Watson v. Watson

• Citation: 18 N.W. 605,53 Mich. 168
• Court: Supreme Court of Michigan
• Decision Date: 06 March 1884
• Parties: WATSON v. WATSON.

18 N.W. 605

53 Mich. 168

WATSON v. WATSON.

Supreme Court of Michigan

March 6, 1884

Where the question is merely as to the order of proof, it is addressed to the discretion of the trial judge.

In an action for seduction, evidence of acts of familiarity subsequent to the offense charged is admissible as tending to show a state of things as set up by the plaintiff, and to render more probable the story of continuous intercourse afterwards testified to.

Counsel may comment on a failure of the plaintiff to make immediate complaint when the wrong was first committed; but no rule of law could be laid down to benefit the defense. In a case of rape a virtuous woman is most likely to make an immediate outcry, but in case of seduction she is more likely to make disclosure only when concealment is no longer possible.

A conditional gift of money by a man to an adopted daughter whom he has seduced naturally indicates crime only to a mind already convinced, and is consistent with innocent relations between the parties. Evidence from which such opposite deductions may be drawn, according the prepossessions, may work great injustice, and it is error to admit it.

In an action for breach of promise of marriage the wealth of the defendant may be taken into account; but in seduction the object is the compensation of the wrong to the plaintiff; and as the defendant may not show his poverty in mitigation of damages, his wealth should not be shown, and liberty given the jury to punish the defendant besides compensating the plaintiff.

Evidence of previous chaste character on the part of the defendant is properly excluded. Seduction might result more easily through such a party than through a notorious character.

Where the party who would be the proper one to bring an action for seduction on the part of a minor, is the one who seduces her her right of action extends for six years from her attainment of her majority.

Error to Kent.

John T. Holmes and Fred. A. Maynard, for plaintiff.

Godwin & Earle, for defendant and appellant.

COOLEY C.J.

This is an action on the case to recover damages for alleged seduction. The plaintiff had been living in the family of the defendant as his adopted daughter from 1872 to 1881, being when she went there 12 years of age. She claims to have been seduced by him in the summer of 1875. She submitted to him according to her testimony, unwillingly, and under the influence of the control which he had obtained over her by means of the adopted relation. A child was born to her in July, 1881, which she says was the fruit of their intercourse. This suit was begun October 31, 1881. The defendant denies that sexual intercourse ever took place between him and the plaintiff. The case has twice before been in this court. See 47 Mich. 428; [S.C. 11 N.W. 227;] 49 Mich 540; [S.C. 14 N.W. 489.] On the trial on the merits, after the preliminary questions had been determined in this court, the plaintiff recovered judgment for $4,000 damages.

Before the plaintiff had given evidence of the seduction she was permitted to prove acts of improper familiarity on the part of the defendant occurring in 1878. This was objected to as being premature in that stage of the trial, and also as having no tendency to prove a previous seduction. So far as the question related to the order of proof, we think it was addressed to the discretion of the trial judge. The other branch of the objection was untenable also. It is no doubt true, as has been urged, that such acts tend rather to lend probability to the charge of subsequent intercourse than to prove a previous seduction; yet, as in this case, the illicit intercourse is alleged to have been kept up for some time after 1878, and it was a part of the plaintiff's case that she was begotten with child by the defendant in 1880, the acts of familiarity which were testified to in 1878 were not without importance. They tended to show an existing condition of things such as the plaintiff had set up, and rendered more probable the story of continuous intercourse, to which she afterwards testified.

It was urged by the defendant that on the evidence of the plaintiff the action could not be maintained, because, as she claimed, the intercourse was accomplished by force, and was therefore not seduction, but rape. But the plaintiff's evidence did not make out a rape; it made out only that her will was overcome by the defendant's superior will, which had controlling influence because of the parental relation which he had assumed towards her. If the case were in fact one of rape, there would be very good authority for holding that the action might be sustained, notwithstanding the fact that the intercourse was accomplished by force. Kennedy v. Shea, 110 Mass. 147; S.C. 14 Amer.Rep. 584; Damon v. Moore, 5 Lans. 454; Lavery v. Crooke, 52 Wis. 612; [S.C. 9 N.W. 599;] S.C. 38 Amer.Rep. 768. It was also urged that suspicion was cast upon the story of the plaintiff by the fact that she did not make immediate complaint when the wrong was first committed; and instructions to the jury were requested to that effect. We think there was no error in refusing them. Counsel was at liberty to comment upon the fact if he deemed it advisable to do so, and perhaps the judge also; but the judge could not lay down any rule of law in respect to it which would benefit the defense. Obviously, as respects immediate complaint, rape and seduction present very different considerations. When the truth of a charge is being investigated, in the light of the conduct of parties concerned, we are to consider what the behavior would naturally have been had the charge been true; and while all would probably agree that a virtuous woman who had been ravished would be likely to make immediate outcry, or disclosure, very different conduct would be looked for in case of seduction. The woman seduced is more likely to reveal her shame only when concealment is no longer possible, especially where the seducer holds towards her some family relation.

One of the assignments of error concerns the evidence given by the plaintiff, that at one time, not very distinctly specified, but which would seem to have been in the winter before the birth of the child, the defendant informed her that he had concealed $400 in a specified place, which she was to have in case he should die before her, and in that event he desired her to take it, but to let no one know about it. It does not appear from the evidence that this conditional gift was the result of any previous understanding or promise, or that it had any connection whatever with the previous or continuing sexual intercourse. Neither was it shown that the defendant then knew the plaintiff was in the family way. If we believe the plaintiff's charge, we should naturally attribute such a gift by the defendant to a desire to make some compensation for the wrong done. If we believe the defendant truthful, the conditional donation may, on the other hand, be referred to very proper sentiments. The plaintiff had, at that time, been for eight years a member of defendant's family, occupying the place of a child, though not formally adopted. If she survived him the law made no provision for her as a child, and this small gift he might very well make, and probably ought to make, if their relations had been perfectly innocent. The secrecy in the case might seem to require explanation; but there might be very good reasons for making such a gift in such a way that it could not become the subject of possible family contention after his death. The act of making it was therefore apparently as consistent with good motives and honorable conduct as with a consciousness of crime; and it naturally indicated crime only to a mind already convinced. Conduct from which such opposite deductions are not only admissible, but would be natural, according to the prepossessions we may have respecting the person, ought not to be proved. The very reception of the evidence as tending to prove guilt casts a suspicion upon the act sworn to which it cannot be seen even probably to deserve, and it may, consequently, work great injustice. The exception is well taken.

When the plaintiff was giving evidence on her own behalf, she was asked what the defendant had told her respecting his pecuniary circumstances. Objection was made by the question, but she was allowed to answer, and she stated that he had told her he was worth $20,000. The avowed purpose of giving this evidence was to swell the damages. In the instruction to the jury the trial judge did not pointedly call their attention to it, but he instructed them that, in awarding damages for the shame and ignominy which the plaintiff has suffered by reason of the wrongful act of the defendant, they might award to the plaintiff such sum as their fair and deliberate judgment and discretion should dictate, having regard to all the circumstances of the case--the seduction, and relation of the parties before and at the time of the alleged wrong to the plaintiff. The jury must, therefore, have understood they were at liberty to give damages with some regard to the amount of the defendant's pecuniary means.

If this were an action for breach of promise of marriage the wealth of the defendant would have been a fair subject of inquiry but this is for the obvious reason that the plaintiff's loss in such a case has direct relation to the means of the man she was to marry. Miller v. Kosieo, 31 Mich. 475; Bennett v. Beam, 42 Mich. 346; [S.C. 4 N.W. 8;] S.C. 36 Amer.Rep. 442; Kelly v. Riley, 106 Mass. 339; S.C. 8 Amer.Rep. 336; Kniffin v. McConnell, 30 N.Y. 285. In several cases it has been held that similar evidence is admissible in actions brought for malicious injuries to plaintiff's reputation. ...