Patterson v. Hayden

• Decision Date: 15 January 1889
• Citation: 17 Or. 238,21 P. 129
• Parties: PATTERSON v. HAYDEN.
• Court: Oregon Supreme Court

21 P. 129

17 Or. 238

PATTERSON v. HAYDEN.

Supreme Court of Oregon

January 15, 1889

Appeal from circuit court, Marion county.

Action by John Patterson against Clell Hayden for the seduction of his infant daughter, Stella Patterson. Verdict and judgment for plaintiff, and defendant appeals.

(Syllabus by the Court.)

A woman may be unchaste, and then reform and lead a virtuous life and if she is then seduced her seduction ought to be visited with such damages as a jury would think, under all the circumstances, the defendant ought to pay; but to justify a recovery there must be a reformation.

The word "seduction," when applied to the conduct of a man towards a woman, means the use of some influence artifice, promise, or means on his part by which he induces the woman to surrender her chastity and virtue to his embraces. Therefore, held, that criminal indulgence with a woman who was at the time leading a lewd and lascivious life does not constitute seduction.

It is the right of the jury, and not the court, to determine the effect of evidence, unless in particular cases, where it is declared by law.

N.B Knight and McCain & Hurley, for appellant.

G.H. Burnett and E.A. Downing, for respondent.

STRAHAN, J.

This is an action brought by the plaintiff against the defendant to recover damages for the seduction of his minor daughter. The plaintiff had judgment in the court below for the sum of $3,633, from which the defendant has appealed to this court. The only questions presented for our consideration on this appeal are the alleged errors of the court in giving and refusing instructions. The appellant's counsel excepted severally to one instruction given by the court, and to its refusal to give those asked on behalf of the defendant. The defendant gave evidence tending to prove that for a long time prior to the alleged seduction, and continuing up to that event, the plaintiff's daughter resided with her parents in the city of Salem; that she was in the habit of meeting several young men of her acquaintance, including the defendant, out in the streets and avenues of the city, in the nighttime, and alone; that these meetings were as late as 9 and 10 o'clock, or later; that on these occasions the parties did not go to the house of plaintiff's parents for her, but that she came out to meet them. The testimony of Stella Patterson tended to prove that the first sexual intercourse between herself and the defendant took place on the 4th of July; and, according to Dr. Holmes' evidence, when Stella applied to him for treatment, in the month of August following, she was afflicted with chronic gonorrhea.

The charges excepted to, and two of the requests, are so closely connected that they will be considered together. The portion of the charge excepted to constitutes a part only of an entire sentence in the charge of the court. The complete sentence is as follows: "Evidence of a prior unchastity of the plaintiff's daughter is competent both to show that the sexual intercourse was without enticement, artifice, persuasion, or solicitation which overcome her reluctance and scruples, and also in mitigation of damages." And then comes the part excepted to: "But proof of former unchastity is of itself not a defense or bar to any action of this kind." The following are two of the defendant's requests to charge: "(1) Before you can find a verdict for the plaintiff in this case, you must first find from the evidence that the plaintiff's daughter was at and prior to the alleged seduction a chaste female, and that the defendant seduced her, and had illegal sexual intercourse with her." "(5) Proof that the defendant and plaintiff's daughter had illicit sexual intercourse with each other does not of itself show that the plaintiff's daughter was seduced by the defendant; but before you can find such seduction you must first find from the evidence that the plaintiff's daughter was chaste, and that she was overcome by the defendant by the use of some artifice or promise which, by reason of her relations with and confidence in the defendant, she, although a moral and chaste female, could not resist."

1. Under the particular facts disclosed by this record that part of the charge of the court which was excepted to had a tendency to mislead the jury. They might have well understood from that language that, no difference to what extent or how often the plaintiff's daughter may have engaged in acts of lewdness and lasciviousness with miscellaneous men, continuing up to the very event complained of, still her seduction by the defendant was possible, and the jury could only consider such acts in mitigation and to corroborate the defendant's denial. This, I think, for reasons presently to be noticed, was going too far. There is no doubt that a woman may be guilty of unchastity, and then reform and lead a virtuous life. In such case her seduction ought to be visited with such damages as a jury would think, in view of all the facts and circumstances, the defendant ought to pay; but to justify a recovery there must be a reformation. In other words, the female must have honestly abandoned and ceased her lewd conduct for a sufficient length of time before the act complained of to induce the jury, as reasonable men, to believe the reformation was real, and not feigned. If the court had added to the charge a proviso to the effect that for a reasonable time before the alleged seduction the plaintiff's daughter had abandoned and ceased her unchastity, if she had been unchaste, so as to satisfy the jury at the time of the alleged seduction she was leading a virtuous life, such instruction would have left the jury free to have instituted the necessary inquiry on that subject.

2. By the two requests which were refused counsel for appellant seek to present the question whether or not a woman, who is without virtue, and unchaste, can be the subject of seduction, within the meaning of the Code. The action for the injury and wrong done to a father, mother, or guardian by the seduction of a daughter or ward is given by section 35, Hill Code, as follows: "Sec. 35. A father, or, in case of death or desertion of his family, the mother, may maintain an action as plaintiff for the seduction of a daughter, and the guardian for the seduction of a ward, though the daughter or ward be not living with or in the service of the plaintiff at the time of the seduction, or afterwards, and there be no loss of service." This section has entirely changed the character of the action. Under the law as it stood formerly loss of service was the gist of the action, without which it could not be sustained. The value of the services rendered was immaterial, but some service or a legal duty to render the same must have been alleged and proven, and then the jury was directed to assess damages for the loss of such service, as well as for the dishonor brought upon the plaintiff's family by reason of the seduction of his daughter, etc., but the damages in fact were assessed for the seduction. This anomalous state of the law was sought to be remedied by the section above quoted, so that there need be now no loss of service by the parent or guardian or liability to render service by the daughter or ward. Special damages, such as expenses incurred for medical treatment, and the like, are still recoverable, but they must be specially alleged in the complaint. But the question which presents...