Oberlin v. Upson
Decision Date | 18 April 1911 |
Docket Number | 11580 |
Citation | 84 Ohio St. 111,95 N.E. 511 |
Parties | Oberlin v. Upson. |
Court | Ohio Supreme Court |
A woman cannot maintain action - Against her seducer, when.
In this state a woman cannot maintain an action against her seducer for damages arising from her own seduction.
The plaintiff commenced her action against the defendant in the court of common pleas, and subsequently filed an amended petition of which the material averments are as follows "That at the time of the commission of the grievances hereinafter mentioned, she the said Nora Oberlin was and now is an unmarried female.
To this amended petition a demurrer was filed, on the ground that it did not state a cause of action. The demurrer was overruled and an answer filed, and on the trial of the issues in the court of common pleas, a verdict was rendered in favor of the plaintiff. The circuit court reversed the judgment of the court of common pleas, on the ground that the amended petition did not state a cause of action, and this proceeding is prosecuted to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.
Messrs. Kramer & Jarvis, for plaintiff in error.
In all cases where the parties, either by acquiescence or convention, occupy confidential relations, the legal relation of trust and confidence exists, e. g., principal and agent, husband and wife, attorney and client. Rich v. Railway Co., 382; Cooley on Torts (1888 ed.), 598.
There is perhaps no relation of life in which more unbounded confidence is reposed than in that existing between parties who are betrothed to each other. Especially does the woman place the most implicit trust in the truth and affection of him in whose keeping she is about to deposit the happiness of her future life. Kline v. Kline, 57 Pa. St., 120; Lamb v. Lamb, 130 Ind. 273; Cooley on Torts (1888), 597.
In his promise of marriage, he obligates himself not only to keep the contract of marriage, but also to conduct himself in such a manner as to command her respect, confidence and trust, and to conduct himself so that he will not abuse the confidence and betray the trust placed in him. The most serious fraud accomplished in this relation is that of seduction. Sheahan v. Barry, 27 Mich. 217; Cooley on Torts (1888), 597.
Then according to the general proposition laid down above, the female, the party injured, could elect to bring an action ex contractu for a breach of the contract, or she could bring an action ex delicto for a betrayal of the trust and an abuse of the confidence.
If she sees fit to bring her action in contract, she can introduce the fact in evidence that she was seduced, that she had sexual intercourse, became pregnant and was delivered of a bastard child. Matthews v. Cribbett, 11 Ohio St. 330; Bennett v. Beam, 42 Mich. 346; Goodall v. Thurman, 38 Tenn. (1 Head), 209; Kelley v. Riley, 106 Mass. 339; Sherman v. Rawson, 102 Mass. 395.
In considering this question of seduction, some courts have confused the terms "seduction" and "sexual intercourse." While there are no direct decisions upon the question, yet courts have in obiter dicta hesitated to sanction an action of this kind for the reason that the foundation of the action would be the sexual intercourse. It must be remembered, however, that seduction is not sexual intercourse, neither is sexual intercourse seduction. Johnson v. Holliday, 79 Ind. 151; Blagge v. Ilsley, 127 Mass. 191; Graham v. McReynolds, 90 Tenn. 673; Baird v. Boehner, 72 Ia. 318; Marshall v. Taylor, 98 Cal. 55.
The foundation of the action in tort is the breach of duty, the sexual intercourse is the result of the breach and the direct object of the breach. To be sure she gave her consent. So does every one who is defrauded by placing too much confidence in another. The foundation of the action is not what was done, but the means employed to accomplish his ends. O'Callaghan v. Cronan, 121 Mass. 114; Cooley on Torts (1888), 599.
At common law, without the promise of marriage, the female has no cause of action for her own seduction, for the reason that she has no foundation for her action. He owes her no duty for the breach of which he would be liable. Woodward v. Anderson, 72 Ky. (9 Bush), 624; Heaps v. Dunham, 95 Ill. 583; Bartlett v. Kochel, 88 Ind. 425; Cole v. Hoeburg, 36 Kan. 263.
When the promise of marriage is made and she relies upon it, the relation is established which places a legal duty upon him, for the breach of which he is liable.
Sexual intercourse, impregnation and birth of a bastard child is an injury much more proximate to the breach of duty than to the breach of contract. Courts almost universally allow these facts to be introduced as evidence in a suit for breach of contract. Then why should they not be alleged and proved in an action for breach of duty? Giese v. Schultz, 53 Wis. 462; Goodall v. Thurman, 38 Tenn. (1 Head), 209; Cooley on Torts (1888), 73; White v. Thomas, 12 Ohio St. 312.
There are no authorities directly holding that she has such right of action. But it seems to us that the following authorities are almost in point: Howland v. Carson, 28 Ohio St. 625; Weiher v. Meyersham, 50 Mich. 602; ...
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