in aggravation of damages; as the relationship between the plaintiff and the one seduced, the situation of the family, etc; " that defendant

Andrews v. Askey, 8 Car. & P. 9; McAulay v. Birkhead, 13 Ired. 28; 55 Am. Dec. 427; Grable v. Margrave, 4 Ill. 372; 38 Am. Dec. 88; Rea v. Tucker, 51 Ill. 110; 99 Am. Dec. 539; White . Murtland, 71 Ill. 260; 22 Am. Rep. 100; Wilson v. Shepler, 86 Ind. 275.

in good families, but which would not have been tolerated had he belonged to a family which was low or degraded."

271.

3 Bracy v. Kibbe, 31 Barb. 273. Threadgool v. Litogot, 22 Mich. 5 Watson v. Watson, 58 Mich. 507. 6 Thompson v. Clendening, 1 Head, 287.

7 Wooten v. Wilkins, 39 Ga. 223; 99 Am. Dec. 456.

Parker v. Monteith, 7 Or. 277, the court saying: "It was competent for the respondent to show that while it was his duty to be watchful over the morals of his daughter, he was 8 Hopkins v. Mathias, 66 Iowa, 333. nevertheless justified in permitting Hewit v. Prime, 21 Wend. 79; Fox that degree of social intimacy between v. Stevens, 13 Minn. 272; Thompson her and the appellant which is always v. Clendening, 1 Head, 287. allowable between the different sexes 10 Wilson v. Sproul, 3 Pa. St. 49.

visited her as a suitor, and used arts, flatteries, persuasions, and promises of marriage to induce her to have connection with him;' or that the defendant procured an abortion on the woman. The jury may, in assessing damages, take into consideration the plaintiff's feelings, pain, and humiliation in giving birth to the child, but not the care and cost of maintaining and educating it.3 But in an action by the parent, evidence of a promise of marriage by the defendant is not admissible; nor of what the plaintiff told the woman he was worth.5

§ 1122. Evidence in Mitigation. That others had criminal intercourse with the girl is admissible in mitigation of damages. So is evidence that the girl, prior to the seduction, was loose in language and conduct, and kept loose company, or of her general character for chastity; or that the parent was negligent; or that the defendant subsequently married the girl; 10 but not her subsequent character and acts." Where the father sues,

1 Stevenson v. Belknap, 6 Iowa, 97; 71 Am. Dec. 392; Russell v. Chambers, 31 Minn. 54.

2

Klopper v. Bromme, 26 Wis. 372; White v. Murtland, 71 Ill. 250; 22 Am. Rep. 100.

3 Wilds v. Bogan, 57 Ind. 453.

Gillet v. Mead, 7 Wend. 194; 22 Am. Dec. 578; Wells v. Padgett, 8 Barb. 327; Brownell v. McEwen, 5 Denio, 368; Clark v. Fitch, 2 Wend. 459; 20 Am. Dec. 639; Foster v. Scoffield, 1 Johns. 299; Whitney v. Elmer, 60 Barb. 250; Haynes v. Sinclair, 23 Vt. 108; Comer v. Taylor, 82 Mo. 341. Contra, White v. Campbell, 13 Gratt. 573; Phelin v. Kenderdine, 20 Pa. St. 354.

5 Watson v. Watson, 53 Mich. 168; 51 Am. Rep. 111.

White. Murtland, 71 Ill. 250; 22 Am. Rep. 100; Smith v. Milburn, 17 Iowa, 30; Verry v. Watkins, 7 Car. & P. 308; Shattuck v. Myers, 13 Ind. 47; 74 Am. Dec. 236. But aliter if defendant did not know it: Lea v. Henderson, 1 Cold. 146. The woman's chastity prior to the alleged seduction

is not to be presumed, but is a fact to be proved: Bailey v. O'Bannon, 28 Mo. App. 39.

Carpenter v. Wall, 11 Ad. & E. 803. Testimony that the girl had, previous to the time of the alleged seduction, introduced another party to her parents as her husband is immaterial as not tending to show unchaste conduct: Burtis v. Chambers, 51 Iowa, 645.

8 Wallace v. Clark, 2 Over. 93; 5 Am. Dec. 654; Carder v. Forehand, 1 Mo. 704; 14 Am. Dec. 317; White v. Murtland, 71 Ill. 250; 22 Am. Rep. 100; Watry v. Ferber, 18 Wis. 500; 86 Am. Dec. 789. By general reputation, but not by her reputation among a particular class of people: Drish v. Davenport, 2 Stew. 266. On the question of a girl's reputation for chastity, one may testify that he never heard anything against it, and that he never heard it talked about: State v. Bryan, 34 Kan. 63.

9 See ante, § 1118.

10 Eicher v. Kistler, 14 Pa. St. 282; 53 Am. Dec. 551.

11 McKern v. Calvert, 59 Mo. 243.

evidence of his bad character is admissible by proof of general reputation;' but not of particular facts, nor that he was devoid of natural sensibilities. Proof of gifts to the daughter is not admissible in reduction of damages, when not shown to have been applied to the benefit of plaintiff. In an action for the seduction of the plaintiff's reputed daughter, evidence that his marriage with his reputed wife is void is admissible on the defendant's part, to rebut a presumption of actual service, by showing that the plaintiff was not legally entitled to her services, and in mitigation of damages.5

But evidence is not admissible that he (the defendant) had offered to marry the girl; or of his general reputation for chastity; or of his good character, when there has been no attempt to impeach it; or that his general character is that of a modest and retiring man." The seduced girl may refuse to say, on cross-examination, whether she had connection with other men, either to show her bad character or to contradict her.10 So may witnesses refuse to testify as to having had criminal connection with her."

§ 1123. Pleading. Pleading. The petition in a parent's action for his daughter's seduction must aver her minority.12

Reed v. Williams, 5 Sneed, 580; 73 Am. Dec. 157. Contra, Dain v. Wyckoff, 18 N. Y. 45; 72 Am. Dec. 493.

Reed r. Williams, 5 Sneed, 580; 73 Am. Dec. 493.

Grider v. Dent, 22 Mo. 490. Russell v. Chambers, 31 Minn. 54. 5 Howland v. Howland, 114 Mass. 517; 19 Am. Rep. 381.

White . Murtland, 71 Ill. 250; 22 Am. Rep. 100; Ingersoll v. Jones, 5 Barb. 661.

Watson v. Watson, 53 Mich. 168; 51 Am. Rep. 111.

も

447.

Delveer. Boardman, 20 Iowa,

McRae v. Lilly, 1 Ired. 118.

1 Hoffman v. Kemerer, 44 Pa. St. 452; Doyle v. Jessup, 29 Ill. 460;

Shattuck v. Myers, 13 Ind. 46; 74 Am. Dec. 236; Heed v. Williams, 5 Sneed, 580; 73 Am. Dec. 157; Vaughn v. Perine, 3 N. J. L. 728; 4 Am. Dec. 411. In an action for her own seduction, it is improper to ask her, on cross-examination, for the purpose of impeaching her character, if she had not had sexual intercourse with other men; but if a child had been born as the result of the alleged seduction, the inquiry is proper on the question of paternity, in order to mitigate the damages: Smith v. Yaryan, 69 Ind. 445; 35 Am. Rep. 232.

11

Vaughn. Perine, 3 N. J. L. 728; 4 Am. Dec. 411. Still their evidence is admissible: Shattuck v. Myers, 13 Ind. 46; 74 Am. Dec. 236.

12 Dodd v. Focht, 72 Iowa, 579.