Riddle v. McGinnrs.

• Decision Date: 02 October 1888
• Citation: 22 W.Va. 253
• Parties: Riddle v. McGinnrs.
• Court: West Virginia Supreme Court

22 W.Va. 253

Riddle

v.McGinnrs.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 1883

Decided October 2, 1888.

1. In an action by a father, or by one in loco parentis for the seduction of a daughter it is no longer necessary to allege or prove, the loss of service of the female, or the value of such service section 1 of chapter 103 of Code of West Virginia having changed the common law rule in such cases. (p. 271.)

2. In such an action it is still necessary to allege and prove that the relation of master and servant existed between the plaintiff and the female at the time of the commission: of the wrongful act, (p. 272.)

3. In such a case where the daughter is under the age of twenty-one years, and was so at the time of the seduction, and the father then was, and still is entitled to her attentions and services the law conclusively presumes that the relation of master and servant exists between them, although at the time of such seduction she may be in the actual service of another, under a contract made by herself securing to her the compensation for such service, (p. 274.)

4. On the trial of an action brought by a father for the seduction of his daughter, evidence of the pecuniary condition of the defendant is admissible to show the extent of the injury caused to the plaintiff by the wrongful act of the defendant, (p. 278.)

5. In an action by a father for the seduction of his daughter, a count in the declaration which avers, that "she is under the age of twenty-one years, and unmarried, and was so at the lime of the seduction, and that the plaintiff then was, and still is entitled to her attentions and services" sufficient y avers that the relation of master and servant exists between the father and daughter。 (p. 277.)

6. The statute, section 1, chapter 103 of Code of West Virginia, dispenses with the allegation and proof of loss of service of the female by reason of the wrongful act of the defendant, but does not alter the rule as to the commencement of the action by the father; and when the daughter at the time of the seduction, lived away from the father's house, and returned and was confined there and nursed the statute of imitations will only begin to run from that time. (p. 275.)

7. If the defendant in such a case would rely upon the statute of limitations of one year, he must plead it before or at the trial; and he cannot rely on it, and raise the question upon instructions to the jury. (p. 275.)

8. In such an action the jury, in estimating the damages sustained by the plaintiff, may take into consideration the mental anguish, the dishonor and shame endured by the plaintiff, as well as the actual expenses incurred by him, by reason of the wrongful act of the defendant。 (p. 281.)

9. The verdict of a jury in such a case in favor of the plaintiff will not be set aside on the ground that the damages are excessive, unless they are so enormous, as to furnish evidence of partiality, passion, corruption or prejudice on the part of the jury. (p. 280.)

10. A motion for a continuance is addressed to the sound discretion of the court; and although the applicant may by his own oath, show a prima facie case entitling him to a continuance on account of the absence of a material witness, yet if from the circumstances of the case, or from the statements of the applicant the court is satisfied that the real purpose of the motion is to evade, or delay the trial, and not to prepare for it, the motion ought to be overruled. (p. 208.)

11. In such a case, if a party moves to continue the cause on account of the absence of a material witness the court may, at the first calling of the cause for trial, require the party to state the facts he expects to prove by such witness and if they be such, as could not affect the result of the trial, the motion for a continuance should be overruled. (p. 209.)

12. A case in which a verdict of a jury rendered in favor of the father

for three thousand dollars damages, for the seduction of his infant daughter, while living out at service, with the defendant, was upheld by the court. (p. 282.)

The facts of the ease are fully stated in the opinion of the Court.

R. S. Blair for plaintiff in error.

P. W. Morris for defendant in error.

Woods, Judge:

This was an action on the case in the circuit court of Ritchie county, commenced on the 24th of April, 1882, by Eli Riddle against Benjamin McGinnis claiming five thousand dollars damages for the alleged seduction by him, of the plaintiff's daughter Rosa Alice Riddle. Process was returned executed, and declaration filed and conditional judgment entered therein at the May rules, and at the June rules, 1882, conditional judgment was confirmed and a writ of en- quiry awarded to inquire of the plaintiff' amages. At a circuit court held and continued for the county on the 29th of June, 1882, the defendant appear and demurred to the said declaration and to each count ereof. The court sustained said demurrer to the first, but overruled it as to the second count, which declaration is in these words and figures:

"Eli Riddle complains of Benjamin McGinnis, who has been duly summoned, &c, of a plea of trespass on the case, for that the said Benjamin McGinnis heretofore, to-wit, on the 1st day of January, 1881, at the county aforesaid, seduced, and at divers other times between that day and the commencement of this suit, debauched and carnally knew Rosa Alice Riddle, who was then and still is under the age of twenty-one years and unmarried, and who at the time of such seduction was a virtuous and innocent daughter of the plaintiff, and the plaintiff then was and still is entitled to the comfort and benefit of her society, attention and services, and by reason of said wrongful act of defendant, he, plaintiff has sustained great loss and damages, to-wit, five thousand dollars, and therefore he sues, &c.

"Second count And for that, whereas, the said Benjamin McGinnis, contriving and unjustly and wrongly intending to injure the said Eli Riddle and to deprive him of the service and assistance of Rosa Alice Riddle, the daughter and servant of him, the said Eli Riddle, to-wit, on the day of January, 1881, at the county aforesaid, and on divers other days and times between that day and the day of commencing this suit, debauched and carnally knew said Rosa Alice Riddle, then and there, and from thence for a long space of time, towit, up to the commencement of this suit, being the daughter and servant of him, the said Eli Riddle, whereby said Rosa Alice Riddle became pregnant and sick with child, and so remained and continued for a long space of time, to-wit, for the space of nine months then next following, at the expiration whereof, to-wit, on the 9th day of April, 1882, she, the said Rosa Alice Riddle, was delivered of the child with which she was so pregnant as aforesaid, to-wit, at the county aforesaid. By means of which said several premises, she, the said Rosa Alice Riddle, for a long space of time, to-wit, from the day and vear first above mentioned hitherto, became and was unable to do or perform the necessary affairs and business of Eli Riddle, so being her father and master as aforesaid, and thereby he, said Eli Riddle, during all that time lost and was deprived of the service of his said daughter and servant, towit, at the county aforesaid; and also by means of the said several premises, he, the said Eli Riddle, was forced and obliged to and did necessarily pay, lay out and expend divers sums of money, amounting in the whole to a large sum of money, to-wit, the sum of fifty dollars, in and about the nursing and taking care of said Rosa Alice Riddle, his said daughter and servant, and in and about the delivery of the said child, at the county aforesaid, to the damage of the said Eli Riddle five thousand dollars. And therefore he brings his suit, &c."

The defendant then pleaded not guilty, and issue was thereon joined, but no other plea was tendered or filed. The defendant on the 20th of June, 1882, when the case was called for trial, moved the court to continue the cause for the reasons stated in his first bill of exceptions, which motion the court overruled, and the defendant excepted and filed his first bill of exceptions in the following words:

"Be it remembered that upon the calling of this cause the defendant in person and by his attorney Thomas E. Davis appeared in open court and moved the court for a continuance of this cause, and assigns the following grounds for such continuance:

"First. This suit was instituted against the defendant on the 24th day of April, 1882, and the process served upon him the following day, to-wit, the 25th day of April, 1882, and returnable to May rules, 1882, and that from the time of the service of the process and the return thereof, the defendant had not sufficient time to prepare himself for the trial of this cause; that within a few days after the services of said process, he engaged the services of one Thomas E. Davis, attorney practicing in this court, to defend him, and paid him a retainer's fee therefor, and relied upon him to defend him in this suit.

"Secondly. That it was further shown to the court by the defendant on his oath, who had been introduced for the purpose of showing cause for a continuance, that Ellen Robinson was a material witness in behalf, and that he was informed and believed that she would testify to the following facts, which were required by the court to be reduced to writing by the defendant, and without said evidence he could not safely go to trial:

"Benjamin McGinnis, being duly sworn to answer such questions as may be asked him by the court cr bar, deposed and said in open court on June 29, 1882:

" I can show by Ellen Robinson that she resided at my house at the time the child born to Rosa Alice Riddle should have been conceived, to-wit, nine months before Alice Riddle was delivered of child on the day of, 1882; that

at that time the said Alice was at a number of times in...