Bayles v. Burgard

48 Ill. App. 371, 1892 Ill. App. LEXIS 496

• Court: Appellate Court of Illinois
• Decided: October 17, 1892
• Status: Published

Opinion

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

Burgard obtained a judgment in the court below against Bayles for the seduction of an adult daughter, to reverse which judgment this writ of error was sued out.

The daughter, though an adult, had, since arriving at her majority, resided with her father as one of his family the same as while a minor. Since her mother’s death, and for a period of seven years, she had been his housekeeper and cared for his minor children. She occasionally, with her father’s consent, did washing and other housework away from their home, her earnings on such occasions being divided between them. When the sexual intercourse complained of occurred she was thus temporarily at the house of Bayles, by an arrangement made by Bayles with the father.

The relation of servant to the plaintiff is, we think, sufficiently shown. Only slight acts of service are necessary to create the relation and sustain the right of action for seduction where an adult daughter resides with the father. Ball v. Bruce, 21 Ill. 161; Greenleaf Evidence, 2 Vol., Sec. 576.

We think there is sufficient evidence to uphold a verdict of seduction by the plaintiff in error, and loss of service to the plaintiff below, occasioned thereby.

Loss of service is theoretically necessary to support an action for seduction, but only slight evidence of sucli loss is required, for the reason that the loss of the comfort and society of the daughter and of the honor of the father and the family, are the real constituents of the cause of action.

The refusal to give instruction No. 7 does not warrant a reversal.

The principle imperfectly announced in this instruction is fully and correctly given in the second instruction on behalf of the plaintiff in error. Nor was it error to refuse to submit the special verdict asked by the appellants.

Special verdicts should not be asked upon immaterial and inconclusive questions.

The ultimate fact, not the evidence supposed to support such fact, should be asked for. The court might, we think, have properly refused to submit each of the special questions asked by the plaintiff in error, and, as modified by the court, they were still more favorable to the plaintiff than the law warranted.'

We do not find any such error as demands a reversal, and think the judgment right upon the merits. It must be affirmed.