Breon v. Hinkle

• Decision Date: 19 February 1887
• Citation: 14 Or. 494,13 P. 289
• Court: Oregon Supreme Court
• Parties: BREON v. HINKLE.

13 P. 289

14 Or. 494

BREON v. HINKLE.

Supreme Court of Oregon

February 19, 1887

Appeal fro circuit court, county of Wasco.

F.P Mays, for appellant.

F.R Strong, for respondent.

THAYER J.

The respondent brought an action against the appellant in the court below to recover damages for an alleged seduction. She averred in her complaint that on and prior to August 1, 1882 she was of chaste character and good reputation, residing at The Dalles, in Wasco county; that upon said date the appellant seduced, debauched, and carnally knew her, by reason whereof she became pregnant and sick with child, was disabled from work, was obliged to expend for care and medical attendance sums of money amounting to $500, and that, by suffering in body, mind, character, and reputation, she was damaged in the further sum of $10,000. The appellant in his answer denied the seduction, and all the allegations of the complaint except that of having had sexual intercourse with the respondent. The action was tried by jury. The respondent was a witness in her own behalf, and testified that she was 28 years of age; had been twice married and divorced; that she had had two children by these marriages; that she had never seen the appellant till about April, 1882; that her acquaintance with him from that time to the first of August of the same year--the date of the alleged seduction--was very slight, amounting only to a few casual meetings and brief calls, during which he treated her respectfully, and his demeanor was that of a "perfect gentleman;" that on the evening of August 1st, there having been down to that time nothing between them beyond a merely formal acquaintance, appellant called upon her at her room in a place called the "Palace Lodging-house," where she had previously invited him to call, and, after some general conversation, went out and brought some beer, of which both drank, she taking but little, and he drinking "an entire glass;" that, immediately after drinking the beer, appellant "grabbed her and fought with her, and she protested and fought until she had no strength;" that during the struggle he "promised to marry her, and made every promise," but she still refused to yield to his embraces, and he had carnal knowledge of her by violence, to which she never did consent;" "that, while she and the defendant were struggling and fighting, he made considerable noise, and she begged him not to make so much noise, because the other rooms in the lodging-house were occupied, and the noise would attract the attention of those in the other rooms;" that he remained in her room for some time longer, during which time he again had carnal knowledge of her, but the circumstances of this second occasion she did not recollect; that he left before morning, and he never, at any other time, had sexual intercourse with her; that he spent the next evening with her in her room, but nothing improper occurred. The appellant was also a witness in his own behalf, and, while he admitted the illicit intercourse, put an entirely different phase upon the transaction. According to his statement the connection was by mutual consent; that he remained over night with the respondent, both occupying the same bed, and that in the morning he gave her $20; that, about the first day of August, he spent two nights with her at her room, both occupying the same bed as before; that he never at any time courted her; never addressed her as a suitor for her hand, made any promise or persuaded her; never used or offered violence; that the favors he received from her were granted without objection, and with apparent willingness. The bill of exceptions states that the testimony of these two witnseses was all the evidence as to the circumstances of the sexual intercourse between the parties, or as to their acquaintance. The evidence showed that the respondent became pregnant and was delivered of a child.

The court, among other instructions to the jury, gave the following: "Seduction is the wrong of inducing a female to consent to unlawful intercourse by enticement and persuasions overcoming her reluctance and scruples. There must be reluctance on the woman's part to commit the act, and her 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 the proper sense of the word. Sexual intercourse accomplished by means of a promise of marriage is seduction. Therefore, if you shall find that the defendant did, through enticement or persuasion, or by artifice, urgent importunity based on profession 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." To the giving of this instruction the appellant's counsel excepted, and prayed the following instruction to be given the jury: "The plaintiff cannot recover in this action by reason of defendant's having sexual intercourse with her, nor by reason of any consequence of such intercourse, if such intercourse was had by him by force, against her will, and without her consent. Nor can she recover if the sexual intercourse between her and the defendant was with her consent, unless that consent was obtained by false promises, by some artifice or device by which she was deceived and misled. If she consented, with or without persuasion, merely to gratify her own or the defendant's lust, or that of both of them, or for the purpose of obtaining money for the favors she was granting to the defendant, she cannot recover, but the verdict must be for the defendant." Which the court refused as asked, and to which the appellant's counsel also excepted. The case having been submitted to the jury, they returned a verdict in favor of the respondent for $3,000, upon which the judgment appealed from was entered.

The action was brought under section 35 of the Civil Code, which provides that "an unmarried female over 21 years of age may maintain an action as plaintiff for her own seduction, and recover therein such damages as may be assessed in her favor; but the prosecution of an action to judgment by the father, mother, or guardian, as prescribed in section 34, Civil Code, shall be a bar to an action by such unmarried female." The effect of this statute was to give a right of action where none before existed. The action at common law, commonly known as an "action for seduction," was only in fact an action of trespass or trespass on the case (authorities were not agreed upon that point) for the loss of services. The person entitled to the services of the party seduced could maintain the action; but none other could. Bartley v. Richtmyer, 4 N.Y. 38. The law gave no remedy to the parent for the mere seduction of his daughter, however wrongfully it might have been accomplished. Incontinence on the part of a young woman could not be made the foundation of an action against the person who had tempted her, and deprived her of her chastity; but if she were living with her parent at the time of the seduction, and the seduction were followed by pregnancy and illness, whereby the parent was deprived of the filial services theretofore rendered to him, an action was maintainable against the seducer. Add. Torts, § 1274. The foundation of the action was not placed upon the seduction itself, but upon the loss of services. Id. note 1. If the plaintiff consented to or connived at the seduction, he could not recover, ( Seager v. Sligerland, 2 Caines, 219; Smith v. Masten, 15 Wend. 270;) nor if he was guilty of gross negligence. The reason of this was that no party to a wrong could recover for an injury received in consequence thereof, and for the same reason the female herself could not recover damages. A parent, however, was not confined, in the recovery of damages, to the mere loss of services. The jury were authorized to give damages for the distress of mind he had sustained in being deprived of the society and comfort of his child, and by the dishonor received; and they could take into consideration the situation in life and circumstances of the parties, and say what they thought, from all the circumstances, was a reasonable compensation to be given to the parent.

The statute referred to, and under which the action was brought has created a right of action in favor of the female where she is unmarried and over the age of 21 years; and the question arises as to how it should be construed. Under the former regime it was not important whether the party seduced consented or not. The injury to the master was the same. He lost the service and suffered the disgrace; and, although the wrong was the result of the joint act of the servant and the seducer, it was several. All that was necessary was that he did not contribute to it. But the statute has, in such cases, removed the objection that stood in the way of the participant's recovery of damages. Still, however, the intent of the legislature in adopting the said provision must be ascertained in order to give it a proper construction. It must have intended that the woman, if over 21 years of age and unmarried, could maintain an action for her own seduction in any case in which a parent could for the seduction of a child, or a guardian for the seduction of his ward, or else intended to give such right of action where the defendant was mainly in the wrong, and the plaintiff comparatively guiltless; that it was either the creation of a new right of action in favor of a debauched female, or vesting in her the same right of action to recover damages her parent or guardian would have had if she had been an infant daughter or under guardianship. If the...