But if this is to be considered as a trespass on the property, unconnected with an assault on the person, I think that it was incumbent on the plaintiff below to state an injury done to the horse, whereby the plaintiff suffered damage; that he was in consequence of the blow bruised or wounded, and unable to perform service; or that the plaintiff had been put to expense in curing of him, or the like. All the precedents of declarations for injuries done to domestic animals, as far as my recollection goes, are in that way; and I think, with good reason. Suppose a man, seeing a stranger’s horse in the street, was to strike him with a whip, or a large stick, if you please, and no injury was to ensue, could the owner of the horse maintain an action for this act? I apprehend not. For these reasons, I incline to think, that this judgment ought to be reversed.
Kirkpatrick, C. J. Concurred in the reversal.
Judgment reversed.
OBERLIN v. UPSON
Supreme Court, Ohio, January Term, 1911.
Reported in 84 Ohio State Reports, 111.
Davis, J.[[20]] Under 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 made by him. Confessedly this is not an action ex contractu upon a promise of marriage, in which the seduction might be pleaded and proved as an aggravation of damages;[[21]] but it is clearly an attempt to recover ex delicto. There is no averment of mutual promises or of an agreement to marry; and 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,[[22]] the woman is particeps criminis and hence that she cannot be heard to complain 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 upon the common law. 8 Ann. Cas. 1115, note. There is, however, no such statute in this state and the common law rule applies.
The judgment of the circuit court is Affirmed.[[23]]
Spear, C. J., Shauck, Price, and Johnson, JJ., concur.
Donahue, J., not participating.