
    Oberlin v. Upson.
    
      A woman cannot maintain action — Against her seducer, when.
    
    In this state a woman cannot maintain an action against her seducer for damages arising from her own seduction.
    (No. 11580
    Decided April 18, 1911.)
    Error to the Circuit Court of Richland county.
    The plaintiff commenced her action against the defendant in the court of common pleas, and subsequently filed an amended petition of which the material averments are as follows: “That. at the time of the commission of the grievances hereinafter mentioned, she the said Nora Oberlin was and now is an unmarried female. ■
    “She further says that along about the spring of 1905, as nearly as she. can remember the last of April or the first of May, of the said year, that the said defendant, James Upson began paying attention to her, the said plaintiff, and continued so to do for more than a year. That he frequently during said time took her out automobiling and otherwise entertained her by buggy riding, calling upon her at her home and at the residences of her friends and relatives. And, as aforsaid, this conduct continued until about July 20, 1906, during which said time he had, by his continued attentions to her, and by his blandishments and protestations of ^ affection and the like, gained her respect, her confidence and affection.
    “And she further says that on account- of the things above set forth and on account of‘his-persuasion and various inducements and because he did in connection therewith importune her the said plaintiff, to have illicit relations with him, and because of her respect and confidence in him, she • did submit to his desires and did have such' relations with him. But she further alleges that at all times she relied upon his promise, which he frequently made of marrying her; and she further asserts that had it not been for such promise she would not have submitted to his desires, but, as herein alleged, because of the fact that he had gained her confidence, esteem and affection, coupled with his promise of marriage, she did submit as herein alleged, to his desires, and as a consequence of such relations she asserts that she became pregnant, and that the said defendant is responsible for her said condition.
    “She further says that on account of her illicit relations with him, the said defendant, she was delivered of a bastard child November 2, 1906; and that defendant is the father of said child; that she suffered great pain both of body and mind on account thereof, and was compelled to pay the sum of ........ dollars for medical attendance during her sickness and........dollars for nursing and other incidental expenses whereby plaintiff has been damaged on account of the things alleged in this amended petition in the sum of $8,000, for which she demands judgment.”
    To this amended petition a demurrer was filed, on the ground that it did not state a cause of action. The demurrer was overruled and an answer filed, and on the trial of the issues in the court of common pleas, a verdict was rendered in favor of the plaintiff. The circuit court reversed the judgment of the court of common pleas, on the ground that the amended petition did - not state a cause of action, and this proceeding is prosecuted to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.
    
      Messrs. Kramer & Jarvis, for plaintiff in error.
    In all cases where the parties, either by acquiescence or convention, occupy confidential relations, the legal relation of trust and confidence exists, e. g., principal and agent, husband and wife, attorney and client. Rich v. Railway Co., 382; Cooley on Torts (1888 ed.), 598.
    There' is perhaps no' relation of life in which more unbounded confidence is reposed than in that existing between parties who are betrothed to each other. Especially does the woman place the most .implicit trust in. the truth and affection of him in whose keeping she is about to deposit the happiness of her future life. Kline v. Kline, 57 Pa. St., 120; Lamb v. Lamb, 130 Ind., 273; Cooley on Torts (1888), 597.
    In his promise of marriage, he obligates .himself not only to keep the contract of marriage, but also to conduct himself in such a manner as to command her respect, confidence and trust, and to conduct himself so that he will not abuse the confidence and betray the trust placed in him. The most serious fraud accomplished, in this relation is that of seduction. Sheahan v. Barry, 27 Mich., 217; Cooley on Torts (1888), 597.
    Then according to the general proposition laid down above, the female, the party injured, could elect to bring an action ex contractu for a breach of the contract, or she could bring an action ex delicto for a betrayal of the trust and an abuse of the confidence.
    If she sees fit to bring her action in contract, she can introduce the.fact in evidence that she was seduced, that she had sexual intercourse, became pregnant and was delivered of a bastard child. Matthews v. Cribbett, 11 Ohio St., 330; Bennett v. Beam, 42 Mich., 346; Goodall v. Thurman, 38 Tenn. (1 Head), 209; Kelley v. Riley, 106 Mass., 339; Sherman v. Ramson, 102 Mass., 395.
    In considering this question of seduction, some courts have confused the terms “seduction” and “sexual intercourse.” While there are no direct decisions upon the question, yet courts have in obiter dicta hesitated to sanction an action of this kind for- the reason that the foundation of the action would be the sexual intercourse. It must be remembered, however, that seduction is not sexual intercourse, neither is sexual intercourse seduction. Johnson v. Holliday, 79 Ind., 151; Blagge v. Ilsley, 127 Mass., 191; Graham v. McReynolds, 90 Tenn., 673; Baird v. Boehner, 72 Ia., 318; Marshall v. Taylor, 98 Cal., 55.
    The foundation of the action in tort is the breach of duty, the sexual intercourse is the result of the breach and the direct object of the breach. To be sure she gave her consent. So does every one who is defrauded by placing too much confidence in another. The foundation of the action is not what was done, but the means employed to accomplish his ends. O’Callaghan v. Cronan, 121 Mass., 114; Cooley on Torts (1888), 599.
    
      At common law, without the promise of marriage, the female has no cause of action, for her own seduction, for the reason that she has nc foundation for her action. He owes her no duty for the breach of which he would be liable. Woodward v. Anderson, 72 Ky. (9 Bush), 624; Heaps v. Dunham, 95 Ill., 583; Bartlett v. Kochel, 88 Ind., 425; Cole v. Hoeburg, 36 Kan., 263.
    When the promise of marriage is made and she relies upon it, the relation is established which places a legal duty upon him, for the breach of which he is liable.
    Sexual intercourse, impregnation and birth of a bastard child is an injury much more proximate to the breach of duty than to the breach of contract. Courts almost universally allow these facts to be. introduced as evidence in a suit for breach of contract. Then why should they not be alleged and proved in an action for. breach of duty? Giese v. Schultz, 53 Wis., 462; Goodall v. Thurman, 38 Tenn. (1 Head), 209; Cooley on Torts (1888), 73; White v. Thomas, 12 Ohio St., 312.
    There are no authorities directly holding that she has such right of action. But it seems to us that the following «authorities are almost in point: Howland v. Carson, 28 Ohio St., 625; Weiher v. Meyersham, 50 Mich. 602; Rabeka v. Baer, 115 Mich., 328; Paul v. Frazier, 3 Mass., 71; Postlethwaite v. Parkes, 3 Burr., 1878; Tullidge v. Wade, 3 Wils. K. B., 18.
    
      Mr. W. S. Kerr, for defendant in error.
    There is no allegation that plaintiff in error agreed to marry defendant in error, nor is there an allegation that defendant in error refused to marry plaintiff in error. The petition- simply asks damages for seduction.
    There is no statute in Ohio authorizing the action. It therefore becomes necessary to sustain it, if at all, under the rules of the common law. Hanks v. Naglee, 54 Cal., 51; Paul v. Frazier, 3 Mass., 71, 3 Am. Dec., 95; Hamilton v. Lomax, 26 Barb., 615; People v. Clark, 33 Mich., 112; 2 Addison on Torts (6 ed.), Sec. 625, p. 752; Abbott’s Trial Evidence (2 ed.), 859; 2 Kinkead’s Code Pleading (2 ed.), Sec. 1124; Hodges v. Bales, 102 Ind., 494; Hood v. Sudderth, 111 N. Car., 215; Smith v. Yaryan, 69 Ind., 445, 35 Am. Rep., 232; 25 Am. & Eng. Ency. Law (2 ed.), 197; Dennis v. Clark, 72 Mo., 574, 37 Am. Rep., 447; Roper v. Clay, 18 Mo., 384; Dicey on Parties, 349; Woodward v. Anderson, 72 Ky. (9 Bush), 624; Galvin v. Crouch, 65 Ind., 56; Conn v. Wilson, 2 Overton, 233; Weaver v. Bachert, 2 Pa. St., 80; Buckles v. Ellers, 72 Ind., 220; Heaps v. Dunham, 95 Ill., 583; Welsund v. Schueller, 98 Minn., 475; Breon v. Henkle, 14 Ore., 494.
   Davis, J.

Ünder the common law of England as it has been recognized and administered in this country, a woman cannot maintain against her seducer an action for damages arising from her own seduction. This is frankly admitted ■ by the counsel for the plaintiff. in error; but they ask a reversal of the judgment below upon the ground that the plaintiff was induced to consent' to the solicitations of the defendant by.a betrayal of the love and confidence which had been engendered in her by a period of courtship and by a promise of .marriage' riiade. by -him. Confessedly, this' isinot an action ex contractu upon a promise of marriage, in which the ■ seduction. ■ might be- pleaded and proved as an aggravation of damages; but it is -clearly an ■ attempt to recover ex delicto. There is no averment of mutual promises or of an agreement to marry; arid an analysis of the amended petition discloses no more than that the defendant’s promise was one of the blandishments by which he accomplished his purpose. The case, therefore, presents no exception to the common law rule; for there is no claim of fraud, violence or artifice other than mere solicitation.

The theory of the common law. is that, since adultery and fornication are crimes, the woman is particeps criminis and hence that she cannot be heard to corriplain of a wrong which she helped to produce. It may be conceded that some of .the arguments adduced here might be fairly persuasive if addressed to the legislature. Indeed in several-of the states statutes have been enacted authorizing such an action; but a careful, study of the decisions in those states, limiting and construing those statutes, raises a doubt whether the legislation is a real advance upori the common law. 8 Ann. Cas., 1115, note. There is, however, no such statute in this state and the common law rule applies, "j

The judgment of the circuit court is

Affirmed.

Spear, C. J., Shauck, Price and Johnson, JJ., concur.

Donahue, J., not participating.  