The statement of facts in the record shows:
"This action was brought in the Court of Common Pleas for Pickens County in June, 1920, by Henry F. Rumler against J.P. Gantt. The action was for damages in the sum of $20,000.00 for the loss of services of plaintiff's daughter and causing the plaintiff shame, humiliation, and mental anguish by seducing, debauching, and carnally knowing Clara Rumler, the daughter of the plaintiff. The defendant answered the complaint, setting up a general denial and alleging that Clara Rumler, the daughter of plaintiff, was at the time mentioned in the complaint, and prior thereto of unchaste and disreputable character, and that her unchastity was notoriously known in the community where she resided, and the defendant further alleged that Fred Williams was the father of said child given birth to by plaintiff's daughter, and the defendant further alleged that plaintiff was grossly negligent and careless in allowing his said daughter, Clara Rumler, to take automobile rides with the defendant, both in the day and nighttime, knowing at the time that the said defendant was a married man, and that by said acts the said plaintiff contributed to his own injury, and the said acts were directed and proximately the cause of said injury. The jury rendered a verdict for the plaintiff in the sum of $1,250.00 actual damages."
From the judgment entered on this verdict this appeal is taken. The first is:
1. "Because the presiding Judge erred, over the objection of the defendant's attorney, in allowing the exhibiting of the child of Clara Rumler, plaintiff's daughter, to the jury in order to show that the defendant was the father of said child." The exhibition of the child was approved inState v. Whitaker, 103 S.C. 212; 87 S.E., 1001; Ann. Cas. 1918E, 467, and the State v. Teal, 108 S.C. 455;95 S.E., 69. If the child can be exhibited to prove the fact *Page 123 of a seduction, the fact can only be inferred from the likeness of the child to its father. The mere exhibition of a child could not even tend to prove an offense or its author. The likeness may tend to prove both. This exception is overruled.
2. The second exception complains of error in allowing in evidence a statement that a warrant had been issued for the defendant. This evidence was certainly not prejudicial to the appellant, when it also appeared that the warrant had been withdrawn.
3. At the near approach of the recess hour the appellant's attorney asked that the Court take its recess then, so as to allow him time to converse with some witnesses, who had just arrived, and with whom he had had no opportunity to confer. To that request the trial Judge said:
"All right. I can't imagine that they will be very helpful, but I'll give you until 3 o'clock, but I'm not going to let you put in incompetent testimony."
This was prejudicial error. It is true it was not said in the regular charge, nor in any logical response to the motion. The jury might well have concluded that the defendant's cause was irretrievably lost in the judgment of the presiding Judge. I think the remark was prejudicial error, and the exception should be sustained.
4. The last assignment of error is that his Honor refused to charge:
"If you believe from the evidence that the course of conduct which existed between the daughter of plaintiff and the defendant, and allowed to exist by the defendant, was so gross as to warrant a presumption of assent."
His Honor charged it with the very proper addition, "with the knowledge of the plaintiff." There was no error here.
I think the judgment appealed from should be reversed and a new trial ordered, for the reasons above stated. *Page 124