#### Trzebietowski, Respondent, vs. Jereski, Appellant.

*November 21*—

December *8, 1914.*

*Seduction: Loss of services: Evidence: Exclusion of questions: Prejudicial error: Relevancy: Previous unchastity: Instructions to jury: Degree of proof.*

1. In an action by a father for loss of bis daughter’s services by reason of her seduction which resulted in the birth of an illegitimate child, a verdict for plaintiff is *held*to be supported by sufficient evidence, although the question is a close one, turning upon the veracity of the daughter and of the defendant.

2. To a question as to how the birth of the illegitimate child affected him, plaintiff answered “It affected me so that I would rather see the girl was dead or me.” *Held,*that the question was proper and the answer responsive.

3. Where a question does not indicate the nature of the evidence sought to be elicited or that the witness has any knowledge on the subject, and there is no offer of proof or statement of what is expected to be shown by the answer, the error, if any, in excluding the question cannot be said to be prejudicial.

4. Defendant having, for the purpose of showing previous unchastity of plaintiff’s daughter, introduced testimony to the effect that while riding in a farm wagon, when about fourteen years old, she had thrust her hand through an opening in the seat and playfully tickled the driver on his side, the court properly directed the jury to disregard such testimony, there being nothing in the incident indicating depravity.

5. In a civil action where one of the facts essential to a recovery also constitutes a crime the jury must be satisfied of the existence *191of suck fact by a clear and satisfactory preponderance of tbe evidence; but an instruction in this ease that tbe jury must be satisfied “by a fair preponderance of tbe evidence and to a reasonable certainty,” is *held*to be so slight a departure from tbe rule that, in tbe absence of any request for more explicit instructions, tbe error cannot be deemed prejudicial.

Appeal from a judgment of tbe circuit court for Trem-pealeau county: E. 0. TIigbee, Circuit' Judge.

*Affirmed.*

For tbe appellant there was a brief by *R. 8. Oowie,*attorney, and *Qaveney &*Barlow, of counsel, and oral argument by *Mr. Oowie.*

*Frank 0. Richmond*and *John A.*Markham, for tbe respondent.

TimliN, J.

Tbis appeal is by defendant from a judgment’ for $2,250 damages and $128.53 costs in favor of tbe plaintiff, tbe father of tbe witness Helen, given in an action in form for loss of services, in substance for damages resulting from her seduction or ravishment resulting in pregnancy and tbe birth of an illegitimate child. Tbe learned counsel for appellant make a vigorous and able presentation of tbe case, principally on tbe ground of tbe inadequacy of tbe evidence to support tbe verdict. Tbe question is a close one and turns upon tbe veracity of Helen and that of defendant. We regard the evidence as presenting a case for tbe jury, and it' would be largely guesswork for us to attempt to decide which of tbe witnesses, Helen or tbe defendant, is telling tbe truth. Tbe learned circuit judge saw these witnesses and beard tbe evidence, and be added tbe weight of bis opinion to that' of tbe jury when he refused to grant a new trial. It would answer no good purpose to spread upon these pages tbe details of tbe evidence. We must bold that there was evidence to support tbe verdict.

Passing to the other assignments of error. It having appeared in evidence that Helen bad given birth t'o an illegitimate child, tbe plaintiff as a witness in bis own behalf was *192asked bow tliis affected bim. lie answered: “It affected me so that I would rather see the girl was dead or me.” The question was proper and the answer was responsive to the question. In cross-examination of the plaintiff the following question was asked relative to a grown-up daughter then residing in Winona, Minnesota: “What is she doing now ?” An objection of plaintiff to this question was sustained. There was no offer of proof, there was no statement of what was expected to be shown by the answer, and it is impossible for this court to say under such circumstances that the ruling, even if erroneous, was prejudicial. Defendant sought to prove by a witness on the stand the interior arrangement of plaintiff’s house. An objection to such evidence was sustained, the court saying in making such ruling: “If you want to make an offer make it in writing and I will rule upon it.” No such offer was made and we therefore cannot say the ruling was prejudicial. Where the question does not indicate the nature of the evidence sought t'o be elicited or that the •witness has any knowledge on the subject and there is no offer of proof, it is manifestly impossible to say that prejudicial error affirmatively appears from a ruling sustaining an objection to such a question. This is an effect of sec. 3072m, Stats., which counsel would do well to keep in mind.

It is said the court erred in instructing the jury to disregard the testimony of one Rudnik. In order to show in mitigation of damages that Helen, who was between fifteen and sixteen years of age at the time of her seduction, was before that time unchaste, the defense offered the testimony of one Rudnik, a farmer for whom the girl worked when about fourteen years of age. This testimony was to the effect that on one occasion while riding on a farm wagon, Rudnik in the seat and the girl Helen and two other children standing up behind the seat, Helen thrust her hand through the opening in the back of the seat and playfully tickled Rudnik on his side. The circuit court rightfully told the jury to disregard *193tbis evidence. It requires tbe stimulus of extraordinary zeal to see anything indicating depravity in tbis incident.

Tbe most serious question is upon exception to an instruction in tbe following words: ..

> “In order to entitle tbe plaintiff to recover, it is necessary tbat you be satisfied by a fair preponderance of tbe evidence and to a reasonable certainty tbat' tbe defendant is tbe person wbo bad sexual intercourse with ber. If you are so satisfied you should find for tbe plaintiff. If you are not so satisfied you should find for tbe defendant.”

Appellant’s counsel correctly contend tbat in a civil action, where one of tbe facts essential to recovery also constitutes a crime, the rule is tbat it is necessary tbat tbe jury be satisfied of tbe existence of such fact by a clear and satisfactory preponderance of tbe evidence. *Poertner v. Poertner,*66 Wis. 644, 29 N. W. 386. Instead of using the words “clear and satisfactory” tbe learned circuit judge used tbe word “fair.” He did, however, add to tbe rule as stated in tbe case last mentioned tbe words “to a reasonable certainty.”

It is quite difficult to determine whether a clear and satisfactory preponderance of evidence requires greater convincing power of evidence than a fair preponderance of evidence and to a reasonable certainty. Tbe last expression would seem to require tbat tbe evidence reach tbe degree of fair preponderance, and also establish tbe fact to which it is directed to a reasonable certainty; while tbe former expression requires only a clear and satisfactory preponderance of the evidence.

In *Klipstein v.*Raschein, 117 Wis. 248, 94 N. W. 63, tbe instruction closely followed tbe rule of tbe *Poertner Case*but omitted tbe word “satisfactory,” thereby advising tbe jury tbat if tbe proof failed to establish any of tbe material facts by a clear preponderance of tbe evidence tbe plaintiff could not recover. Tbe words “to a reasonable certainty” were not used. It was held that tbe charge there complained of was *194equivalent to that approved in the *Poertner Case.*Although the words “to a reasonable certainty” were not used either in the *Poertner Gase*or the *Klipstein Gase*the opinion goes on to say: “In the very nature of things no fact can be established to a reasonable certainty, the certainty required in any civil action, by less than a preponderance of the evidence, nor established with such certainty, clearly, by less than a clear preponderance of the evidence, the clear weight of evidence.” It was then said that the expressions “clear preponderance of the. evidence” and “clear and satisfactory evidence” were substantial equivalents.

*Neacy v. Milwaukee Co.*144 Wis. 210, 219, 128 N. W. 1063, reads as follows:

> “True, as has been suggested upon previous occasions, the distinction between establishment of a fact by a preponderance of the evidence to a reasonable certainty, and establishment thereof to such certainty by clear and satisfactory evidence, may be somewhat shadowy; but it’ is considered that there is such a distinction which is so substantial that- a definite rule in respect thereto was logically formulated at an early day and has become a significant feature of our judicial system. Such feature must, necessarily, vary in importance according to the depth of moral turpitude of the fraud alleged.”

In *Larson v.*Foss, 137 Wis. 304, 118 N. W. 804, speaking of the rule as applied to an ordinary issue of fact in a civil case and the departure from that rule by the circuit court, it was said that more explicit instructions on this point should have been asked for, citing *Curran v. A. H. Stange Co.*98 Wis. 598, 74 N. W. 377.

It seems to us that the departure here from the established rule is slight and that in the absence of a request for more explicit instructions we cannot regard the instruction as here given prejudicial. It must have been understood by counsel and the court, hence presumably by the jury, as stating the *195substantial equivalent of the rule laid down in *Poertner v. Poertner,*66 Wis. 644, 29 N. W. 386. Other questions have been considered, but we find no sufficient reason for reversing the judgment of the court below.

*By the Court.*— Judgment affirmed.