Year: 1861

4


OFFICIAL


Decisions OF the supreme Court of The
| state OF Tennessees at Knoxville, Sep.
| senaDer Terms 1s6O.


J. R. snpson Smith AID Wife.
| Polly Flynn brought this action on the ease for
| the seduction of her natural daughter Maranda
against Joseph r. Simpson and pending the suit she
interrnarried with Smith whose name by amendment
Incorporated with hers in the suit The Jury rem
dered verdict for 81 600 damages, which the court
refused to set aside, and the is brought here
for reversal


In the court below, the case seems to have been
attended with deep interest and excitement both
| sides, and is argued here with unabated zeal and
ability. Several legal questions are raised which
have not perhaps been settled by our adiudica-
tons.


Ist. The action in case and was instituted before
confinement and delivery, which however occurred
pending the suit. According to the fiction that the
suit of the parent is simply for the loss of service,
and the expenses of the confinement of the daughter
regarded a servant, this would seem to be fatal
objection. But this only fiction, and not the real
ground of the action 1t may be an element but not
the main one in the assessment of the damages
Whatever may be the theory of the action, in prae-
tce its object and scope is to redress far pFac
ticable by damages, the prostration Of character,
the mental surings the social degradation and loss
of position in society, which must result from the
seduction. In estimating these, reference may be
1en1ale 0efSeu as well as In6 WE0le farDl
" to which she belongs This action is also regard
ed and designed as a mode of Furnishing as well as
redressing Of the most aggravated private inju-
ries to the peace and happiness of family. This
being the object and design of the action, there
be no good reason why it may not be instituted be-
fore as well as after confinement. And so are the
authorities-9 Stephens Nisi Prius 2352. (Roscoes
Ev 4s3) 10 Wendell 239; 5 IredelIs law Rep. (N.
C) 20.


? 1t is again insisted most strenuously. that the
40 hrrth Of fha szr
and not seduction and that this action will lie
for the offence.


We can see no reason between a forcible and con-
sentive violation Of the person of female which
results in pregnancy. The connection by violence
and force certainly the greater wrong and lacks
the mitigation of the criminal concurrence Of the
female the act complained of in the suit for dam
ages. The Illicit intercourse with consequent preg
nancy the gravamen of theaction and the NO e by
which il was accomplished, whether by persuasion,
intreates or fraud. with consent or by force and
violence against it, make difference in 1t
is no to the demand for redress of the pri-
vate injury, that the mode Of IFS inicon, the CT
fender has made himself felon and is amenable o
the criminal laws of his State 1t is enough for this
action that the chastity of the female violated
and impregnstion produced, whether with against
consent. This precise question does not seem to
have been exPreSsly made and settled in any author
ity TO which we have made reference. Yet in Ma
ron VS.. DAVIS l. Cowan 4l4 it seems TO be intimated
that seduction may be perpetrated TO author
ise the action by ''actual violence on the person
of the daughter But in the absence of any
authority against it. we have hesitation in decid
ing that the action for seduction will lie, although
the offence was accompanied with force and against
her WILL even to the extent that would make out
case Of rape. So we hold that his Honor committed
no error in charging on both these points against
the defendant: The proof ls said to be insufficient
to fix the charge upon the defendant 1t rests alone
on the swearing of Meranda. Her evidence is just
y subjected to much criticism and observation tho
she is unimpeached in her general character there
are some things in the tale she tells which right
difficult to credit She says the offence perpe-
trated at the house Of defendant, on the floor, by
physical force over her most strenuous resistance,
in a adjoining that in which his children were
sleeping, he having ordered them of TO bed. and
she remaining alone with him. She says she made
out to cry but no One heard to her relief,
until he forcibly accomplished his object. She re-
mained at his house within half mile Of her
or mothers, with whom she lived, next morning till
after breakfast and assisted in getting it, milking
the cows, Ec And when she then went home, she
put on another dress and returned 10 the house OF
her ravisher in i very short time She made no
complaint TO any one but kept the secret locked up
in her own bosom for six or seven months and until
she found that concealment was no longer possible


But after all, perhaps, the doubt s Only as to the
manner in which the offence Yas commtted,n as to
the act itself. The charge against the defendant is
corroborated by anterior declarations OF intent on
his part and some other circumstances. The jury |



pared to say they were not justified in doing 1t
may be that she concealed her shame because it I
would nfiict pain upon her mother, as she said or
that it would put her in danger, and if the secret
could be kept her character would still be saved
before her friends and the public.
Taking the charge to be made out, the damages |
are not excessive. The case is most aggravated IN
its circumstances. The girl had the misfortune 10 !
be an Legitimate herself and as she said
for not disclosing the Outrage upon her until she
was compelled to do So her character for purity |
and virtue was all she had. She under cloud /
from the sin of her mother, but no stain was upon
her from her own conduct. Though she inherited |
the shame, she did not the vices of her mother |
according TO the proof in the 1t is |
hot strange that she shrank frcm an issue |
with the defendant as he was a man Of |
standing and she TO great extent destitute of
either 1t is true the mother was degraded and /
lived in state ef concubinage with Smith. But |
she was faithful to him, as it seems by the proof
and did not keep house of ill fame in sense that
would deprive her of the right to bring suit for
the seduction of her minor daughter then in her |
service.
The character and mode of life of the plaintiff |
was proper to be looked to by the jury the ques
ton of damages; so the Judge charged.
There is no rule of law reason that would de- |
prive the mother of this action for debauching an
ilegitimate daughter is insisted by defendants
counsel. 1t is not the relation Of the parent and
child but that of master and servant upon which
the action is based. 1t is that although the plaintiffs
in such cases comes into court master or mis-
tress they 60 before the jury father mother.
But this does not affect the principle.


Upon the whole we think there is no error in this
record that would authorize US to reverse, and we
affirm the judgment CARUTHERs.


A true copy: w. r, CAswELL, Clerk.