Rabeke v. Baer

• Citation: 73 N.W. 242,115 Mich. 328
• Court: Supreme Court of Michigan
• Decision Date: 15 December 1897
• Parties: RABEKE v. BAER.

73 N.W. 242

115 Mich. 328

RABEKE v. BAER.

Supreme Court of Michigan

December 15, 1897

Error to circuit court, St. Clair county; James B. Eldredge, Judge.

Action by Emelie Roll Rabeke against Charles Baer for seduction. Judgment for plaintiff. Reversed.

Stevens & Graham, for appellant.

Carl A Wagner (O'Brien J. Atkinson and Seward L. Merriam, of counsel), for appellee.

MOORE J.

This is an action of seduction, in which plaintiff claims that she was seduced by defendant under a promise of marriage. She secured a judgment, from which an appeal is taken by defendant. It is the claim of the plaintiff that when she was 18 years old, in June, 1890, she entered into the employ of the defendant. Shortly after her employment began, the wife of defendant died. It is claimed by plaintiff that soon after this defendant made improper proposals to her, and for that reason she left his employ. She further claims that, later defendant saw her parents, and stated to them that he wanted the plaintiff to come back to work, and that he wanted to make her his wife. She testified that the last of September or early in October, 1890, she again commenced working for the defendant, and that soon afterwards he came to her and promised to marry her as soon as his wife had been dead sufficiently long, and accomplished her seduction, and that he had intercourse with her frequently for several months thereafter. Before plaintiff was allowed to testify very much, counsel for defendant was allowed to question the plaintiff, when he elicited from her the fact that in April, 1891, she married one Rabeke, who lived with her until August, 1891, and that plaintiff gave birth to a child in September, 1891. Defendant denied that he ever had intercourse with plaintiff, and it is the claim of the defense that Rabeke was the father of the child, and that there never had been any seduction. After the fact had been elicited of the marriage of plaintiff and the birth of the child, counsel for defendant insisted that, as plaintiff was a married woman, she was not competent as a witness in this proceeding; and it was also claimed that it was error in the court to allow her to testify that the man she afterwards married had no intercourse with her until in February, for the reason that the effect of her testimony was to bastardize issue born in wedlock, and that, for reasons of morality and public policy, such testimony was incompetent. It is urged by counsel for the plaintiff that the testimony in relation to nonintercourse between plaintiff and her husband was not drawn out by plaintiff, and that defendant cannot complain. We think counsel in error, as the record shows that plaintiff, when examined by her counsel, testified "During the month of October, I did not know August Rabeke, the man I afterwards married. I got acquainted with him, so far as I remember, in February, 1891." It was the claim of the defendant that, instead of seducing plaintiff, he had no intercourse with her, and that Rabeke was the father of the child. It is evident that if plaintiff did not know Rabeke in October, 1890, and he did not get acquainted with her until in February, 1891, he could not have had intercourse with her in October, 1890; and the effect of this testimony in relation to intercourse was not different from what it would have been if witness had testified directly to the fact of nonintercourse. It is material, then, to inquire, was it competent for the wife to testify to the nonintercourse of the man who afterwards became her husband, in view of the fact that her child was born in wedlock, and the effect of her testimony would be to illegitimatize her offspring? Plaintiff's claim is that the principal question in the controversy is that of seduction, and the birth of the child is an incident that goes to the measure of damages, simply, and that it was competent for the wife to testify as she did. In Jones, Ev. � 96, the rule is stated as follows: "It is well settled on grounds of public policy, affecting the children born during marriage, as well as the parties themselves, that the presumption of legitimacy, as to children born in lawful wedlock, cannot be rebutted by the testimony of the husband or the wife to the effect that sexual intercourse has or has not taken place between them. *** The rule not only excludes direct testimony concerning such intercourse, but all testimony of such husband or wife which has a tendency to prove or disprove legitimacy. For example, it was held incompetent to ask the husband, for the purpose of proving nonaccess, whether at a given time he did not live a hundred miles away from his wife. *** The rule rests, not only on the ground that it tends to prevent family dissension, but on broad grounds of public policy. *** Nor does it depend upon...