This is one of those cases where a judge must guard against letting his heart rule his head. The suit is for damages, ex delicto, against a man and his minor son, on the allegation that the son seduced the plaintiff's daughter, under the age of 18 years. It is not alleged that the girl had less than ordinary intelligence, or that she was under the age of discretion. She was lacking in discretion in this instance, which is the cause of her complaint. The rule applicable to contributory negligence is applicable to this case. When two persons join in the commission of a wrong, knowing what may be the natural consequence, neither is responsible to the other in damages for such consequence.
The fact that young Deshotels was guilty of a felony, if he was over the age of 17 years (which is not alleged), does not give the girl a cause of action for damages. She was morally, if not legally, a particeps criminis, though the statute (Act No. 192 of 1912) does not make her guilty of a crime. It will not do to say that, according to the statute, a girl under the age of 18 years cannot legally consent to sexual intercourse. What the statute says is that, if a person over the age of 17 years shall have carnal knowledge of an unmarried girl between the ages of 12 and 18 years, with her consent, he shall be deemed guilty of a felony. But it does not follow, by any means, that he is liable in damages to her for the natural consequence of what he has done with her consent. It seems anomalous to say that a person can have a right of action for damages resulting *Page 289 from a criminal act which he or she consented to and participated in, and without whose consent and participation the crime could not have been committed.
The only suits for damages for seduction that have come to this court heretofore, as far as I know, were the two cases cited in the majority opinion in this case. Carson v. Slattery,123 La. 825, 49 So. 586, and Overhultz v. Row, 152 La. 9, 92 So. 716. It is true that, in each of those cases, the plaintiff was above the age of majority but the ruling in each case rested, not upon that fact, but upon the broad principle that no one has a right of action for damages resulting from a wrongful act in which he or she participated.
In other jurisdictions the rule is that the parent has a right of action for damages against a seducer of a girl under the age of majority, if the seducer entered the parent's house illegally, as a trespasser, and debauched the girl. But the right of action in such cases is limited to the damages suffered by the innocent parent. The girl who has participated in the wrong has no right of action against the seducer, unless it is conferred expressly by the statute. 24 R.C.L. pp. 732, 733, and 739.
"At common law, a seduced female has no cause of action against her seducer, not only because she is a party to the wrongful act, but also because loss of service is indispensable to a right of recovery, and no one except those entitled to the services of the female can maintain an action for the seduction, the right of action being based solely upon the relation of master and servant." 35 Cyc. 1294.
Under article 1934 of the Civil Code, damages arising from a tort are recoverable "without calculating altogether on the pecuniary loss, or the privation of pecuniary gain," but there is nothing in the civil law contrary to the common-law rule that a woman who is seduced has no cause of action therefor, because she is a party to the wrongful act. *Page 290
I respectfully dissent from the majority opinion in this case.