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COBLE v. HUFFINES

dictment, and that in said action the following order and judgment were rendered: "In the above case the court finds as a fact that the prosecution is frivolous, malicious and not required for the public interest; and the prosecutor D. R. Huffines being present in court, he is hereby marked as prosecutor, and it is adjudged that he be, and he is hereby taxed with the costs of the action, and is committed to the custody of the sheriff of Guilford County until the said costs of action are paid." This evidence should have been admitted. The clerk of the Superior Court testified that these papers were among the records of his office; that he knew in whose hand writing the warrant and bill of indictment No. 88 and also Bill of indictment No. 103, were; that all of them were in the handwriting of J. A. Barringer, who was the attorney of the defendant Huffines in this case, and it was admitted that Mr. Barringer was employed by Huffines and prosecuted Coble in the above criminal cases. We do not mean to say that the adjudication by the court that the prosecution on the second indictment was frivolous and malicious, is conclusive evidence of malice or want of probable cause in the present action, but that it is competent evidence to be considered by the jury in arriving at their verdict. Taken in connection with the second indictment for the same transaction, it strongly tends to prove malice, if nothing more. In Hinson v. Powell, 109 N. C., 534, this court held, quoting the syllabus: "Although the defendant had probable cause for the first prosecution, yet if he instituted the second for the same offense and without additional evidence to that produced on the first, there was an absence of probable cause, which prima facie established malice as to that charge unless rebutted." It may be that the facts. in the case at bar are not sufficiently identical with those in Hinson v. Powell, to bring it within the full force of that opinion, but this can be better determined upon the evidence.

Vol. 132-26

WILLEFORD v. BAILEY.

adduced upon the new trial. For the exclusion of evidence and erroneous intimation of his Honor as above set forth, there must be a

New Trial.

WILLEFORD v. BAILEY.

(Filed April 21, 1903.)

1. DEPOSITIONS-Irregularities-Exceptions and Objections.

Objections to irregularities in the taking of a deposition must be made in writing and passed on before trial.

2. DEPOSITIONS-Irregularity-Waiver-Appearance.

An appearance before a commissioner to take a deposition waives any irregularity of the commission.

3. DEPOSITIONS-Witnesses-The Code, Sec. 1358, Subsec. 4.

The deposition of a witness adjudged to be unable to talk or remain in court is admissible in evidence.

4. SEDUCTION-Damages-Instructions-Infants.

In an action by a father for the seduction of his minor daughter, an instruction that damages could be allowed the father only for a wrong to himself, was properly refused.

5. DAMAGES-Exemplary Damages-Seduction-Instructions.

The instruction of the trial judge as to exemplary damages in this case by a father for the seduction of his minor daughter, is not

erroneous.

6. JURY-Trial-Judge-Practice.

It is not error, though an unusual practice, for the trial judge, in the absence of counsel, to go to the jury room and inquire whether the jury were likely to agree.

ACTION by T. F. Williford against P. S. Bailey, heard by Judge W. S. O'B. Robinson and a jury, at October Term, 1902, of the Superior Court of UNION County. From a judgment for the plaintiff the defendant appealed.

WILLEFORD v. BAILEY.

Redwine & Stack, for the plaintiff.

Armfield & Williams, and Adams & Jerome, for the defendant.

CLARK, C. J. This is an action for seduction of plaintiff's 17 year old daughter by the defendant. The defendant noted 34 exceptions on the trial which he reduced to 28 in making out case on appeal. In the brief, upon further reflection, his counsel very properly abandoned 14 of these. Of the remaining fourteen it is only necessary to consider assignments of error Nos. 12, 21, 24, 26, and 28, for the others are without merit and need no discussion.

No. 12 was to the admission of a deposition on the ground that the witness was a resident of the County, that no commissioner was named in the notice and no notice was given before the appointment of the commissioner. If there be any merit in these objections the objection should have been made in writing and should have been passed upon before the trial began. Davenport v. McKee, 98 N. C., 500; Brittain v. Hitchcock, 127 N. C., 400. Besides the objections were cured by the defendant appearing before the commissioner and cross examining the witnesses, without taking any exception to the regularity of the commission. Barnhardt v. Smith, 86 N. C., 473; Davison v. Land Co., 118 N. C., 368. The witness being adjudged unable to talk and physically unable to remain in court the deposition was admissible. The Code, Sec. 1358 (4). The defendant himself introduced the testimony of same witness, taken at another time which was substantially to the same purport.

Assignment of error No. 21 was to the refusal of the following prayer for instruction upon the measure of damages: "You can allow the plaintiff none for wrong to his daughter but only for wrong to himself."

The wrong done to the daughter is the wrong done to the

WILLEFORD v. BAILEY.

plaintiff. It is the very essence and basis of the plaintiff's cause of action. In McClure v. Miller, 11 N. C., 136, it is said (quoting almost verbatim from Lord Eldon in Bedford v. McKowl, 3 Esp., 119): "We can not shut our eyes to the fact that this is an action brought by a parent for an injury to the child." In those cases, as in this, the action was brought by the father. The allegation of loss of services and personal injury is simply an outworn fiction. The action. is really for the humiliation, the mental suffering and anguish inflicted by the seducer, and for punishment to the seducer which is brought by the father still if the girl is an infant (Scarlett v. Norwood, 115 N. C., 285; Abbott v. Hancock, 123 N. C., 99) in which it is held that the jury can allow him "punitive damages for the wrong done him in his affections and the destruction of his household," and this is necessarily based upon the wrong done him through her by the deceit and fraud in accomplishing the seduction of the daughter. In Hood v. Sudderth, 111 N. C., 215, the court held that if the female was of age she could maintain the action in her own name (a ruling since followed in the decisions in Missouri, Arkansas and other States) for there is, in this last case no foundation whatever for the flimsy fiction of the loss of services. The court certainly could not have given the last part of the prayer "only for wrong to himself," and part of the prayer being improper, the whole may be rejected. State v. Neal, 120 N. C., 613; 58 Am. St. Rep., The purport of the prayer was that the father could recover only for "loss of services by him," which was clearly a misconception of the purpose of the action.

810.

Assignment of error No. 24. The court was merely giving a contention of plaintiff's counsel, in summing up that if the girl was not with the defendant in Union, S. C., as she testified, the defendant could have introduced evidence to show that it was false. There was no eror in this.

WILLEFORD v. BAILEY.

Assignment of error No. 26. The court charged the jury that if they "should answer the first four issues 'Yes,' should find from the evidence and the greater weight thereof, that the defendant enticed and persuaded plaintiff's daughter against the wishes of her father, to leave her home and go to South Carolina for the purpose of seducing her, and that he harbored and detained her in South Carolina, and while so harboring her, that he seduced and debauched plaintiff's daughter, and if they should further find from the evidence that plaintiff's daughter was an innocent and virtuous woman, of good character, before she left home, and that the defendant is a man of considerable wealth, then they might give plaintiff punitive damages, and in law no verdict they would render would be excessive, for the loss of virtue and the destruction of character are matters that can not be measured in dollars and cents, and the amount of 'smart money' which they might give was entirely with them and within their discretion. That if they should allow exemplary damages, the amount should be regulated by all the evidence and circumstances in the case and should be based on the character and conduct of the parties to the action, the character of the wrong done-if they should find from the evidence that defendant did entice away and seduce plaintiff's daughter on the conduct and standing of plaintiff and his family, the financial circumstances of the defendant and on all the facts and circumstances connected with the whole transaction. That the law left the whole question of the amount of damages to their discretion, but that they should exercise that discretion intelligently and not arbitrarily, nor should they act from prejudice or other improper motive, but that they should render such verdict as should be warranted by the evidence in the case." In this connection the court also charged that "As to smart money, the amount the jury might

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