Anderson v. Aupperle

• Decision Date: 28 April 1908
• Parties: ANDERSON v. AUPPERLE.
• Court: Oregon Supreme Court

95 P. 330

51 Or. 556

ANDERSON v. AUPPERLE.

Supreme Court of Oregon

April 28, 1908

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

Action by Lucy Anderson against Earl Aupperle. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff sues as one standing in the place of a parent for the seduction of her granddaughter Viletha Thurman by defendant which occurred on or about January 22, 1906. It is alleged that Viletha was then under 18 years of age, and ever since 1893 had been a member of plaintiff's household, in consequence of the desertion and abandonment in 1891 by her father of his family, and the death of her mother in 1893 and that plaintiff was entitled to the services and society of her granddaughter; that as a result of the seduction Viletha became sick and pregnant and unable to render any services to plaintiff; that in addition thereto plaintiff would thereby be compelled to expend more than $200 in nursing and taking care of her granddaughter during the latter's pregnancy and sickness; and that plaintiff had been injured in her reputation and in that of her family and wounded in her feelings and disgraced to her damage in the sum of $10,000. Defendant moved to strike out that part of the complaint referring to special damages, and upon a denial thereof he demurred on two separate grounds, viz., (1) incapacity to sue, and (2) insufficient allegation of facts to support the action. The demurrer also having been overruled, defendant answered by a general denial of the whole complaint with an affirmative defense that Viletha Thurman was not at any of the times mentioned in the complaint a chaste or virtuous child or woman. Issue being joined by a reply, a trial was had before a jury, and at the close of plaintiff's case defendant moved for a nonsuit upon the ground that plaintiff had not legal capacity to sue that she had not proved facts sufficient to entitle her to a verdict, and that there was not sufficient proof of the seduction. The motion being denied, defendant offered his testimony, whereupon the jury returned a verdict in plaintiff's favor. From the judgment entered thereon defendant appeals, assigning as errors the overruling of his motion and demurrer, besides numerous exceptions taken to the rejection of testimony, and the giving of and refusing to give certain instructions.

A.M Cannon, for appellant.

John A. Jeffrey and M.E. Pogue, for respondent.

SLATER C. (after stating the facts as above).

At common law the only mode in which an action for seduction could be maintained is by bringing such action in the name of some person having a right to the services of the person seduced, the gist of the action being loss of service. 19 Ency.Pl. & Pr. 401; 4 Sutherland, Dam. 3755. The mere relation of parent and child will not give a right of action for the seduction of an unmarried female. That of master and servant, either actual or constructive, must exist. If such a relation exists, it matters not to the cause of action whether the plaintiff be parent, or merely stands in the place of a parent. 4 Sutherland, Dam. 3758. Such are the rules of the common law, and it is not contended here by defendant that under these rules, if they have not been superseded by statute in this state, plaintiff may not recover for the damages alleged. But it is argued by him that by B. & C. Comp. § 35, as interpreted and construed by this court in Patterson v. Hayden, 17 Or. 238, 21 P. 129, 3 L.R.A. 529, 11 Am.St.Rep. 822, the right of recovery is limited to the father, or, in case of his death or desertion of his family, to the mother, for the seduction of a daughter, and that loss of service can no longer in this state be the basis for an action of seduction. At any rate it is claimed that since that decision a person not named in the statute suing for the seduction of a female ought to be limited to a recovery of actual compensatory damages for the loss of services, and be denied exemplary or punitive damages. The common-law remedy for loss of service is not displaced or superseded by a statute authorizing a father to maintain an action for the seduction of his daughter, without allegation or proof of loss of service ( Shellman v. Frymire, 9 Ky.Law Rep. 894; Hancock v. Wilhoite, 1 Duv. [ Ky.] 313), especially in the absence of any expression of a legislative intent that such shall be its effect. 25 Am. & Eng.Ency.Law (2d Ed.) 201. Such statutes are usually treated as cumulative in their effect; but under any view or construction of this statute the common-law right of action of persons who stand in the relation of parent to the seduced female could not be affected one way or the other, for they are not mentioned in the statute. As to the extent of the recovery in an action for seduction of a female, the plaintiff may recover exemplary damages when he is so connected with her as to be capable of receiving injury through her dishonor, regardless of whether malice existed. The act of seduction is necessarily willful. In estimating the injury the jury may take into consideration, besides the loss of services and disbursements for medical treatment and other necessary expenses, the wounded feelings and affections of the parent, the wrong done to him in his domestic and social relations, the stain and dishonor brought upon his family, and the grief and affliction suffered in consequence of it, and give damages accordingly. If the action is brought by any other person than a parent, standing in the relation of parent, it will be governed by the same principles and rules of evidence. 4 Sutherland, Dam. § 1283. Hence no error was committed in overruling defendant's motion to strike out parts of the complaint, or his demurrer thereto.

During the course of the trial, and while Viletha Thurman was upon the witness stand in plaintiff's behalf, she was requested to bring forward the baby to which she had testified she had given birth, and of which the defendant was the father. The child, being then a little under three months of age, was offered and received in evidence for the inspection of the jury, over the objections of the defendant. It is strongly urged by defendant's counsel that it is error to expose, as an exhibit before the jury, a child less than three months of age for the alleged purpose of proving a resemblance to the defendant. The argument is that, "although a resemblance between the parties, properly proved, is some evidence upon the issue, but during the first few weeks or even months of a child's existence it has that peculiar immaturity of features which characterize it as an infant, and that it changes often and very much in looks and appearance during that period" ( Clark v. Bradstreet, 80 Me. 454, 15 A. 56, 6 Am.St.Rep. 221), and that such evidence, when deduced from the exhibit of an immature child, "is too vague, uncertain, and fanciful a nature to be submitted to the consideration of a jury" ( Hanawalt v. State, 64 Wis. 84, 24 N.W. 489, 54 Am.Rep. 588). There is, however, a decided conflict of authorities upon the admissibility of such evidence, the adjudications ranging from a total exclusion thereof to an unqualified admission.

We shall not attempt a review of the cases to determine the correct principle of law which should govern the admission of such evidence, or to ascertain where the weight of authority lies; but it will be sufficient for that purpose to quote from the recent and most able opinion of Mr. Chief Justice Parsons in the case of State v. Danforth, 73 N.H 215, 60 A. 839, 111 Am.St.Rep. 600, decided in 1905. After reviewing most of the cases on this point he says, at page 219 of 73 N.H., page 841 of 60 A. (111 Am.St.Rep. 600), of the opinion: "All the authorities concede, in effect, that there may be cases in which the maturity of the child, or the character of the peculiarities relied upon as a ground of resemblance or dissimilarity, render the child competent evidence on the issue of paternity. The objections urged to the competency of the evidence go rather to its weight than to its relevancy. When comparison is made to determine a difference of race or otherwise, greater weight may properly be given to the evidence; but the ground of its relevancy is the same as when the comparison is between individuals. The objection resting upon the immaturity of the child is merely to the definiteness of the proof. If all individuals developed by a fixed rule, it might be possible to fix upon a certain age below which the child should not be exhibited as evidence on this issue. If there were such an age, its scientific determination would involve the finding of a question of fact upon physiological evidence--an investigation which this court has no means or power to make. Whether the features of a child are sufficiently developed to authorize its use as evidence by comparison with the alleged parent is purely a question of fact. A court of law cannot determine this question of fact as a rule of law without evidence, upon their personal impressions, without basing their judgment upon a 'vague, uncertain, and fanciful' foundation. Conceding that resemblance properly proved is an evidentiary fact competent for consideration in connection with...