Scottish Court of Session Decisions

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Cite as: [1919] SLR 482, [1919] ScotLR 482

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SCOTTISH_SLR_Court_of_Session

Page: 482↓

Court of Session Inner House First Division.

Thursday, June 12. 1919.

[ Lord Anderson, Ordinary.

56 SLR 482

Reid

v.

Macfarlane.

Subject_1Reparation
Subject_2Seduction
Subject_3Master and Servant
Subject_4Connection Obtained through Ascendancy of Master.
Facts:

In an action of damages for seduction the evidence was to the effect that the pursuer, a girl of about eighteen, was employed as a domestic servant by the defender; she was trained by the defender's wife, having been over four years in the defender's service, and was trusted by the defender and his wife. Two acts of connection were proved. On the first occasion the defender, in spite of the pursuer's struggles and while she was in a state of bewilderment, had connection with her; on the second occasion the defender came upon
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the pursuer while she was asleep. Held, on a motion for a rule, that there was evidence upon which the jury were entitled to draw the inference that the defender effected his purpose in consequence of his having a dominating ascendancy over the pursuer as his servant, and the motion for a rule refused.

Headnote:

Chrissy Reid, pursuer, brought an action against John Macfarlane, defender, concluding for £500 damages for seduction.

The facts of the case appear from the following narrative which is taken from the opinion of Lord Mackenzie:—“The history of the case is that the pursuer at the age of fourteen entered the employment of the defender at Whitsunday 1913 as a domestic servant. She continued in service with him and his wife down to December 1917. The defender admits ‘that the pursuer was trusted by the defender and his wife. She was trained by the defender's wife and was a good servant.’ That shows the relations which subsisted between this girl and her master down to October 1917. The pursuer avers in condescendence 5 that on 25th October 1917 the defender had connection with her after using certain familiarities towards her. Her averment is that she ‘struggled to get free from the defender's embraces, but instead of releasing her the defender rose from his chair, placed the pursuer in it, and while she was in a state of complete bewilderment and before she was able to protest effectively he had connection with her.’ And then she says that he endeavoured to comfort her—she being in a state of agitation and anxiety—‘by the assurance that what he had done would do the pursuer no harm.’ The next occasion on which there was an act of connection was three nights afterwards, when the defender entered the pursuer's room whilst she was asleep, and when, she alleges, she ‘was scarcely conscious of the defender's motives or actions until it was too late effectually to prevent him having connection, and she was again completely taken by surprise.’ As the result of these acts of connection the pursuer gave birth to a female child on 28th July 1918.”

The pursuer pleaded—“1. The defender having seduced the pursuer as condescended on is liable in reparation to her therefor.”

The case was tried before Lord Anderson and a jury.

On 22nd May 1919 the jury found for the pursuer and assessed the damages at £350.

The defender moved for a rule upon the pursuer to show cause why a new trial should not be allowed, and argued—There was evidence before the jury upon which they were entitled to hold that the defender had had connection with the pursuer, but that connection had not been obtained by way of seduction. It was essential to seduction that something of the nature of fraudulent misrepresentation must be made to cause the woman to surrender herself; short of that there must be a relation of real ascendancy between the seducer and the person seduced— Gray v. Miller, 1901, 39 S.L.R. 256; Brown v. Harvey, 1907 S.C. 588, 44 S.L.R. 400; Murray v. Fraser, 1916 S.C. 623, 53 S.L.R. 467. In the present case there was no evidence of fraud or of real ascendancy.

Judgment:

Lord Mackenzie—This case has been presented to us on the footing that even on the assumption there was connection as averred, there is no legal evidence from which the jury were entitled to infer that the defender had seduced the pursuer. I am unable to take that view, and am of opinion that there was evidence upon which the jury were entitled to find that the circumstances under which the defender had connection with the pursuer amounted to seduction in law. … …

Now it is no doubt true, as has been pointed out by Lord President Dunedin in Cathcart v. Brown, 7 F. 951, 42 S.L.R. 718, that the word “seduced” must be construed in the legal and not in the popular sense. But it is settled that seduction may be effected by the aid of such dominating influence as that of a master over his servant, and if in the present case the pursuer did not give her consent it was legitimate for the jury to draw the inference that the reason why the master effected his purpose was because he and his servant did not meet on equal terms.

It was represented to us in argument that dominating ascendancy must be proved as a matter of fact. I cannot assent to that view. I think that a jury having before them the pursuer and the defender, and the whole history of their relations, are entitled to draw the inference that the master effected his purpose in consequence of his having a dominating ascendancy over his servant.

In condescendence 12 the pursuer avers—“The defender in having connection with the pursuer seduced her. In consequence of her position in the house partly as a young innocent servant, and partly as the object of special favour and solicitude on the part of the defender, who treated her as a child, he won her complete trust and confidence. Her feelings towards him on that account, and in respect of his age relatively to hers, were those of a daughter, and she had no thought of being on guard against any attack on her chastity by him. He had acquired a complete ascendancy over her from the said relationship. He took advantage of her unguarded innocence, and by taking her by surprise and using his said ascendancy he succeeded in having connection with her and thus seduced her.” Now that sets out what, I think, from the whole facts as stated to us was the view that the jury were legitimately entitled to take.

The defender went into the box and apparently denied the whole story. The jury plainly did not believe him, and they were entitled to take the view stated by the pursuer in her evidence, that she was not a consenting party, and accordingly they were in my opinion justified upon the evidence in coming to the conclusion that not only the paternity but also the seduction had been proved.

In these circumstances I am of opinion that the motion for a rule should be refused.

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Lord Skerrington—It was admitted by counsel that there was evidence which entitled the jury to come to the conclusion that sexual intercourse had taken place on the occasions in question between the pursuer and her master, the defender. The defender placed himself in a position of disadvantage with the jury because he denied that fundamental fact, and the jury disbelieved him. As the jury believed the pursuer and disbelieved the defender, I think that they were entitled to take the view that the sexual intercourse had been brought about substantially in the way and manner deponed to by the pursuer—I mean, that she was not a willing participant in this act of immorality. That view was, I think, corroborated by the girl's admitted previous good character and behaviour in that household and by the fact of her youth and innocence.

If the jury came to the conclusion that this previously good girl allowed sexual intercourse to take place between herself and her master, they were entitled to ask themselves how that happened. And if they were satisfied that it came about because the master was the aggressor, they were, in my view, entitled to draw the inference that the act of sexual intercourse would not have been permitted by this girl if the aggressor had been a stranger, but that she did permit it because he was her protector in that household. He was the master of the household, he was entitled, generally speaking, to do as he liked in the house, and the girl was at a disadvantage when resisting his wishes.

To make out seduction in the legal sense it must be established that the parties did not meet on equal terms, and that the woman was unfairly treated by the defender. What has to be negatived is the prima facie view that where a man and a woman commit an act of immorality both are free and willing consenters. That view must be displaced by the pursuer, and the burden of proof at the beginning undoubtedly lies on her. On the evidence in this case I fail to see why a reasonable jury might not draw the inference that that burden of proof had been satisfactorily discharged.

Lord Cullen—I agree. I think if the jury took the view that the girl surrendered herself unwillingly, they were entitled in the circumstances to draw the inference that the master did use his influence over her to obtain connection.

Lord Anderson—I entirely agree. I desire to add that I am quite satisfied with the jury's verdict, and am of opinion that the pursuer proved her case.

The Lord President was absent.

The Court refused the motion for a rule.

Counsel:

Counsel for the Pursuer— Macphail, K.C.— A. M. Stuart. Agents— Menzies, Bruce Low, & Thomson, W.S.

Counsel for the Defender— Watt, K.C.— Burnet. Agents— Mackay & Hay, W.S.
1919