Dobson v. Cothran

13 S.E. 679, 34 S.C. 518, 1891 S.C. LEXIS 74

• Court: Supreme Court of South Carolina
• Decided: September 28, 1891
• Status: Published

Opinion

The opinion of the coui’t was delivered by

Mr. Justice McIver.

The plaintiff brings this action to recover damages from the defendants, who are alleged to be keepers of a bawdy house, for enticing and abducting from the home of her parents, Susie Dobson, an infant child of plaintiff, of the age of twelve years, and causing her to be debauched in the said bawdy house. The allegations of the complaint are so fully and clearly set forth in the charge of his honor, Judge Izlar, which for this and other reasons should be incorporated in the report of this case, as to supersede the necessity for anything more than the general statement which we have made as to the nature of the action.

The defendants filed separate answers, only one of which— that of the appellant, Elizabeth Cothran — is set out in the “Case,” from which we infer that the answers of the other two defendants were of the same general character; at all events, there is nothing in the “Case” to indicate that the defendants relie 1 upon different defences. The first defence set up in appellant’s answer amounts simply to a general denial of all the material allegations of the complaint. For a second defence she alleges : 1st. That another and older daughter of plaintiff was for a period of three years, and up to a short time before the alleged abduction of the said Susie Dobson, with the knowledge and consent of plaintiff, an inmate of said bawdy house, and that during the whole of that period the said Susie was a frequent visitor there, with the consent and approval of plaintiff. 2nd. That during the whole of said period the plaintiff and his wife, the mother of Susie, frequently visited said house for improper and immoral purposes. 3rd. That another sister of Susie, with the knowdedge of plaintiff, and without objection from him, made application to be allowed to become an inmate of said house and was refused. 4th. That the said Susie Dobson is and has been for a year last past, a person of “loose character.” 5th. That the said elder sister of Susie is now living in plaintiff’s bouse, receiving without objection from him, “the promiscuous and indiscriminate visits of men for improper purposes.” 6th. That the appellant has not the control and management of the house referred to in the complaint, “but only the use and ooccupation of two rooms therein.” 7th. That at the time of the alleged occurrences mentioned in the complaint, the appellant was sick in bed, and had nothing to do with said occurrences, if any such took place. 8th. That all the females of plaintiff’s immediate family are persons of bad character for chastity.

When the case was called for trial, counsel for plaintiff interposed an oral demurrer to the second defence set up in appellant’s answer, which was sustained, and defendants excepted.

All the testimony is set out in the “Case,” and it is manifestly very conflicting as to many material matters-of fact. The jury, however, rendered a verdict against all of the defendants for one thousand dollars, and judgment being entered thereon, the defendant, Elizabeth Cothran, alone appeals upon the several grounds set out in the record.

1 The first ground questions the correctness of the ruling sustaining the demurrer to the second defence, whereby the eight paragraphs of that defence, stated substantially above, were stricken out. The ground upon which the Circuit Judge sustained the demurrer is not stated in the “Case,” though we infer from what subsequently occurred, that his honor was of opinion thar the allcgaiions contained in those eight paragraphs did not amount to such a defence as would, if true, constitute a bar to the action, but were more properly circumstances in aid of the general denial, or in mitigation of damages; for we find that much testimony — indeed, all that was offered — tending to show the truth of such allegations was received during the progress of the trial. So that even if there was technical error in the ruling complained of, the defendants sustained no damage thereby, as they obtained all the benefit which they could have derived, if these allegations in the answer had not been stricken out.

We are not prepared to admit, however, that there was even technical error in the ruling, for the fact that the plaintiff and every member of his family had been persons of bad character and loose habits, in respect to chastity, would not constitute a defence to an action of this kind, no more than the fact that a female upon whom a rape has been committed is a person of dissolute character, would constitute a defence to an indictment for the rape. It would be no bar to an action of this kind to show that the girl whom defendants are charged with having enticed from the paternal roof and induced to become an inmate of a den of infamy was not a person of chastity, and that her domestic surroundings were not favorable to the cultivation of that virtue. That would not justify the act of defendants in inducing her to enter a bawdy house, where her previous bad habits would be intensified and fixed. It is very true that such allegations as are contained in the second defence set up in the answer, if established, would tend to shake confidence in the charge upon which the action was based, and aid materially the first defence under the general denial, and would also have an important bearing upon the question of damages. But, as wTe have said, the record shows that the defendants were allowed the full benefit to which they were entitled in these respects by being permitted to offer such testimony as they desired, tending to show the bad habits of the plaintiff and other members of his family.

2 The second ground of appeal is in these words: “There being a family Bible in the court house, having the record of the age of Susie Dobson, it should have been submitted instead of parol testimony.” This ground is based upon the unfounded assumption that the entry in a family Bible is the best evidence of the age of a person the date of whose birth is there entered. Such evidence, however, is in fact secondary, and is only permitted where better evidence cannot be obtained. It is really nothing more than the written declaration of the person who made the entry, and is admissible in cases of pedigree as an exception to the general rule upon the subject. But it is useless for us to pursue the inquiry, as the question has been distinctly decided in this State in the case of Taylor ads. Hawkins (1 McCord, 164), where it was held that the entry in a family Bible of the date of a person’s birth was not the best evidence of the age of such person, but that it might be proved by a person who testified from mere recollection of the fact and time of the birth of the person whose age was in question. In delivering the opinion of the court, Colcock, J., used this language : “In this case the witness may have proved the 'age of the defendant (although such entry existed) from mere recollection of the fact of his birth. In short, it is the very best evidence which the nature of the case admits. If no other evidence could have been had, the memorandum, upon proof of the handwriting, may have been admitted.” The same doctrine is recognized in Robinson v. Blakeley (4 Rich., 596); and in Wilson v. A. C. A. Ry Co. (16 S. C., 587), the general proposition, which would conclude the question under consideration, is laid down, that entries in a book need not be produced to prove a fact within witness’ owm knowledge. It was therefore clearly competent for the plaintiff to prove the age of his own daughter by his own testimony as to the date of her birth, as well as by the testimony of the child’s mother to the same effect, and there was no error in refusing to require the production of the entry in the family Bible.

3 The third, fourth, and fifth exceptions impute error to the Circuit Judge in refusing to allow certain questions to be put to plaintiff, as to what his daughter said after she had been found in the bawdy house and was being carried home by her father. Susie Dobson not being a party to this action, her declarations, under the general rule, would be incompetent. She could have been, and was in fact, examined as a witness, and there was therefore no occasion for asking another witness what she had said. But more than this, when she was on the stand as a witness, she was asked what she said to her father as well in the house as on her way home, and subsequently witnesses were examined for the purpose of contradicting her, and thus the defendants had before the jury all the facts which they complain were excluded. So that in no point of view can these exceptions be sustained.

4 The sixth exception imputes error in ruling out the following question propounded to Susie Dobson while on the stand as a witness : “That night when you were taken out of the wardrobe, didn’t you tell your father that you were not going home until you had got your money you had made there ?” What relevancy such a question had to the issue which the jury were called upon to determine, it is somewhat difficult to say; but in view of the undisputed testimony that Susie Dob-son was very much intoxicated and quite excited when taken out of the wardrobe, and in view of the further fact that she had testified that she had no recollection whatever of having seen her father on that occasion, we cannot say that there was any error in excluding the question.

5 The seventh exception complains of error in excluding testimony as to what Susie Dobson was supposed to have told Mrs. Fletcher she heard her father say was his motive for bringing this action. This question was so plainly incompetent, as an effort to elicit declarations of persons not parties to the case, that we need not say more.

6 7 The eighth exception is in the following words: “Plaintiff’s counsel, during the closing argument, having exhibited to the jury the Dobson family Bible, and stated that the age was there recorded, the judge should have either directed the jury that they must not consider that fact, or granted defendants’ motion to submit the Bible to the court and jury, that they might see that the date of Susie Dobson’s birth had been changed therein.” This exception, if for no other reason, cannot be sustained, because it does not correctly represent the occurrence upon which it is based. The “Case,” by which alone are we to be governed, shows that “during the argument” one of defendants’ counsel “stated to the jury that no family Bible showing the age of Susie had been produced or offered in evidence,” and that one of the counsel for plaintiff in reply “stated that the judge had not ruled that it was necessary to produce a family Bible to prove age; that there was nothing in the evidence to show that any record was made by either the father or mother of Susie Dobson ; that the family Bible was in court and could have been produced if the judge had ruled it was necessary. The Bible was not exhibited to the jury, but was taken out of-the desk drawer by Mr. Ansel at the request of Mr. Williams (both of whom were counsel for plaintiff) and was laid on the desk. It was then taken up by Mr. Orr (one of the counsel for defendants) who stated, in the presence and hearing of the jury, that the date had been altered, and he then asked the consent of Mr. Williams that the Bible be shown to the jury. Mr. Williams objected, saying the judge had ruled it out. Mr. Orr then asked that the Bible be shown to the court and jury,” which was objected to and the objection was sustained. But even if we take the representation as made in the exception to be correct, we do not see any foundation for the exception. All this occurred while the argument was in progress, and after the testimony on both sides had been closed, and the rule is well settled that a motion to receive further testimony at that stage of the case is addressed to the discretion of the Circuit Judge, with which this court will rarely interfere (Kairson v. Puckhaber, 14 S. C., 627; State v. Clyburn, 16 Id., 375, and the cases there cited), especially where, as in this case, we think -his discretion was properly exercised.

8 The ninth exception: “Because the judge’s charge clearly indicated to the jury his opinion on the facts of the case,” is too general in its terms to require consideration at our hands, as it contains no specification of any instance in which the constitutional provision is supposed to have been violated. But we may add that it seems to us that the charge is singularly free from any such exception. •

9 The tenth exception is based upon the assumption, for which we find no support in the “Case,” that the defendants pleaded separate defences, and cannot therefore be sustained. But even were it otherwise, we see nothing in the charge which would warrant the assertion that the judge “led the jury to believe that they must find for or against all of the defendants.” On the contrary, we think he correctly laid down the law as to what facts would implicate one or more of the defendants, and left it to the jury to determine whether such facts were established.

10 The eleventh exception complains of error “in charging the jury that even if the defendants did not persuade her by promises or entice her to leave' her father’s house, if they did persuade her to pursue this life of shame after she went to their house of ill-fame arid after her father came for her, she was hid by them in that wardrobe, I think there would be sufficient force in that to maintain this action.” The cases of Kirkpatrick v. Lockhart (2 Brev., 276) and Vaughan v. Rhodes (2 McCord, 227), cited by counsel for respondent, are sufficient to vindicate the instruction complained of.

11. The twelfth exception, “Because the finding of the jury was contrary to the clear preponderance of the testimony,” has been so often ruled to be insufficient as to require no further notice.

12 The thirteenth and fourteenth exceptions, based upon the allegation that the damages found by the jury are excessive, it is well settled cannot be considered by this court. Steele v. C. C. & A. R. R. Co., 11 S. C., 589; Petrie v. Railroad Company, 29 S. C., 303,

The judgment of this court is, that the judgment of the Circuit Court be affirmed.