Majority
p. 338Stiles vs. Tilford. NEW-YORK, May, 1833.
Headnote
Where, in an action on the case for the seduction of a daughter, brought after pregnancy of the daughter but before the birth of the child, evidence was received of loss of service and expenses incurred after the commencement of the suit, the court refused to set aside the verdict, where the cause of action was clearly established independently of such evidence.This was an action on the case for the seduction of the plaintiff’s daughter, tried at the Warren circuit in June, 1831, before the Hon. Esek. Cowen, one of the circuit judges.
The daughter of the plaintiff lived with the defendant as his house-keeper for one year from October, 1829. In July, 1830, the defendant had sexual intercourse with her and she became pregnant. In October she returned to her father’s house, and soon after became unable to work as she had been accustomed ; she assisted her mother in sewing, but could not earn her subsistence. In December this action was commenced ; in January, 1831, the daughter came of age, and in April following was delivered of a child. The plaintiff provided for his daughter during her pregnancy, at the time of her lying-in, and during her subsequent sickness. The evidence of expenses incurred subsequent to the commencement of the suit was received by the judge, though objected to by the defendant, who afterwards requested the judge to charge the jury that the plaintiff was not entitled to recover for loss of service, or for expenses incurred after the commencement of the suit, nor for the expenses of the lying-
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in, as the actual payment of such expenses had not been proved. The judge refused so to charge. The jury found a verdict for the plaintiff for $800 damages. The defendant made a case and also tendered a bill of exceptions, and now moved for a new trial.
O. Clark & S. Stevens, for the defendant.
The judge should have instructed the jury that the plaintiff was not entitled to damages for loss of service, and for damages incurred after the commencement of the suit. Cro. Jac. 618. 1 Vent. 103. 2 Saund on Pl. & Ev. 785. 5 T. R. 361. Starkie’s Ev. part 4, 1309. 3 Camp. 519. 1 Ld. Raym. 329. 5 Cowen, 116. 11 East, 24. 2 Wendell, 461. 1 Chitty’s Pl. 390. 2 Saund. 171. Where a cause of action is properly laid, and other matter is stated under a scilicet, the court will disregard such matter, on the presumption that erroneous evidence was not received; but such presumption, cannot be indulged against the fact affirmatively appearing on the bill of exceptions.
W. Hay,jun. for the plaintiff,
insisted that the judge was right in refusing to charge the jury as requested by the defendant. A right of action existed previous to the commencement of the suit, and the plaintiff was entitled to recover for the loss of service subsequently accruing, and for subsequent expenses, upon the same principle that, in an action upon a contract for the payment of a sum of money with interest, a plaintiff is permitted to recover interest accumulating after the commencement of the suit. The plaintiff could not have brought a new action for such subsequent loss of service and expenses, and therefore should be permitted to recover them in the suit already brought. 2 Saund. 171, c.
By the Court,
The cause of action was abundantly made out, independently of the testimony objected to. The daughter says expressly that she returned to her father’s house because she was incapable of working as usual, and that after her return, she was unable to earn her subsistence as formerly. Here is express loss of service, and all this
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was before she arrived at the age of 21. The testimony objected to was merely in aggravation of damages, and we all know that although loss of service must be shown, yet that when any considerable damages are given, they are given not to cover the actual loss sustained, but for the injury to the parental feelings. 4 Cowen, 412. 5 id, 106. 1 Wendell, 447. 3 Campb. 519. 4 Cowen, 355. 2 Phil. Ex. 157, and cases there cited. The action is altogether anomalous in its character, and the ordinary rules of evidence cannot in all their strictness be applied to it, without defeating its essential object. No separate action could ever be maintained for the expenses and loss of service incurred after the commencement of this suit; the objection therefore does not lie, that the defendant may be made to pay twice for the same damages. According to the strict rules of evidence, perhaps the testimony objected to was inadmissible ; but, I am inclined to think, we should be justified in saying that, from the nature of the action, it is to be intended that the evidence had little or no influence on the verdict of the jury, and that a new trial ought not therefore to be granted. This principle is applied in motions in arrest of judgment, where damages are laid subsequent to the commencement of the action, or previous to the plaintiff having any right of action. In such case, if the matter is laid under a scilicet, the court avail themselves of that circumstance to say, that it is not to be intended that the jury took it under their consideration. 2 Saund. 171, a. note 1, and particularly 171, c. of same note. 1 Chitty's Pl. 384 to 390. 7 Wendell, 193.
Upon the case, the charge of the judge is said to be erroneous. It is in some part of it expressed in strong terms, but I perceive no error in it which calls for, or would justify the granting of a new trial.
Motion for new trial denied.