Zitzer v. Merkel

• Decision Date: 14 August 1855
• Parties: Zitzer <I>versus</I> Merkel.
• Court: Pennsylvania Supreme Court

24 Pa. 408

Zitzer versus Merkel.

Supreme Court of Pennsylvania.

August 14, 1855.

ERROR to the Common Pleas of Cumberland county.

Watts and Hepburn, for plaintiff in error.—The evidence of the conduct of the daughter had no tendency to establish the affirmative of the issue, or to disprove anything alleged in the testimony on part of the defendant. In a civil suit evidence of the good character of a witness is not admissible until the character is attacked. Evidence of uniform good conduct was not admissible: 1 Camp. 460; 3 Id. 519; 3 Penn. Rep. 49-52-3, Wilson v. Sproul; 11 Harris 424, Porter v. Seiler.

Penrose, with whom were Miller and Sharpe.—It was said that evidence of general good character was admissible when there was a cross-examination in order to contradict the witness as to the res gestæ: 3 Camp. 519, Dodd v. Norris. But the offer and admission was of general conduct, which, though in a legal sense, was treated as synonymous with character, in the opinions in Kimmel v. Kimmel, 3 Ser. & R. 336, was not so. General character is reputation arising from conduct; and witnesses to the latter testify to what they have seen, and not to what they have heard. It was not secondary evidence, and, being founded on actual knowledge, was calculated to prove that the defendant's witnesses, who knew the female, during less than three weeks, were mistaken in her person or falsified. The distinction between character and conduct is noted in 3 Stephens' Nisi Prius, ed. of 1844, tit. Master and Servant, referring to the case of Magrath v. Browne, Armstrong & McCartney's Reports, 136. The case of Bamfield v. Massey, 1 Camp. 460, also cited.

The evidence was admissible on the question of damages. If the defendant were the father of the child, the evidence offered on his part would be evidence in mitigation of damages: 7 Car. & P. 308.

The evidence of defendant's good character did not disprove the charge, or contradict any testimony given on part of plaintiff, and was offered after defendant's testimony in chief had been closed, and after plaintiff's rebutting testimony was closed.

The opinion of the Court was delivered, August 14, by WOODWARD, J.

This was an action on the case for the seduction of the plaintiff's minor daughter. The defendant gave evidence without objection that about the time of the seduction Lucinda permitted improper liberties to be taken with her person by other men; in reply to which the plaintiff offered, and was permitted under...