ACTION of trespass on the case, for seduction of plaintiff's daughter.
The daughter was called as a witness and proved that she lived *Page 336 with her father, and did such acts of service as are usual in a house, and that the defendant seduced her.
Question. — Did he ask you to marry him? Objected to.
Mr. Cullen. — The object of the question is to prove a breach of promise of marriage. This is inadmissible in this action; because it would be the subject of another action by the girl herself. (3 Camp. N.P., 519; 7 Wend. Rep., 193; 1 Johns. Rep., 299; 3 Wils. Rep., 18.)
Mr. Bayard. — I might avoid answering the argument, because the question only goes to prove attentions as a suitor; but we want a decision by the court on the right to prove a breach of promise, which to say the least, is as yet a vexed question.
The fiction on which this action was founded, has been thrown away. Whatever its form, the object is to recover damages for the entire injury resulting from the act. And as regards the question of damages, the amount depends upon the relative character of the parties, and the circumstances under which the seduction was accomplished. The loss of service is the ground of action, the seduction and its consequences are the ground of damage. I admit that the jury should be told not to give damages for the breach of promise; but the promise ought to be given in evidence, to show the manner of the seduction.
The decisions have been fluctuating, dependent on the progressive character of the object itself; and evidence has been admitted not merely of promise of marriage, but of solicitation to destroy the child in aggravation of damages. (3 Steph. N. P., 2355; Rose. Evid.; 2 Eng.Exch., 343, [5 Price, 641;] 3 Stark. Ev., 1310; 2 Greenl. Ev., 475, § 579.)
On principle the promise of marriage being an aggravation of the circumstances under which the seduction is effected, and that aggravation being the rule of damages; such promise is proper evidence in an action by the father; though no damages can be given to him for the breach of that promise. And it is no answer that it might be evidence in an action by the daughter, for the breach of promise. The same promise may be a ground of damage to both father and daughter, and the true measure of damage cannot be reached without allowing the evidence in both actions.
By the Court. The question asked may be answered; and, though we hesitate somewhat as to the propriety of the other on *Page 337 principle, we think the authorities are against proving the promise of marriage.
Another witness was asked if the defendant was a man of property, which was objected to.
Mr. Cullen. Damages are to be given for the plaintiff's injury; the outrage to his feelings; and not according to the poverty or wealth of the defendant. (2 Leigh N. P., 1461.)
Mr. Bayard. — All the cases agree that exemplary damages may be given in these cases, and to judge of what is exemplary in a particular case, the defendant's wealth must be measured. (2 Term Rep., 4; Johnson vs.Collins, Supreme Court, Kent; Springer vs. Barker, N. Castle county.)
The Court admitted the evidence on the authority of these cases, and the general understanding of the bar. (See 4 Harr. Rep., 520; 5 Greenl.Ev., § 269; and que. as to 4 Harr. Rep., 520.)
For the defence, a witness was asked if the plaintiff's character was that of a man notoriously addicted to women? This was objected to.
Mr. Bayard. — It is entirely too general, and inadmissible. If they can show that he connived at the debauchery of his daughter, or did not pay proper attention to his daughter's conduct, it may be admissible.
Mr. Cullen. — The question is, what damages shall be given to this man for his violated feelings. If he has been notoriously guilty himself, how can he complain if retributive justice overtakes him? We propose to prove him a man of profligate principles, and practices conformable to them. (2 Greenl. Ev., 475.)
Mr. Saulsbury. — It is conceded that the social condition and character of the plaintiff are in issue. If not, how is the injury to his wounded feelings to be measured?
Mr. Houston. —
Is the plaintiff to come prepared to defend his own character, in an action for the seduction of his daughter? In actions of crim. con., the adultery of the husband may be proved, as a kind of forfeiture of his remedy; it leads to the misconduct of his wife. But how are the dissolute habits of the father, having no relation to the lapse of his daughter, to be given in evidence for the seducer of his daughter? (Stark. Ev., 1310.)
By the Court.