delivered the opinion of the Court:
This was an action for the seduction of plaintiff’s daughter, which resulted in a verdict and judgment for plaintiff, for $500 damages. The defendant appealed.
The evidence shows, that at the time of the act complained of, the daughter was living with her father, and was about fifteen years of age, and that the defendant was her uncle by marriage, he being the husband of her mother’s sister or half-sister; that the girl became pregnant and was delivered of a child, the result, as the girl testified, of an act of'sexual intercourse with the defendant. The defendant denied having such intercourse. The testimony of the daughter was corroborated by that of her father, the plaintiff, of admissions made by the defendant.
The point is made, that there was no seduction in the case. If the sexual intercourse, with the result testified to, took place, there was enough of seduction to sustain the suit. All that the declaration alleges, or need allege in this respect, is, that the defendant assaulted and debauched and carnally knew the daughter. In the case of Kennedy v. Shea, 110 Mass. 147, an action for seduction it was said, respecting this point: “As the gist of the action is, the debauching of the daughter and the consequent supposed or actual loss of her services, it is immaterial to the plaintiff’s claim under what particular circumstances the injury was wrought, or whether it was accompanied with force and violence or not. The action will lie, although trespass m et armis might have been sustained. It would be no defense that the crime was rape and not seduction.”
In White v. Murtland, 71 Ill. 268, a similar action, this 'court said: “Upon the principle that plaintiff’s daughter was incapable of consenting, the fact that she yielded without force or seduction would not constitute a bar to the action. Still, it seems to be settled, and properly so, that if a seduction be not proved, damages for seduction should not be given.”
It is then urged, that the damages are excessive if none be allowed for seduction. We do not so view them.
It is further objected, that an instruction given for the plaintiff was erroneous, that if the jury “ shall believe, from the evidence, that the defendant seduced and had sexual intercourse,” etc., in that it led the jury to believe that it was a case of seduction, and that there was no proof to base such an instruction upon. We can not think, from the amount of the damages given, that the jury were in any way misled, or the case of the defendant prejudiced by the instruction. The verdict might have been so large as to have justified a different conclusion.
There are some objections made, as to the admission and rejection of testimony, which we regard as without force.
It is objected that the verdict is not sustained by a preponderance of evidence. The testimony was conflicting. We perceive no sufficient reason for setting aside the verdict on the ground mentioned.
The newly discovered testimony set up, was but cumulative, and not sufficient ground for a new trial, according to the numerous decisions of this court.
Finding no sufficient reason for the reversal of the judgment, it is affirmed.
Judgment affirmed.