Woodward v. Anderson
| Decision Date | 11 September 1873 |
| Parties | Woodward v. Anderson. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BATH CIRCUIT COURT.
VAN B. YOUNG, JOHNSON & BROWN, NESBITT & HOLT, For Appellant.
REID & STONE, APPERSON & REID, For Appellee.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
The appellee, Elizabeth Anderson, filed her petition in the Bath Circuit Court on the 12th of February, 1872, against the appellant, William Woodward, containing two separate counts, in which it is alleged that the appellant (the defendant), "contriving and wrongfully and unjustly intending to injure the plaintiff, did, in the years 1865 and 1871, by artificial persuasions and threats, unlawfully debauch, seduce, and carnally know the plaintiff, she being a single woman," etc.; "that she was of weak and imbecile mind, and gave birth to two children by reason of these unlawful acts on the part of the defendant." A trial was had, resulting in a verdict against the defendant for one thousand dollars in damages, and a judgment rendered, from which this appeal is prosecuted. The petition contains every essential allegation requisite in an action for seduction, and the important question raised by a demurrer to each count in the petition is, can the plaintiff maintain the action?
At common law actions for seduction are based solely upon the relation of master and servant, and no one but those entitled to the services of the female could maintain it. The action is usually instituted by the parent, and the allegation and proof of the loss of service was at common law indispensable to a recovery. Slight loss of service has been held sufficient, and the rule has been so far modified by the recent decisions of this country and in England as to authorize the parent to maintain the action when he has the right to the service, although no acts of service are proven. (Hewitt v. Prime, 21 Wend. 79.) These changes of the rule, however, have never gone to the extent of authorizing any other to bring the action than the one entitled to the service. The right of action has not been changed, but only the proof of the loss of service dispensed with. No precedent can be found, or at least after diligent search this court has been unable to find a single case, where the female seduced has in her own name maintained such an action. In Christian's Blackstone (book 3, chap. 8, note 14a) it is said, "In no case whatever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury she has sustained from the seducer of her virtue." In the case of Hamilton v. Lomax (26 Barb.), where the action was instituted by the female, it was held "that the only mode in which the action for seduction can be maintained is by bringing it in the name of the person entitled to the services. This principle has always been recognized without an exception, unless where changed by statutory enactment. "The female, being particeps criminis, can in no event maintain an action for her own seduction." (Newman's Practice, 426.)
It is contended for the appellee that the action may be maintained by reason of the provisions of the second section of the Revised Statutes, volume 1, chapter 1, and the dicta of this court in the opinions rendered in the cases of Wilhoit v. Hancock (5 Bush, 568) and of Pence v. Dozier (7 Bush, 134) is relied on as sustaining this view of the question presented.
The statute declares "that an action for seduction may be maintained without any allegation or proof of the loss of service of the female by reason of the wrongful act of the defendant."
This statute does not give the right of action to any other persons than those who could maintain it at common law, and the only object the legislature had in view was to dispense with the allegation and proof of the loss of service. It is silent as to those who may bring such an action, thereby leaving the common-law rule...
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