delivered, and it became mingled with other wood of the deso he could not. it, and which the defendant had not bp'\1gl'lt" an,d told the plamtiff he could take away, but tOQe careful and not take any other of the defendant's wood. The plaintiff did not take away any, because he could not teD which his was, and thedefend-' ant used the whole. The court held that he could not recover the price for, wood sold, but could only recover in trover, or, by waiving the ,?,BSUmpsit for the money, if any had been received; and the judgmeritforthe plaintiff for the priCe was reversed, and judgment rendered for the defendant. That was a stronger case for the plaintiff than this;' fOJ:'Jhe,re the plaintiff supposed he had sold the wood, while here, on the finding ,of thejury, the plaintiffs must have known there was no sale. , On the whole case, as presented, understood; and considered with reference to these points made' on this motion. it is not made to appeal' but that the plaintiffs had a fairchance before the jury to obtain a verdict, . if they could, for these goods, as if sold and delivered. That failed is only attributable to the weakness of their case, and the strength of case, on the questions involved in that aspect. Whether the they have rights to be relieved by othe'r remedies is not now in question. new trial 0'Verruled"stay ofwoceedings vlJ,cated, and judg" , nient oIithe verdict ordered.
D. Ke'ntuoky. 1887.)
OEDUcTION-'SmT BY ,FATHER-MINOR DAUGHTER-PRESUMPTION.
% SAME"-CONSENT OF DAUGHTER.
S. SAME-MlilASUBE OF DAMAGES.
The'damages a father may recover, in an action for bis daugbter's seductio,n.ar13 not confined, t,o t,hem,ere lOSS, 0, f services, an,d ex,pensesattending , ber confinement. but may i,nclude compensation for all that he has felt and suffered in connection with the wronll. ,
Verdict for Plaintiff, $15,000. , De Jarnette &: Dickerson, for plaintiff!' , O'Hara&: Bryan and W. W. Cleary, for defendant.
JACKSON, J., (charging jury.) The distinguished counsel having discharged their dut.y to thek respective clients in this' case, it now devolves upon' the court a,nd jury to perform their duties in the premises. The case" from its very nature and character, touches our sensibilities, and appeals to our sympathies, in tbevery strongest manner, but we
BAaBOUR V. STEPHENSON.
must not allow sympathies Or prejudices in favor of or against either side to stand. in. the way of first ascertaining anddetel'luining the material facts on which the rights of these parties depend. You must not allow your sympathy or prejudice to rUn away with you, or to disregard the evidence. .Your sworn duty is to decide this case on the evidence, under the law applicable to the questions involved as the court shall charge you, and with such comment as to the facts as. the court may legitimately make. Now, gentlemen, on entering upon your investigation of this ('ase, when you retire to consider your verdict, you should first carefully ·re· view and weigh the whole evidence as to the material facts upon which the rights ofthese parties depend, without bias,ptejudice, or sympathy. It devolves. upon the plaintiff to .establish to your satisfaction two facts, in order ·that he may recover: Jilirst, that the person seduced was \his servant; and, BeCondly, that that seduction was accomplished as a matter of fact by the defendant. You will have no difficulty with the first branch of the case, it having been shown that the daughter in th:i& case was in the family of the father, was under his control, and was under age, or a minor. The law presumes the relation of servant; that is, that the plaintiff had a right to her services, and that for the wrongful act of seducing her, whereby loss of her service resulted, he may recover. The old idea or: theory was that the parent recovered only for the loss of service,togetherwith such actual expense as he may have been subjected to in and about the daughter's confinement. But it may be said, to the credit of modern jurisprudence, that the law has advanced far beyond this relic of barbarism, and that now the damage resulting from such an injury is not confined to loss. of service and attendant expenSi:!s, but reaches far beyond, and aims to give compensation to the wounded feel. ings of the plaintiff. According to the modern rule, the plaintiff goes through theform of showing that he was entitled to the daughter's ice, in order to reach the higher plane of injury and wrong, for which he is entitled to compensation. This first element of the case to be established by plaintiff, viz., that the seduced person waR his servant, is not contested by the defense, is fully shown by the undisputed evidence introduced, and you may therefore consider that branch of the case out of the way. Tpe controverted issue in the case turns upon the question whether, as a matter of fact, the defendant was the person who seduced or debatlChed the plaintiff's daughter, and was the father of the child of which she was delivered. That is the all-important fact to be determined by you. You must not concern or bother yourselves as to how the defend· ant may have accomplished the act, (if he did it,) or the precise hour 01 the day, or the exact place at which he did it. The question is, doef the proof show to your satisfaction that the defendant was the father of the child the plaintiff's daughter gave birth to? That is the controverted issue and question offa.ct. Now, when you retire to consider and determine that material and vital fact, which you must determine f01 yourselves, (as the court can only aid you by some general rules relating
to evidence,) you must understand and bear in mind this leading proposition: that the plaintiff holds the affirmative of the issue, or what is called the burden of proof rests upon him, the defendant having denied the charge. The plaintiff must satisfy you, by what is called a preponderance of proof, that the wrong complained of was committed by the defendant. By the preponderance of proof the court does not mean the largest number of witnesses on a given point. Four or five witnesses may testify to a fact, and a single witness may testify to the contrary, but under such <lircumstances, or in such a manner, and with such an air and appearance of truth and candor, as to make it the most satisfactory or convincing to you that the one witness, with the opportunity of knowing the facts testified to, has told the truth of the matter. When you are thus satisfied that the truth lies with a· single witness, or any other number, you a.re justified in returning a verdict in accordance therewith. This is what is meant by a preponderance of proof. It is that character or measure of evidence which carries conviction to your minds. You must be satisfied, gentlemen of the jury, from the whole evidence, that the defendant had carnal knowledge of the plaintiff's daughter, and, as a result of that connection, a child was born to her. You are met in the very outset of your investigation with those unfortunate conflicts in the evidence which generally arise in cases of this character. As sensible men, you, as well as these lawyers,. know that the fact of illicit intercourse or connection can rarely be established by direct or positive evideu.:le of eye-witnesses to the overt act. Positive testimony, aside from the parties to the act, is not to be expected. . The seduced person is a competent witness, and the plaintiff had the right to call his daughter as a witness. It would have been the subject of grave comment for him not to have calleu her, and given you an opportunity of hearing her statement of the matter. The defendant, in his own way and manner, has positively denied her statement. You cannot reconcile the testimony of these two witnesses, but must determine for yourselves, in connection with all the evidence, which you will believe. There are other conflicts in the evidence, bearing upon the main fact, which you should endeavor to reconcile and harmonize if you can. The court can only give you a few general rules as guides for weighing and deciding between testimony that cannot be reconciled. When there is irreconcilable conflict in their statements, you can look to the intelligence of the witnesses; to their interests in the suit, or its result; to their relationship to the parties. A witnef';s may be strongly biased by his or her relation to the litigants; and you should consider how far, if at all,such relationship has biased, controlled, or influenced such witness or witnesses in his or their testimony. You can also take into consideration the fact that the witness may be friendly to one side and hostile to the other. You can al.E!o look to the manner and bearing of the witness in testifying. Does the witness show a zeal in stating facts favorable to one side, and a reluctance in disclosing facts which would benefit the other? Does he testify in that frank, candid, and straightforward way which a witness should do under the solemnity of
BARBOUR 11. STEPHENSON.
an oath, or does he evade and equivocate? A witness may state facts reluctantly, and yet satisfy you that he or she is telling the truth. In the present case the young girl alleged to have been geduced might hesitate or be reluctant to detail all the particulars connected with or relating to the sexual intercourse. She is not to be immod'est in order to be worthy of belief. You may look to the circunistanees surrounding the witness, and the way he or she testifies in weighing their evidence. You may also look to their means of informatioo; and their opportunity of knowing the facts whereof they testify. You should look to the consistency of their testimony. Is the statement of the witness consistent with itself? Is he consistent with himself, or does he contradict himself? Is heeonsistent with undisputed or well-established facts, about which you have no doubt? Is he corroborated or contradicted by other witnesses . who, you are satisfied, have told the truth? Now, gentlemen, take these general rules as guides with your own every day experience and apply them to the testimony given before you, and determine on which side of this case the truth lies. You are not permitted as a juror to go out of the jury-box and tell your associates what you mayor might know about the matter in controvercSy, if anything,not having been placed upon the witness stand and subjected to cross-examination, which is the safest method known to the law· of ascertaining the truth. But, while that is 80, you may apply your experience in weighing and considering the statements :made by witnesses, and in detem1ining which side of conflicting and contradictory evidence best harmoriizes with such experience and the probability of truth; and having thus satisfied yourself, your duty will be to decide accordingly. Do not lose sight of the real issue, which is, was the defendant the father of the child.which the plaintiff's daughter gave birth to on the tenth day of July, 1885? AsI have already stated, the 'plaintiffhad the righHo put his daughter on the witness stand to state the transaction as she alleges it occurred. She has done this, and you have not only heard her evidence, but have seen her manner of testifying, and it is for you now to test and determine the truth of her statement. The defendant has also been put upon the stand and positively contradicts every material statement made by her. You have seen his manner, and bearing. Both testified under the solemnity of an oath, and one or the other has sworn falsely. It is for you to determine which has told the truth. In the issue that is presented here, the general character of the plaintiff's daughter for chastity is involved. The defense had the right to attack her general character for chastity, and to have broken down in that way any probability that defendant was the father of her child, even if he had had intercourse with her; but they have not done sO,-that is, no attack has been made 'upon her general character for chastity; and the court instructs that you should allow no suspicion to cross your mind that she had previous intercourse with any other man who was the father of her child. It may be that I am stating that too strong, and I withdraw that statement or instruction. What I mean is that, not .having attacked her general character for chastity, you cannot infer that she was
.;.';, ':rlIED.lCl'tA:L REPORTER. '
girl previous "to the ,time she was ;with;child., , :.¥oucanoo,'t infer that the child of,w.hich she was deliveredwiiBthe chUdoLthe'man Shehan who has helm referr.ed,to duripg;tha'progress'of:tlle trial.; SoJetthat go. You have no evidence in the, case to lead you off on sucba. 'trail as that. ,,I!'or :the plaintiff, it,js insisted. that the daughter's testimony is corroborlloted in;aJl essentialp,artioulars, by the evidence of her mother,and by tbetesti!Jlony of her The contention,Jor the defendant is that his denial oNhe seduction deJ'CorrODorated by the fact (as claimed) that .there werepeopleinandiabout ,his office on the twelfth of October, 1884, ,ttt or about: the timewllen it is, claimed that the act of seduction 00there were people in his office, and his office-room was so ti>,and',rJurrounded.by visitors' that it was improbable tbatthe transaction took place as There .some facts and circumstances about which there is no"oontroversy. The girl did have a child on the tenth day'ofJuly, 1885.;,' ,In the ordinary period of gestation, that cbUd was'begotten on or about:the,tenth or twelfth or middle of October, 1.884.,;IDhe,childwasbegotten,aboutthe time 'stated by the tiff's daugJllter; ,It doesllotappear that the child was born'prematurely j noris it shewn to have been different from the ordinary period of birth. !tis a fact that the girl was: on the premises the day of the alleged seductioll'. . fact, unque.ationed,:thatthe defendant was on thepremthat day, and in the house where it is claimed the seduction took ,place; ,The mother and sistel'8't:ate that the plaintiff's daughter was called, by the defendantto,thrit house on that day. The daughter also states that she was called by the defemdant, and went there by direction Qf.. her mother.,:The .defendant denies their statement. No other witnesses .on either side that fact. Which do you believe? It is for yoU WI determine. . pefendantnot only denies calling the girl to his office, denies that .he . had anything to do with, her;-that he had any seiKual intercourse 'with .her then ,and there, or at any other time or place; and in, conoboratiouofhis statement seeks to show that Gideon Hughes,'John Wynn."and John Gay, and perhaps others, were there on that day". and thntit was improbable, if not impossible, that he could .,;have accomplished the seductibn under such surrounding circumstances. Three credilDlewitnesses, MbiLancaster, Dr. Dougherty, and Mr. Harris, broughtilt,aud swear before you that Gideon Hughes' reputation in the neig4borhood for truth and'veracity is bad, that he is unworthy of belief, wouldinotbelieve him on oath. On that testimony, if you believe it; you have: the right to diRcredit all that Gideon Hughes has:,stated, except mso·,far as he is corroborated by the testimony of Qthe,r:witnesses whom you do believe. All the witnesses stand before you as equally credible, except so far as, they may have discredited. themselves by false statements, or been discredited by other witnesses, or impeached. ' 'The plaintiff's daughter says that she was called over to the defendant's office some time before dinner, or after her mother had commenced getting dinner, or while she was making preparations to get dinner. The
mother and sister- make substantially the same. statement. Gideon Hughes in his testimony, if you remember, says that he was at the defendant's office, on the day in question, from about 11 o'clock until 2 o'clock P. M. The witness Wynn says that he was there between 10 o'clock A. M. and 1 o'clock P. M. The colored 'man Gay says that he was at the boarding-house, about 80 feet distant from .defendant's office, butdoesnotrememoorto have been at the defendant'soflice. You must weigh this testimony 'and give it such consideration as you may thirik proper; but,. gentlemen of the jury;' you should not be..misled by the question as to the exact hour at which the seduction was accomplished, if the act was committed by defendant. Of course, the, daughter and her mother and sister have testified as to the time of day she went to defendant's ·office. You are not to find that the act was committed at any particular 'hour; but, assuming the evidence introduced by defendant to corroborate his denial to be true, the question is, wasrthere,or was there not, an opportunity for defendant to have done the act complained of? Could he have done it before Gideon Hughes got there, assuming that Gideon. Hughes got there about 11 o'clock A.M.? Can' you find' ,from the evidence that tbe act could or might have: been accomplished before 11 o'clock, or can you find that Hughes got there at that hour? Apply your experience to these statements as to the exact hour a witness says he was at a particular place. How far can you rely upon the remem-' brance of a wItness testifying to the exact hour' at which he or she was in a particular office or pladetwo or three years since'?, The thing for you to do,therefore, is toreconoile thisconflict'ofevidenceas to the precise hour of the act, under the testimony and thecil'cumstances surrounding the parties. Could the:.seductionna;ve ·occun-ad before Hughes got there? Could ithav6 happened before Wynn got there? Could it have' taken place while Gay was at .the boarding-house.? Does this evidence introduced by defendant to support Hnd· corroborate 'his denial, together with the surrounding circumstances, strengthen his 'denial, and render it improbableth'at the actcould have oecurredas atMed by plaintiff's daugh.. tel', or can it be reconciled with·her testimony? It has been earnestly pressed upon you by counsel for the defense that you cannot find for the plaintiff without finding that the defendant committed arlipe upon the daugbter, for;wbichQfl'ense he is now being, prosecuted iIi ·thestate courts. The couPt instructs you that the rape suit bas nothing to do with this case. This is Ja suit, by the plaiiltiffto recover'$20,OOO for thesed'tWticm of his daughter. 'It does not involve any question of rape; and the evidence as detailed before you does not involve the>crimeofrape at all. Under the1evidencein this case, no court could· convict the defendant of The'daughter, according to her own testimony, made no outcry; made no immediate complaint; she made resistance as the law requires, but yielded a hesitating and reluctant consent, on her Own statement of the affair. The law would not find the defendant guilty of the crime of rape-a felony punishable by death under the laws of Kentucky-under such circumstances.· You have nothing to do with the ·qnestion of rape. The question which you
'8re to' determine is whether the defendant had carnal- knowledge of the plaintiff's daughter anhe times and places stated byher, and whether, as a: result fof thatintercourse, a child was born to That is the vital 'question here. You need notbother yourselves as tOt whether thedaughShe could not consent, so fin as the father, whose rights are alone inv.olved in this suit, 'is concerned. ;Now, gentlemen,ofthejury',you'have the main question before you. Witnesses differ as toAates\ !,They differ as to the time when the defendant returned to his p.la.ce . after the plaintiff reached there with his famHy,early in October. Whether the defendant got Friday morning or Friday night, Saturday morning or Saturday night, is wholly immaterial. These differen<ies may test recollection, but the fact is not material. Nor is it materia}'whetber the second act of illicit intercourse took place two or three days of a ,week after the firstio1' after defendant had'left the place and comeback again, as the daughter stated on the stand. The ,material question if:ljdicl he have carnal knowledge of the girl,and was a child born toher.on the tenth July, 1885, as the result of,that colnnection? You may take these dates, or consider the testimony as to dates, and see how far, the accuracy ,of a party's recollection isconcertled or affected therebY.. Do not be! Ulisled by them. ,The thing for YGU to look to and determine is, was the defendant guilty of the act'chairged? -Now, gentlemen 'of the jury, ifyolJ. find (and the court has cautioned you to act·wi.'thou,t allowingany.-Syrupathy to bias your judgment, but to 'Weigh the evidence, giving cregit to the witnesses YQu believe. have stated the truth)-that the defend!/>nt was guilty of the act charged I-the seduetion·Qf the plaintiff's daughter,"Tb'then you to consider the the plaintiff, question of, plaintiff's damages. As! have ill such cases, was originallyuwarde<l damages on the theory of simply compensating him for the loss of his servant's servic.", together with the expense, labor,'and care of,her·confinement. But, to the credit of our modernjuiisprudence,the law has advanced beyond that relic of barbarism, and the father now·is,entitled,not (lnly to compensation for 1088 of services,and-expensesattendant upon his daughter's confinement in such cases, but for all that he canjefJl from the, nature of the injury. I do hot put the case to you as. involving villdictive. damages, but I do put it to you as strongly as language can express if you find the defendant had sexual intercourse with the plaintifl7s daughter, and, as a result ofthat intercourse,thatlt child was born to her July 10, 1885, the plaintiff is entitled to recover, as damages,all that you choose to give him for his wounded up to the limit of the sum claimed in his declaration; which is $20,000. A father, of course, feels a consolation in the virtue of his daughter. All parents must understand.tha-tfeeling. You may give the plaintiff 'damages in your discretion, up to theJimit claimediu his declaration, fQr the loss of that comfort'and consolation which he had a right to feel in the purity and virtue of his child .. You may take into consideration his loss of hope in theAuture orhis daughter, and compensate him for the same. You
DIECKERHOFF V. ROBERTSON.
may award him damages not only for his mental anguish in the disgrace of his daughter, but for his anxiety as to what is to of her in the future. You may take into consideration his feeling of anxiety as to the effect ·of that daughter's example upon his other child. You may look to the loss to him and his family of social standing ltndposition by reason of the daughter's disgrace. You may consider bis mortification, humiliation. and sense of dishonor. The world, as we know, visits upon the girl or woman more severe condemnation for such acts than it does and. ostraupon the man. She and her family are more or less cized. Toa considerable extent, the hopes and prospects of the family, as as the 'girl herself, are'blighted. We. need not stop to consider whether it is' right or wrong for the worM and society to deal more lenil entIy with the man than the woman for such offenses against virtue apd chastity. There mayor may not be, reason-sound reason-for s'uch discrimination. The fact exists, and may be faken into consideration by you in: estimating the 'injury wbich tbefather has. sustained by,tbe seduction of his daughter. So that, in respect to !lamages, it maybe summed up in one general sentence or statement: That, if you find the defeUdllnt committed tbe wrong complained of, you may compensate the plaintiff, up to the limit claimed in his declaration, for all that he. as a father, may have felt and' suffered for the wrong and injury he bas received in the ruin of his. daughter. Your first duty is to determime the question whether the defendaJ;lt committed the act charged against him. Upon that branch of tbe case do, not allow your sympathy orprejudjce to I'Ul;l away with yOU)i but, when you shall have found that fact, then this court cheerfully le/tves to your determinatien wbat compensation you shall give to tbe injure<;l fatber, and tells you that in awarding damages for his wounded feelings, bis mental. sufferings, bis anxiety,his humiliation, and his sense of honor, you may go up to the very limits of the amount claimed by the plaintiff in his declaration. , Now, gentl'emen, take the case and consider :,t. I do not tbink of anything else to wbich your attention shouIa' be'caBell.
and others v.
(Circuit Court, S. D. New York. A'ugust 16,1887,'
CuSTOMS DUTIES-AMENDMENT OF BILL OF PARTICULARS-SECTION
3012, REV. ST· . A bill of particulars, required by section 3012. Rev. St. U. S., in an action brought against a collector of customs to recover excessive duties, may, under that section, be amended by increasing the amounts of such duties therein claimed. in case of reasonable excuse for a bonafide mistake; but the specific cause of error or mistake should be shown, and why the original was not made in proper form.
This action was brought June 20, 1885, against the defendant to recover an alleged excess of duties exacted of plaintiffs by him as collector