Phelin v. Kenderdine
| Decision Date | 21 March 1853 |
| Citation | 20 Pa. 354 |
| Parties | Phelin <I>versus</I> Kenderdine. |
| Court | Pennsylvania Supreme Court |
Sheppard and Mallery, for plaintiff in error.—It was contended that the judge erroneously admitted evidence of a promise of marriage, and told the jury that it was not a ground of recovery per se, but that it must egregiously enhance the damages. It was contended that a promise of marriage was a separate cause of action, an injury to the female, who alone can sue for its breach: 1 Spencer (N. J.) 229; 2 Barr 81, Weaver v. Bachert; 1 Johns. Rep. 299; 1 Jones 316; Peake's Ev. 335; 3 Camp. 519; 3 Wilson 18; 2 Wend. 460; 5 Denio 368.
Ninth assignment. The Court charged that it would be unfair to draw any inference from the refusal of two witnesses to answer the question whether they did not know that the daughter was not a virtuous woman. It was observed that the witness is the party to decide whether the answer will criminate him, and that his decision is under oath and at the peril of perjury. It is not contended that the refusal to answer is an admission of the fact implied in the question, but that it is a fact in the case which the jury have a right to consider: 16 Ves. 69; Note to 1 R. & M. 382; 21 E C. L. 466; Starkie on Ev. 197; Best on Ev. 146 (66 Law Lib).
The remark that the acts of impropriety, proved on the part of defendant, indicated a want of refinement but not of virtue, was improper. The matter should have been left to the jury.
The question proposed by plaintiff's counsel, "What was the character of Phelin's attentions; were they those of a suitor?" was a leading question, and requiring an expression of opinion on a body of facts. It is only in cases where the inference requires the judgment of persons of peculiar skill and knowledge on the particular subject, that their opinion and judgment is admissible: 1 Stark. Ev. 69.
The defendant was improperly prevented from showing the date of Mrs. Ham's marriage and the birth of her first child. She was the chief witness. She fixed no dates, and the inquiry as to the time of her marriage and the birth of her child was material and not collateral.
The Court erred in its answer to the first point, or rather, the latter part of it was left unanswered. From the answer the jury were led to infer that the death and its circumstances were to be taken into account in estimating damages.
It was submitted that the opinion of the judge discharging the motion for a new trial was erroneous in the principles of law which it announced, and that this Court, under the Act of Assembly, has power to administer redress when a new trial is refused at Nisi Prius on a matter of law.
McCall and Brown, for defendant in error.—It was not error to admit evidence of a promise of marriage. Seduction is not admissible in evidence in an action for a breach of a promise of marriage (2 Barr 80), because, as the female cannot sustain an action for seduction on the ground of volenti non fit injuria, she cannot make her seduction, indirectly, a ground of recovery.
It should be considered that the daughter died before this action was brought. The loss of service is a mere fiction: the real injury is not the result of mere pecuniary loss, but flows from the wrong done to the plaintiff's social position and to him as a parent: 2 Harris 282, Eichar v. Kistler. Therefore, damages may be recovered commensurate with the injury, and where the case called for it, by way of example to others: 3 W. & Ser. 416; 3 Pa. Rep. 49; 3 Scam. 372. By the Act of 19th April, 1843, seduction, under promise of marriage, is a criminal offence, liable to severe punishment. Therefore, the parent having a right to compensation for the injury to his feelings and honor, has a right to show that the seducer addressed his daughter under honorable pretences — thus aggravating the injury. It was also evidence to show that the father had not been neglectful or remiss in his duty, as his connivance in the seduction would bar his action for damages: 3 Wilson 18; 3 Campbell 519, Dodd v. Norris; 2 Starkie on Ev. 989; Saunders on Pl. and Ev. 857; 5 Price 641. The distinction is, whether the actual promise of marriage is relied on as a prominent part of the case, or is merely collateral to the main object of the action, as to vindicate the character of the female when it is assailed. The New York authorities cited merely go to the point that, in an action by the father for debauching his daughter, the latter cannot be a witness to prove the promise of marriage, in order to increase the damages, as she herself has a right of action. In the present case the daughter was dead before the suit was brought.
2d assignment. The question as to the character of defendant's attentions was not objected to as leading. But it was not leading; it was calculated only to draw the mind of the witness to the subject of inquiry, which is allowable.
3d assignment. The dates of Mrs. Ham's marriage and the birth of her first child were testified to on cross-examination, and being irrelevant to the issue, it was not admissible for the defendant to disprove her testimony on those points: 4 Watts 51.
4th. The case of Eichar v. Kistler, 2 Harris 282, was cited.
5th to 8th. The expression of opinion of a judge as to the weight of evidence is not the subject of a writ of error: 10 Barr 296; 4 Harris 269.
9th assignment. No inference was to be drawn from the refusal of the two witnesses to answer. Were it otherwise, witnesses, by refusing to answer, avoid the commission of perjury, and yet produce the effects of false swearing. HOLROYD, J., in the case of The King v. Watson, 2 Stark. N. P. C. 158, that if a question be proposed to a witness and he declines to answer it, his not answering is not to have any effect upon the jury. Also Lord ELDON in 16 Ves. 64. The privilege of refusing to answer is for the benefit of the witness. The protection should not be extended to him to the injury of the party.
As to the answer to the first point. The judge was not asked to charge that under no circumstance could the death of the plaintiff's daughter be considered by the jury in the estimate of damages; but its exclusion from that estimate was coupled with the primary fact that the death was not proved to be the result of the defendant's act, and therefore not to be considered in the estimate of damage.
If damages in this action are properly given for loss of society and service, it is not perceived why the death of the daughter should not be considered in the estimate. If the judge had answered that under no circumstances could the death of the daughter be attributable to the misconduct of the defendant, he would have committed an error. It was his duty to leave the question to the jury whether the loss of service sustained by the plaintiff, and produced by the defendant, was not attributable in all its relations to the act of the defendant.
The opinion of the Court was delivered, March 21, by LEWIS, J.
The distinguished advocate of the principle, that damages in actions of tort are, in all cases, to be limited to mere compensation for the injury sustained by the plaintiff, admits that the doctrine of exemplary damages "finds more countenance from the bench in Pennsylvania than in any other quarter:" 2 Greenl., § 253, note. A long course of practice, evidenced by numerous decisions, reported and unreported, has settled the doctrine in this state so firmly that it would be a waste of time to discuss the question. Nor can it be said that our state Courts are singular in this respect. We do but adopt the language and the doctrine of the Supreme Court of the United States, when we declare that "it is a well-established principle of the common law, that, in actions of trespass, and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff:" Day v. Woodworth et al., 13 Howard's U. S. Rep. 371.
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