Stowers v. Singer

• Decision Date: 30 May 1902
• Citation: 68 S.W. 637,113 Ky. 584
• Parties: STOWERS v. SINGER. [1]
• Court: Kentucky Court of Appeals

68 S.W. 637

113 Ky. 584

STOWERS v. SINGER. ^[1]

Court of Appeals of Kentucky.

May 30, 1902

"To be officially reported."

Petition for rehearing. Granted.

DU RELLE, J.

This is an action under section 2, Ky. St., for the seduction of appellant's daughter, who was about 20 years of age at the date of the alleged seduction. It was claimed that the seduction was accomplished by appellee while he was the principal of the colored public school in Covington, and while the girl was a pupil therein. There was sharp conflict of testimony. The jury found for the defendant.

The first ground urged for reversal is error in the instructions. The first instruction given is a literal copy of the first instruction offered on behalf of appellant, except that at the conclusion the jury was instructed that it might "in its discretion, governed by the proof, award a further sum by way of punitive damages, if the jury finds for plaintiff, not exceeding in all the sum of $10,000." The instruction seems to us correct. At all events, appellant cannot be heard to complain of it, as it was given in the exact language of the instruction asked for by him. The court properly refused instruction "b" offered by appellant upon the subject of exemplary damages. That instruction requires the jury, in order to award exemplary damages, to believe that the seduction and carnal knowledge of appellant's daughter "were willfully or maliciously accomplished by defendant, or knowingly wantonly, or recklessly persisted in by him, to the great danger of the impregnation of said daughter," etc. Malice is not required to authorize exemplary damages in a case of seduction, and it would seem that the act of seduction was necessarily willful. The second instruction given was: "Unless the jury believe as set out in instruction No. 1, the jury should find a verdict for defendant." It is contended seriously that this was prejudicial error, as instructing the jury to find for defendant if they did not believe punitive damages should be given. We cannot believe that a jury composed, as we are bound to assume the trial jury in this case was composed, of persons of ordinary intelligence, could have been thus misled by this instruction. It is further contended that it was error to refuse the instruction "c" offered by appellant, as follows: "The court instructs the jury that 'seduction,' as mentioned in the instruction of the court, is the act of a man in inducing a woman to commit unlawful sexual intercourse with him." This is the definition of the word given in Bouvier, and it is contended that its omission was prejudicial; that the ordinary understanding of "seduction" is the first intercourse of a male with a female; and therefore the first instruction given required the jury to find for the defendant, though they believed he had carnally known the plaintiff's daughter, if they believed some other person had had intercourse with her before him. Upon the question whether an instruction defining "seduction" should be given in a case of this character we are cited to no authority by counsel, and there seems to be no Kentucky case upon the subject. 19 Enc. Pl. & Prac. p. 412, citing Robinson v. Powers, 129 Ind. 480, 28 N.E. 1112, and Breon v. Henkle, 14 Or. 494, 13 P. 289, lays down the rule that "the court should instruct the jury on the definition of 'seduction,' the constituent elements thereof, what may be considered by them, and what must be proved in order to authorize a recovery." It is evident that the practice as to instructions in those states is somewhat different from that which prevails with us. But it may be conceded that there should be some definition given to the word, and upon a reconsideration of the case we have reached the conclusion that the instruction given on behalf of appellant that, if the jury believes that appellee "seduced, debauched, and carnally knew plaintiff's daughter, Estella Stowers, and that by reason or means of such seduction and carnal knowledge by defendant of said daughter said daughter became pregnant," etc., they should find for appellant, is not a sufficient definition of the word. Webster's International Dictionary defines this word as: "The act of seducing; incitement to wrongdoing specifically, the offense of inducing a woman to consent to unlawful sexual intercourse, by enticements which overcome her scruples; the wrong or crime of persuading a woman to surrender her chastity." The last meaning above given is the meaning usually attached to the word in common use. In common parlance the word imports absolute chastity upon the part of the...