
    Dain v. Wycoff.
    
      Parent and child. — Action for seduction.
    
    A father cannot maintain an action for the seduction of his minor daughter, against one to whom she is indented as a servant.
    Appeal from the general term of the Supreme Court, in the sixth district, where a motion for a new trial, made upon a bill of exceptions, had been denied, and judgment rendered upon a verdict in favor of the plaintiff.
    This was an action to Recover damages for the seduction of the plaintiff’s minor daughter. The daughter, Sally Dain, when about fourteen years of age, had been indented as a servant to the defendant; by whom she was shortly afterwards seduced, and when about sixteen years old, became pregnant. The defendant induced the girl to take drugs, to procure an abortion, but the attempt was unsuccessful, and she gave birth to a living child. On the trial, the court permitted the plaintiff to prove that the defendant was reputed to be a wealthy man.
    At the close of the plaintiff’s case, the defendant’s counsel moved for a nonsuit, on the ground, that the girl, at the time she became pregnant, was not the plaintiff’s servant, but that of the defendant. The motion, however, was denied, and an exception taken.
    The defendant then offered to prove that the character and standing of the plaintiff in the community was bad; and also the bad moral character of the girl, before she was fourteen years old. This evidence was excluded, and exception taken.
    
      *There was a verdict in favor of the plaintiff ~ ... for $1000 damages, and a motion for a new trial *- having been denied, and judgment entered on the verdict, at general term, the defendant took this appeal.
    
      Gushing, for the appellant.
    
      jBruyn, for the respondent.
   Gardiner, J.

1. The offer of the defendant to prove the bad character of the plaintiff, who was the father of the girl seduced, was properly overruled; his character was in no sense in issue. If a jury were authorized, to take the feelings of the plaintiff into account, in assessing damages, the evidence would not tend to enlighten them upon that subject, unless insensibility is deemed a legal consequence of a bad reputation. Such *an in- ^ ference would not be in accordance with the ^ facts, nor is it a presumption of law.

2. The plaintiff’s counsel asked a witness, what the defendant was worth; the question was objected to, and allowed by the judge, and the defendant excepted. The objection was not to the mode of proof, specifically, but to the competency of the fact sought to be established. The custom, at the circuit, has been, to admit evidence of this character, but I have not been able to discover, in the elementary• writers on evidence, authority for the practice. (Starkie’s Ev., 7 Am. ed., vol. 2, p. 772; 2 Phil. Ev., Cowen & Hill’s ed., 218; Stephen’s Nisi Prius 2356-7.) These authors concur in saying, that damages, beyond the mere loss of service, may be given for the dishonor of the plaintiff and his family, and for injured feelings. But those damages are, notwithstanding, intended as a compensation for an actual though indefinite injury, to which the plaintiff has a right, whatever may he the circumstances of the defendant, and, upon principle, to nothing more. If the defendant cannot show his poverty, in mitigation of damages, there is no reason why the plaintiff should aggravate them, by proof of his wealth. Starkie would seem to be of the opinion, that such evidence was admissible, in actions for criminal conversation (vol. 2, p. 254); but the precise contrary was held by Alderson, B., in Jones v. Buddington (6 Car. & P. 589): he remarks, that “ such evidence had often been given, but that it was improper; the plaintiff is entitled to as much damages as a jury think is a compensation for the injury he has sustained, and the amount of the defendant’s property is not a question in the case.”

There is good sense in these observations, and they strike at the foundation of punitive or vindictive damages. There can be no reason, why twelve men, wholly irresponsible, should be allowed to go beyond the issue between the parties litigating, and after indemnifying the plaintiff for the injury sustained by him, proceed, as conservators of the public morals, to punish the defendant in a private action, for an offence against society. If the jury have the right to impose a fine, by way of example, the plaintiff has no possible claim to it, nor ought the court to interfere ''and set it aside, however excessive it may be. In ordinary cases of misdemeanor, the legislature have restricted the power of the court, in the imposition of penalties, within certain definite limits. But a jury, in civil actions, have, by this hypothesis, an unlimited discretion to determine the crime, and upon the measure of redress demanded by the public interest. The right stands upon no principle, nor, in reference to actions of this character, upon any authority. If the jury were not authorized to give *194] vindictive damages, the testimony was wholly irrelevant and should have been excluded.

3. The defendant moved for a nonsuit, upon the ground that the relation of master and servant did not subsist between the plaintiff and his daughter, when she was seduced. It appeared, that she was the apprentice of the defendant, and bound to live with him until she was eighteen, and that the seduction occurred, while she was thus, in fact and in law, the servant of the defendant. The relation of master and servant is the foundation of the action for loss of service (4 N. Y. 38, and cases there cited); the plaintiff to maintain the action must have had the right to the service of his daughter. But he proved, that she not only resided with the defendant, but owed him service, when the injury was committed. Unless the defendant procured the daughter to enter into his service, with a view to her seduction, of which there is no pretence, the plaintiff should have been nonsuited.

We all agree, that the judgment should be reversed, for the reason last suggested. My brethren express no opinion upon the other points in the case.

Welles, J.

(After stating the facts.) — It is abundantly settled by authority, that in order to sustain an action of this description, it must appear, that the relation of master and servant existed at the time the injury complained of was committed. The action is founded on the loss of service, and in order to maintain it, the relation must be actual or constructive. If the plaintiff is not receiving the services of his daughter, at the time. he must be in a situation and have the legal right to * 195 1 *commanJ khem a* pleasure. In this case, the 1 plaintiff’s daughter was not, at the time she was seduced and gotten with child, his servant, but was the servant of the defendant, who had the legal right to, and was actually receiving, her services. In the late case of Bartley v. Richtmyer (4 N. Y. 38), Bronson, O. J., has given the whole subject of the principles of this action a full examination, and it is unnecessary to repeat the views which are there so well stated. The case is in point, and in effect decides this; according to the principles held by this court in the case referred to, it is impossible for the plaintiff in the present case to sustain an action, upon the proof which was given at the trial.

Judgment reversed, and a new trial ordered. 
      
       This point was affirmed by the court, on a second appeal. 18 N. Y. 45.
     
      
       That exemplary damages are recoverable in such case, was decided in Lipe v. Eiserlerd, 32 N. Y. 229 ; Ingersoll v. Jones, 5 Barb. 661 ; Damon v. Moore, 5 Lans. 454 ; Phelin v. Kenderdine, 20 Penn. St. 354.
     
      
       On a second trial, this fact was proved, and the plaintiff had a verdict and judgment, which were affirmed on appeal. 18 N. Y. 45.
     