Page images


vant, yet a very slight relation was sufficient, as it had been determined when daughters of the highest and most opulent families have been seduced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child can not be treated as a menial servant." In Mauder v. Venn, 1 Moody & M., 323 (22 Com. Law Rep.), it is held that it is not necessary to show any acts of service done by the daughter. It is enough that she lives in the father's family under such circumstances that he has a right to her services. This case is singularly like the case before us. It is said in the course of the plaintiff's proof, a difficulty occurred in making out any acts of service of the daughter. It being, however, proved that the seduction took place while she was residing with the plaintiff and forming a part of his family, Littledale, J., interposed and said that 'the proof of any acts of service was unnecessary; it was sufficient that she was living with her father, forming part of his family and liable to his control and demand; the right to the service is sufficient."" Judge Cooley thus sums up the law: "The father suing for this injury in the case of a daughter, actually at the time being a member of his household, is entitled to recover in his capacity of actual master for a loss of services consequent upon any diminished ability in the daughter to render service. That an actual loss is suffered under such circumstances the law will conclusively presume, and evidence that the daughter was accustomed to render no service will not be received." Cooley on Torts, p. 221; Pollock on Torts, p. 27.

We thus see that, while the courts have protested against the rule of law requiring the allegation of the fiction upon which the action is based, they have wisely wrought out the substantial remedy by recognition of the relation, with all of its incidents, rights and duties, of parent and child. It is difficult to conceive how a daughter, who has been seduced and


debauched as the testimony in this case shows, can be said not to have had her ability to serve her father diminished; hence, we place our decision upon the allegation and testimony in the record.

His Honor was in error in sustaining the demurrer to the evidence, and the case should have been submitted to the jury under proper instructions.

There must be a

New Trial.

WALKER, J., having been of counsel did not sit on the hearing of this case.

CLARK, C. J., concurring in result. The opinion of the court holds, quoting Rodgers' Domestic Relations, Sec. 839"It is not necessary in order for a parent to maintain an action for seduction of his daughter, that he prove actual services or the loss thereof." There are numerous authorities to maintain that proposition. It follows therefore that under our Code, Sec. 233 (2), loss of services need not be averred, except when such loss is an element of damages. That section provides that the complaint shall contain "a plain and concise statement of the facts constituting a cause of action," hence none other should be stated. Nothing now needs to be averred which it is not necessary to prove. It can serve no purpose to make an unnecessary or untrue averment in any pleading under The Code and a fortiori it can not be a fatal defect to fail to make such averment.

The whole subject is summed up with full citation of authorities in the American & English Encyclopedia in the article "Seduction." It appears therefrom that the real causes of action when brought by a father for the seduction of his daughter are the wrong and injury done him in the ruin of his daughter, his wounded feelings and sense of dishonor, the stain and grief brought upon his family; and the


jury can add exemplary damages as punishment to the defendant. Of course, in addition there can be compensation for loss of services, if any. The matter is thus summed up in a review of many authorities, but is stated in none better than in Russell v. Chambers, 31 Minn., 54: "As to the damages the parent may recover the loss of service is a comparatively unimportant part, and he is entitled to recover for his wounded feelings and sense of dishonor, loss of the society of a virtuous daughter, and in short, all that a father can feel from the nature of the loss." In Lawyer v. Fritcher, 54 Hun, 591; 7 N. Y. Supp., 912, Landon, J., says: "This artifice is properly termed a legal fiction, the real ground of recovery being for damages for the outrage perpetrated."

So entirely is it an action for punitive damages, for the tort, the wrong and injury and humiliation inflicted, that it is said in Morgan v. Rose, 74 Mo., 318: "It is believed that no case can be found in the books where the verdict in an action like this has been set aside upon the sole ground of awarding excessive damages." In McClure v. Miller, 11 N. C., 133, it was held that the action was in truth to recover vindictive damages "for the disgrace and degradation" caused by the defendant, and hence abated on the death of the plaintiff (the father), which would not be the case if it were an action for loss of services.

In many States, by statute it has been made unnecessary to allege or prove loss of services, when such loss is a fiction (as it is in most cases) and also authorizing the woman to bring the action herself when of age. Stoudt v. Shepherd, 73 Mich., 589, and other cases cited in Am. & Eng. Enc., supra. In this State and others in which fictions have been abolished by The Code, the same result has been attained thereby. In Hood v. Sudderth, 111 N. C., at p. 221, it was held that The Code had abolished "the fiction of lost services in an action for seduction which henceforward became upon a plain


statement of the facts constituting a cause of action' in legal construction, an action for exemplary damages. It would be singular, to say the least, to retain the fiction that the action is based on the loss of services and not for the wrong itself, when the Legislature has made the conduct complained of a felony." The same case held also that under another section of The Code (177) the woman, if of age, being the party in interest, can bring the action.

In Willeford v. Bailey, at this term, it is again said: "The action is really for the humiliation, the mental suffering, and anguish inflicted by the seducer and for punishment to the seducer." In Scarlett v. Norwood, 115 N. C., 285, and Abbott v. Hancock, 123 N. C., 99, it was held that the jury can allow the parent "punitive damages for the wrong done him in his affections and the destruction of his household." The action is really based, not on the relation of master and servant, which was a fiction, but on that of parent and child (Terry v. Hutchinson, L. R., 3 Q. B., 599) and hence when the father is dead, it could be brought by the mother. Abbott v. Hancock, supra. By virtue of the parental relation, there is not necessarily any loss of services, and failure to allege or to prove, if alleged, that insignificant element of damages does not deprive the parent of proving and recovering for the injury really sustained.

When the action is brought by the woman herself, of course there can be no allegation or proof of loss of services by the father. When the female is under age, there are decisions (Smith v. Richard, 29 Conn., 232; McCoy v. Trucks, 121 Ind., 292; Stevenson v. Belknap, 6 Iowa, 97; 71 Am. Dec., 392) which hold that the girl herself may also maintain an action for the injury to herself, the action of the father (or mother) being for the injury to the head of the family upon whom, in public estimation, rests the responsibility for the conduct of the children. In actions by the father (or mother


when the father is dead) it is hence admissible to show in mitigation of damages carelessness in exposing the daughter to the danger (1 Big. Torts, 151) or in bar of the action that he assented or connived at the seduction (Rodgers Dom. Rel., Sec. 839), but the father's conduct in this respect could not be set up in an action brought by the woman herself. Cooley on Torts (2 Ed.), 276. In Scarlett v. Norwood, supra, at p. 286, it was left an open question whether the infant daughter might not also bring an action for the injury done to herself, which is something distinct from the wrong and humiliation brought upon the parent.

A fiction is defined as a "false averment on the part of the plaintiff which the defendant is not allowed to traverse, the object being to give the court jurisdiction." Maine Anc. Law. 25; Best on Ev., 419, cited by Black Law Dict. "Fiction." As it is "not necessary to prove loss of services" it is not necessary to aver what is not a part of the cause of action, under the reformed procedure which, abolishing fictions and subterfuges, requires to be averred and proved that which is the true ground of the plaintiff's action, and that only. When there has been actual loss of services, the complaint can so allege; but when there has been no real loss thereby, the plaintiff is not required to aver such loss, much less to swear to it in a verified complaint. He should set out the truth, the facts which constitute the real basis of his demand for damages and upon which he expects to obtain a verdict. In Anthony v. Norton, 60 Kan., 341 (72 Am. St. Rep., 360); 44 L. R. A., 757, Doster, C. J., holds in a very able opinion that, under a statute similar to ours, the courts are no longer driven to resort to the fiction, the subterfuge, that there has been a loss of services when there has been none or it is of imponderable value, and that the action of seduction "can be maintained on the bare relation of parent and child alone.” This is straightforward and in accordance with the spirit of

Vol. 132-40

« PreviousContinue »