Morgan v. Ross

• Citation: 74 Mo. 318
• Parties: MORGAN v. ROSS, Appellant.
• Decision Date: 31 October 1881
• Court: United States State Supreme Court of Missouri

74 Mo. 318

MORGAN

v.ROSS, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Ray Circuit Court.--HON. GEO. W. DUNN, Judge.

AFFIRMED.

The evidence, on behalf of plaintiff, was that his daughter, at the time of the alleged seduction, was abt seventeen years of age; that she had always lived with him, except during part of the summer of 1873, when she was hired out by her mother at $2 per week; that she returned home in August, 1873, and there performed domestic duties; that she was the oldest of nine children; that her mother was living; that defendant waited upon his daughter in the spring of 1873, until the month of May, when he left the neighborhood, and went to his father's house in another county; that he returned in September following and resumed his visits to plaintiff's daughter, calling on her once a week, and occasionally taking her into society; that her child was born early in the next May; that upon defendant's visits to his daughter, they would sometimes sit up together in the kitchen as much as two hours at a time; that plaintiff spoke to his daughter of the impropriety of keeping company with defendant in the kitchen and told her she was too young, to which she replied there was nothing wrong going on between them; that plaintiff had no physician with his daughter when confined, furnished her no clothing during her illness, and that his actual loss for her services and expenses during her illness was $40. The testimony of the daughter was that defendant was the father of her child; that he seduced her in her father's kitchen on the night of September 7th, 1873; that at the same place and during the same month they had sexual connection several times; that defendant, previously, on the 22nd day of August, 1873, had promised to marry her. Evidence was given of her good character.

Defendant testified that he first met plaintiff's daughter in the spring of 1873, at a party; that she invited him to call upon her at her home; that during the spring he called upon her several times; that from her manner and demeanor he became satisfied that she was a girl of loose virtue; that the second or third time he called, he had connection with her, without her making any resistance whatever, and frequently afterward until he left the neighborhood in May of that year; that she never at any time refused; that she admitted to him that she was having connection with another man, and he then ceased to have connection with her; that from the last of May until the last of September or first of October, he did not visit her; that he saw her once or twice afterward during the fall, but that he never had connection with her after the month of May. Evidence was introduced tending to prove that she had connection with other parties in the summer of 1873. The daughter, in rebuttal, denied the substantial facts testified to by defendant's witnesses, whose character was impeached by witnesses for plaintiff, and sustained by witnesses for defendant.

The court gave two instructions for plaintiff--the second of which is given in the opinion--the first is as follows: If the jury find from the evidence that defendant, under the promise of marriage or otherwise, seduced plaintiff's daughter, in the year 1873, and she became pregnant with child by him, and was delivered of a child, the fruit of said carnal knowledge with defendant; that she was at the time of said seduction, and a long time before, and ever since has continued to live with her said father, and that she, during said time, rendered service for him, and that by reason of said seduction, pregnancy and confinement, plaintiff was for a time deprived of his said daughter's services and incurred expense by reason thereof, then the verdict should be for plaintiff.

Instructions numbered one, three and four were given for defendant; those numbered two and five were refused; instruction numbered five is given in the opinion; the others are as follows: (1) Unless the jury believe from the evidence that defendant is the father of the child born in May, 1874, they will find for the defendant. (2) The fact that the defendant had criminal communication with plaintiff's daughter in the year 1873, does not of itself entitle plaintiff to recover in this case. And unless the jury are satisfied from all the facts and circumstances detailed in evidence that the defendant is the father of the child, they will find for defendant. (3) It devolves upon the plaintiff to make out his case by a preponderance of evidence, and unless the jury believe that the evidence preponderates in favor of plaintiff they will find for defendant. (4) The jury are the judges of the credibility of the witnesses, and of the weight of evidence, and they will give such credit to each witness as they may consider such witness entitled to, and return their verdict for plaintiff or defendant according to the weight of the evidence.Charles A. Winslow for appellant.

In an action of this kind, the father cannot recover for injuries to the reputation of his family growing out of the seduction of his daughter. 2 Sedg. on Dam., (7 Ed.) 516; Kepler v. Hyer, 48 Ind. 499. The defendant was entitled to an instruction giving him the benefit of the absence of any promise of marriage, if the jury believed his testimony, also to the fact, of which there was evidence, that the girl had been guilty of sexual intercourse with other men, in mitigation of damages. Wood's Mayne on Dam., 662, § 686; Moak's Underhill on Torts, 348. $1,700 was awarded in the nature of smart money, nominally for injured feelings in a case where, according to plaintiff's showing, the woman would have a right of action for breach of promise. The verdict was the probable result of prejudice.

Joseph E. Black and James M. Davis for respondent.

1. The court below having an opportunity to observe the conduct and actions of jurors during the progress of the trial, was fully qualified to pass upon the weight of the affidavits filed in the motion for a new trial, and, except for the strongest reasons, and in a most flagrant case, will not disturb the action of the court in overruling the motion for a new trial. State v. Floyd, 15 Mo. 349; Hilliard New Trials, (2 Ed.) p. 200, § 4; Ib., p. 208, § 11; Stewart v. Small, 5 Mo. 525; Price v. Evans, 49 Mo. 396; State v. Upton, 20 Mo. 399; State v. West, 69 Mo. 401

2. There being evidence offered in the case to sustain all the issues involved, and the jury being the judges of the weight of the evidence, no question can arise upon the sufficiency of the evidence, the verdict evidencing neither gross partiality or fraud upon part of the jury. Garneau v. Herthel, 15 Mo. 191.

3. The instructions asked by plaintiff, and given by the court, declare the law properly. Greenleaf on Ev., (10 Ed.) vol. 2, p. 509, § 579; Reeve's Domestic Relations, (3 Ed.) 425.

4. The second instruction asked by defendant was properly refused by the court, as it is but a repetition of the first instruction asked by defendant, and given by the court, in another form; and attention is called particularly to one fact, whereas the minds of the jury should be left free to consider all the facts in the case, and their minds should not be inclined by an instruction, to place too great stress upon any particular fact. Bay v. Sullivan, 30 Mo. 191; Gonsolis v. Gearhart, 31 Mo. 585; State v. King, 44 Mo. 238; Chouquette v. Barada, 28 Mo. 491.

5. The fifth instruction asked by the defendant was properly rejected by the court, because it is not simple but compound. The latter clause stating a correct principle, but blended with other propositions not stating correct principles, leaving it to the jury to discriminate, instead of the court, and is calculated to mislead and confuse their minds. The instruction assumes that defendant was the father of the child, that defendant seduced the girl, that he seduced her without promise of marriage, and that she, before or about the time, and after seduction, was having carnal intercourse with other men, and asks the jury to take these assumed facts into consideration in mitigation of damages. Otto v. Bent, 48 Mo. 23; Crole v. Thomas, 17 Mo. 329; ...