dissenting.—There are many things said in the opinion of my associates to which I assent; but we must administer the law from the record. The action is brought under section 35 of the code of civil procedure, by an unmarried woman over twenty-one years of age, to recover damages for her own seduction by the defendant. The main, and in fact only, assignment of error necessary to be considered is, that the court misdirected the jury in the following instructions:
“ Seduction is the wrong of inducing a female to consent to unlawful sexual intercourse, by enticements and persuasions, overcoming her reluctance and scruples. There must be reluctance on the woman’s part to commit the act, and the consent must be obtained by flattery, false promises, artifice, urgent importunity based on professions of attachment, or the like, otherwise there is no seduction in any proper sense of the word. Sexual intercourse accomplished by means of a prom*510ise of marriage is seduction. Therefore, if you shall find that the defendant did, through enticement or persuasion, or by artifice, urgent importunity based on professions of attachment, or by promise of marriage, or the like, overcome the plaintiff’s reluctance and scruples, and thereby induced her to have unlawful intercourse with him, then you should find for the plaintiff, and assess her damages.”
For a definition of seduction we must consult the common law. It was remarked in a late case by Kelly, C. B., that: “ It has been truly said the action of seduction was founded on a fiction; but for that fiction there must be some foundation, however slender, in fact. In order to entitle a plaintiff to maintain the action, there must be in some shape or other the relation of master and servant existing between the plaintiff and the person seduced, at the tune when the seduction takes place.” (2 Moak’s Eng., R. & Am. notes, to Hedge v. Tagg )
At common law the action for seduction was grounded solely on the relation of master and servant, and the gist of the action is the loss of service ; although to establish such relationship only slight evidence is required, and the extent of the loss of service is not the measure of damages. In reality, the object of the action is to afford redress for an injury done to the parent, or other person occupying such relation. (Coon v. Moffett, 2 Pennington, 583 ; S. C., 4 Am. Dec. 403, note; Am. note to Farmer v. Joseph, 3 E. C. L. 181; 3 Sutherland on Dam. 735.)
But the injury done by the seduction to the parent or master differs in its nature from the injury done to the party seduced. And in so far as this difference exists, necessarily there must be a difference in the grounds of the action in the two cases, but no further. To the parent, or person standing in loco parentis, it can make no difference, so far as the right to maintain the action is concerned, that the injury was accomplished by force, or that the party seduced contributed to the injury. (Damon v. Moore, 5 Law, 405 ; Kennedy v. Shea, 110 Mass. 150.) But when a right of action is given to a female herself, the fact that she was a voluntary party to the injury must, on principle, go in bar to a civil action on her part for damages. *511Beyond this, however, there would seem to be no reason why in such civil action there should be any modification of the elements which constitute seduction.
“ The word ‘ seduce,’ ” said Storrs, C. J., “ although a general term, and having a variety of meanings according to the subject to which it is applied, has, when it is used with reference to the conduct of a man towards a female, a precise and determinate signification, and is universally understood to mean an enticement of her on his part to the surrender of her chastity by means of some art, influence, promise or deception calculated to accomplish that object, and to include the yielding of her person to him, as much as if it was expressly stated.” (State v. Bierce, 27 Conn. 319.)
“ Seduction ” is the wrong of inducing a female to consent to unlawful sexual intercourse by enticements and persuasions overcoming her reluctance and scruples.” (Abb.’s Diet.)
“ But the word ‘ seduction,’ ” said Cole, J., “ when applied to the conduct of a man toward a female, is generally understood to mean the use of some influence, promise, arts, or means on his part, by which he induces the woman to surrender her chastity and virtue to his embraces. But we do not suppose it must appear any dishonest promise was made to the female, to consent to the sexual intercourse. It is sufficient that the means used do accomplish the seduction and induce the female to consent to the sexual intercourse. * * * * But the woman must be tempted, allured, and led astray from the path of virtue through the influence of some means or persuasions employed by the man, until she freely consents to the sexual intercourse.” ( Crogham v. State, 22 Wis. 444.)
Now the objection of counsel to the instruction is chiefly directed to the specification of the means of the seduction. It is contended that by the use of the disjunctive in the latter part of the instruction, the court charged the jury that persuasion alone was enough to constitute seduction, and entitle the plaintiff to damages, if the jury should find that by means thereof the defendant did overcome the reluctance and scruples of the plaintiff, and thereby induce her to have sexual intercourse with *512him. Such, counsel insist, is not the law. That persuasion is not enough of itself, as a means of accomplishing seduction, unless it is accompanied or conjoined with some further and distinctive element of fraud, or artifice, or false promise, by which the virtuous instincts and scruples of the female are overcome, and she is misled or deceived.
“ The words ‘ entice,’ ‘ solicit,’ and ‘ persuade,’ as used in the pleadings in an action, and as acted upon by the courts, have a well defined meaning; they import an initial, active and wrongful effort.” (Nash v. Douglass, 12 Abb. Pr. [N. S.] 190.)
The persuasion, designed and calculated to despoil innocent womanhood of its virtue, must be essentially false or wrongful. This is its distinctive element. Its power lies in the false lights with which it allures and shipwrecks virtue—as an act, voice, look and gesture may all combine to render its spell more potent, and the charm of its influence more deceptive. A persuasion which is wrongful, that accomplishes its object—that succeeds in corrupting the mind and in defiling the heart of a pure woman, overcomes her scruples and blinds her sense of loyalty to duty and honor, and thereby induces her to surrender her chastity and virtue upon the couch of dishonor—does mislead, deceive, seduce. As a means of seduction, it is one of the most potent factors in accomplishing that result.
“ It is enough,” said McKinney, J., “ that by any means or arts he tempted or persuaded his victim to surrender her chastity.” (Reed v. Williams, 5 Sneed, 580.) Here, as in the cases already cited, and others presently to be referred to, persuasion is recognized as a sufficient means of seduction. When, therefore, the court said to the jury: “ If you shall find that the defendant did, through enticements or persuasions, or by artifice, etc., overcome the plaintiff’s reluctance and scruples, and thereby induced her to have unlawful intercourse with him, then you shall find for the ¡daintiff, and assess her damages,” there was no error committed. The court, in specifying the means of seduction, has used no terms not warranted by the books. (See note to Weaver v. Bachert, 44 Am. Dec. 159; *513Stevenson v. Belknap, 6 Iowa, 97; Gover v. Dill, 3 Iowa, 340.)
But the concurring opinion, while admitting the correctness of the instruction as an abstract proposition of law, raises the objection that it is not applicable to the evidence, and is therefore misleading. To this, I am likewise unable to assent upon this record. The bill of exceptions does not purport to contain all the evidence. It simply certifies that “ the foregoing evidence is, in brief, the substance of all the evidence introduced by either party as to the manner and circumstances of the sexual intercourse.” There is no pretense that it contains all the evidence of the means used to bring about and accomplish the seduction. It is only the “ substance,” “ as to the manner and circumstances ” of the act. It may be admitted that the instructions of the court should be based on the evidence, and not on the facts of which there is no evidence. And unless the record discloses otherwise, we are bound to assume the court has performed its duty, and that there was evidence to which the instruction was applicable.
In State v. Tom, 8 Or. 178, Boise, J., said: “It does not appear from the bill of exceptions whether or not all the evidence that was before the court has been reported to this court. * * * If all the evidence adduced in the court below in the trial of their challenges is in the bill of exceptions, that fact should be stated; and as it is not stated, we must presume that the circuit court had sufficient evidence to support its findings.” (See also State v. Jackson, 9 Or. 457.)
As it is not stated that this bill of exceptions contains all the evidence, we must presume the instructions were waranted by the evidence.
Again, there is no such assignment of error. Nor at the argument was there any suggestion that the instruction was erroneous, for the reason that there was no evidence of persuasion to which it could apply. The exception to the instruction was general—that it did not state the law—and the argument was that persuasion as a means was not sufficient of itself to accomplish seduction, and that the instruction was therefore *514erroneous and injurious. The sufficiency of this assignment of error and the argument upon it, I have already sufficiently considered.
And, lastly, if the instruction was not applicable to the facta for want of evidence of persuasion, the attention of the court should have been called specifically to the point claimed as error. As the exception to the instruction was general, it simply challenged the correctness of the law as stated in the instruction, and which in the concurring opinion is admitted correct in the abstract; but failed to suggest or point out wherein the court was wrong, and give it an opportunity to obviate counsel’s objection. “It is a wholesome rule,” said Church, C. J., “ that the attention of the court must be drawn to the precise point intended, otherwise an exception will not avail.” (Schile v. Brokhahus, 80 N. Y. 620.) If the instruction laid down no erroneous principle of law; was a correct exposition of the law as to the means by which seduction might be accomplished; by a mere general exception the court could not know the point counsel intended to raise, or in what the error consisted. In fact, in that form it was calculated to mislead the court, and conceal the real objection relied upon as error.
In Jones v. Osgood, 6 N. Y. 235, the court say : “ The exceptions did not call the attention of the judge to the points which were claimed to be erroneous. They did not Suggest to. his mind what the counsel excepting would have him hold, or wherein his charge was wrong. (See, also, Kearney v. Snodgrass, 12 Or. 316.)