Sheahan v. Barry

• Decision Date: 06 May 1873
• Citation: 27 Mich. 217
• Court: Michigan Supreme Court
• Parties: Daniel Sheahan v. Mary Barry

27 Mich. 217

Daniel Sheahan v. Mary Barry

Supreme Court of Michigan

May 6, 1873

Heard April 25, 1873; April 29, 1873.

Error to Wayne Circuit.

Judgment affirmed, with costs.

Minock & Baker, George H. Prentis and Ashley Pond, for plaintiff in error.

Moore & Griffin and J. Logan Chipman, for defendant in error.

OPINION

Campbell J.

The suit below was brought for breach of promise and seduction and a verdict was rendered for damages.

It is now claimed that it was incompetent to allow evidence of seduction in aggravation of damages.

It was hardly questioned that the practice of allowing such testimony has been general, and the cases opposed to it are not numerous. It is claimed, however, that these cases stand on better reason, and that the proof should be excluded, first, because the parties are in pari delicto; and, secondly, because a separate action will lie for seduction. The authorities mainly relied on in aid of this defense are Burks v. Shain, 2 Bibb 341; Weaver v. Bachert, 2 Pa. 80; and Perkins v. Hersey, 1 R.I. 493.

We do not think the objection that the parties are equally in fault is legally tenable. The whole law concerning the action for seduction, and the criminal proceeding for the same offense would be inconsistent with this theory. The common sense of mankind has approved the rules which hold the seducer responsible. The proposition that he is rightly liable is one of those plain maxims which no amount of reasoning will vindicate more clearly than the natural sentiments of humanity; but it has always been recognized as a sound rule at common law, and the ingenious attempts of some judges to demonstrate its unsoundness have produced very little impression. Where popular opinion and legal usage have been so long in harmony, and the heavy verdicts generally given in aggravated cases show the profound conviction which men generally have of the evil deserts of such offenders, we do not feel called upon to search out any new arguments to maintain a doctrine which seems to us as reasonable as it is well settled by practice and decision.

The objection that the damages should not be allowed in an action for breach of promise rests on a different principle, but we think it is equally unfounded. The common-law practice is substantially uniform in allowing it. The seduction which is allowed to be proven in these cases is brought about in reliance upon the contract, and is itself in no very indirect way a breach of its implied conditions. Such an engagement brings the parties necessarily into very intimate and confidential relations, and the advantage taken of those relations by the seducer is as plain a breach of trust in all its essential features as any advantage gained by a trustee, or guardian, or confidential adviser, who cheats a confiding ward, or beneficiary, or client, into a losing bargain. It only differs from ordinary breaches of trust in being more heinous. A subsequent refusal to marry the person whose confidence had been thus deceived cannot fail to be aggravated in fact by the seduction. The contract is twice broken. The result of an ordinary breach of promise is the loss of the alliance and the mortification and pain consequent on the rejection. But in case of seduction there is added to this a loss of character, and social position, and not only deeper shame and sorrow, but a darkened future. All of these spring directly and naturally from the broken obligation. The contract involves protection and respect, as well as affection, and is violated by the seduction as it is by the refusal to marry. A subsequent marriage condones the first wrong; but a refusal to marry makes the seduction a very grievous element of injury, that cannot be lost sight of in any view of justice.

We think the common-law practice, which, so far as we know, has never before been questioned in this State, is based on sound principles. The recovery of damages by the injured woman was not at common law affected one way or the other by the right of her friends to sue for seduction. Although the damages they recovered for loss of service were allowed to be much larger than the value of wages could have been, they were nevertheless, in legal contemplation, the damages of the master or parent, and not of the woman. And if she was not in the employment or guardianship of any one, there could be no suit where there was no service; and unless the damages from seduction were considered in an action for breach of promise, they could not in such case be considered in any action on her behalf. No rule can be just which does not give the injured person the full damages resulting to herself from her injury; and this was done in an action for breach of promise, as it was not done for her in any other action.

But it is claimed that our statutes having provided that recovery can be had for seduction without any showing of service, the reason for the old rule has ceased. As the law now stands, the suit may be brought by the parent or guardian of the minor, or by any relative who may be selected and authorized by a woman of full age.--Comp. L. § 6195.

Assuming that these damages now belong to the woman, (a point on which no decision has yet been called for), as they certainly should, there may be many cases where no such relative can be found, or none who will assume the litigation. The rule of damages in one action ought not to vary with the possibilities of another, and if the damages are properly recoverable in one suit for breach of promise, they should be recoverable in all like cases.

There are two considerations in the way of holding the rule changed by our statute. If it gives a remedy to the woman herself, it should, on common-law principles, be regarded as a cumulative remedy,--so far as the seduction under promise of marriage is concerned,--rather than as superseding the old one. And it is better for all parties, and more consonant with public policy, that where justice can be fully accomplished in one suit, no one should be driven to begin more than one.

And where this rule is respected, there can be no danger of injustice by a second prosecution. The maxim that no one shall be twice vexed for the same cause of action will always prevent any plaintiff from suing twice for the same damages. If they can be recovered in this action under the pleadings, a recovery in this will necessarily be a bar to any future action. This subject was recently considered in the case of Leonard v. Pope, supra, p. 145.

We think there was no error in receiving evidence of the seduction and in allowing it to be considered in aggravation of damages. The authorities were so fully cited on both sides that we do not deem it necessary to repeat the citations. We regard the law as settled by the common-law practice, and as not changed by statute.

The remaining errors relied on upon the argument relate to the rulings of the circuit judge in his charges and refusals to charge.

Defendant below asked the court to charge that if it should be found the plaintiff had sexual intercourse with any other person than the defendant before the alleged breach of promise, and which was unknown to the defendant, then the jury, even if they should find for the plaintiff, should consider that fact in mitigation of damages, and the plaintiff should recover no more than mere nominal damages.

The court charged as requested, that it should be considered in mitigation, but refused to charge the damages must be merely nominal.

Upon the argument it was claimed that in such case there could be no recovery at all. And this is perhaps a more correct claim, for there can be very few, if any, actions of this nature where any thing that would in law preclude more than nominal damages, would not be a complete justification.

But we think the ruling was correct. There was evidence introduced attempting to prove plaintiff's incontinence with another about the time of the alleged seduction, and after the promise of marriage. There was also evidence from which it was claimed the jury might infer previous incontinence. It was not claimed that the engagement had been broken off on account of a discovery or suspicion of such misconduct.

Such misconduct after an engagement may very well be regarded as a violation of the woman's promise, and may generally, at least be an entire defense to an action for breach of promise. It is not necessary to decide in this case how far the protection should extend, according as the defendant himself may or may not be in fault. But the law is not so cruel as to deny to a woman who has gone astray the power to return to virtue. It has been held by this Court that the seduction of such a woman, who has retrieved her character, is legally possible, and legally punishable.--People v. Millspaugh, 11 Mich. 278. It has also been held that a marriage cannot be avoided on the ground of ante-nuptial incontinence.--Leavitt v. Leavitt, 13 Mich. 452. If a person who has promised marriage discovers that his proposed wife has been guilty previously of unchaste conduct, which has been concealed from him, he may, unquestionably, if his own conduct has been fair, break off the engagement and be legally justified. But where he breaks it off on some other insufficient ground, or for no reason at all, and where he has himself been guilty of seducing her under and by means of the marriage promise, we can see no reason why she should not have an action against him. No authority cited covers such a case, and we think it would not be proper to take it from the jury.

The court also refused a request that an instruction should be given to the jury that certain circumstances sworn to by plaintiff tended to show that she had previously had connection...