Opinion
(December Term, 1844.)
1. A father can maintain either an action on the case or an action of trespass for the seduction of his daughter living with him or being under his control.
2. Nor, where pregnancy is a consequence of the seduction, is it necessary for the father to wait till the birth of the child to entitle him to full damages.
3. An actual contract for services between the father and his daughter, though she be of age, is not required to be proved. It is presumed from any, the slightest, services rendered by her in the family.
4. The action rests upon the assumed relation of master and servant, and not upon that of father and child.
APPEAL from YANCEY Fall Term, 1844; Battle, J.
Francis for plaintiff. (19)
No counsel for defendants.
This was an action on the case for the seduction of the plaintiff's daughter. For the plaintiff it was proved by his daughter that she was seduced by the defendant some time in the month of September, 1841; that pregnancy was the consequence of this seduction, and that on 11 June following she bore a child; that at the time of the seduction she was living with her father and performing service in his family, and continued to do so until the March following, when she left (17) her father's house and went to live with her grandmother; that she remained with her grandmother until some time after the birth of her child, when she returned to live in her father's family; that about five or six weeks after she became pregnant her health was somewhat impaired in consequence thereof, and she became less able to perform the services usually required of her, and that just before she left her father's family she became altogether unable to discharge some of these services, though the lighter ones, such as knitting, etc., she could perform as well as usual. She further testified that she became 21 years of age in November, 1841. The writ was issued 31 March, 1842.
The court instructed the jury that before the daughter became of age the action might be sustained by the father in his paternal character for the loss of the services of the daughter, and that after she became of full age it must be sustained in the character of master for the loss of the services of his servant; that in this action the loss of some service must be proved in order to entitle the plaintiff to recover any damages at all; but if the evidence satisfied them of the loss of any services of the daughter, as daughter or servant, in consequence of the defendant's act of seduction, then they might take into their consideration the anguish and disgrace brought upon the plaintiff and his family, in order to enhance the damages.
The jury found a verdict for the plaintiff. The defendant moved for a new trial (1) Because the action ought to have been trespass vi et armis, and not case; (2) Because the action could not be maintained before the birth of the child; (3) Because the action could not be maintained without proof of an actual contract for services after the daughter became of age. The court overruled all the objections because it deemed them unfounded in law, and the last for the additional reason that it had not been so contended for in the argument of the (18) defendant's counsel, and no specific instructions to that effect had been prayed.
Judgment being rendered for the plaintiff, the defendant appealed to the Supreme Court.
Three objections were urged before the Superior Court. The first because the action ought to have been trespass and not case; the second because the action could not be sustained before the birth of the child; and, thirdly, because the action could not be sustained without proof of an actual contract for services after the daughter became of age. These objections were overruled by the presiding judge, and we think very properly.
It is unnecessary to point out the distinguishing marks between the actions of trespass and case, and the necessity, in ordinary cases, of adopting the form of action appropriate to the cause of complaint. It is admitted by text-writers, and decided in many cases, that the plaintiff in an action for seduction may adopt either form, at his option. He may either bring trespass for the direct injury, laying it with a per quod servitium amisit, or in case for the consequential damage. 3 Stephens N. P., 2351, 2354. That trespass may be brought is shown by the cases of Woodward v. Walton, 2 N. R., 476; Tulledge v. Wade, 3 Wilson, 18 — and that case may, by Dean v. Peel, 3 East, 43; Heavitt v. Prime, 21 Wend., 79; Martin v. Payne, 9 Johns., 387; Speight v. Olivera, 3 Stark., 435, by Abbott, C. J.; Holloway v. Abell, 32 Eng. Com. L., 615, and by many other cases. In Chamberlain v. Hazelwood, 7 Dow. Par. cases, cited in 3 Stephens N. P., 2353, Mr. Baron Parker declares that, (20) although there may have been no direct adjudication on the subject, it had been the constant practice with pleaders to declare it either way. These authorities abundantly show that the action was properly brought in case.
The second exception is equally as untenable as the first. It assumes that the only consequential injury to the father of which he has a right to complain consists in the loss of the services of his daughter and the expenses he may incur during her confinement. This certainly is not so. If it were so, and pregnancy did not result from the seduction, the father would have no action. All the authorities show that the relation between master and servant between the parent and the child is but a figment of the law, to open to him the door for the redress of his injury. It is the substratum on which the action is built. The actual damage which he has sustained in many if not most cases exists only in the humanity of the law which seeks to vindicate his outraged feelings. He comes into the court as a master; he goes before the jury as a father. He must, indeed, show that his child stood to him in the relation of a servant; and it matters not how trivial the services she rendered, though it may have consisted but in pouring out his tea, he is entitled to his action. Carr v. Clark, 2 Chitty, 261; Mann v. Barrett, 6 Esp., 23. So it has been decided that the father need not show any actual service rendered if at the time of the seduction she lived with her father or is under his control. Maunder v. Nun, M. and M., 323, cited 3 Stephens N. P., Mann v. Barrett, and Holloway v. Abell. Upon this objection, however, there is an express authority that the father can maintain the action before the confinement of his daughter, even though he has turned her out of doors, per Lord Denman in Joseph v. Cowen, cited 2 Steph. N. P., 2354, and Roscoe on Ev., 483. Both, then, upon authority and reason the objection cannot be sustained.
So neither can the third. In no case is an actual contract between the father and the daughter necessary to maintain the action. Before the child attains the age of 21 years the law gives the father dominion over her, and, after, the law presumes the contract when the daughter is so situated as to render services to the father or is under his (21) control; and this it does for the wisest and most benevolent of purposes: to preserve his domestic peace by guarding from the spoiler the purity and innocence of his child. If this were not so in those cases where the degradation would carry the largest portion of anguish and distress the unfortunate parent would be without redress if his daughter were over 21 years of age. That the law is not as the defendant contends is shown by many of the cases cited upon the other points. To these may be added Bennet v. Alcot, 2 Term, 166; Nicholson v. Stryker, 10 Johns., 115, and Morgan v. Dawes, 4 Cow., 417. In this case the daughter lived in her father's house at the time of the seduction, under his control and in the performance of actual services.
Here this opinion might be closed but for another part of the charge.
The presiding judge told the jury that before the daughter came of age the action might be sustained in his paternal character for the loss of her services, and after she became of full age it might be sustained by him as master, for services lost. The distinction is new to us. We have been able to find no case in which it is recognized. On the contrary, the whole history of the action clearly shows that it rests upon the assumed or actual relation of master and servant, and that as well before the daughter has attained 21 as after. We notice this part of the charge, not because it at all enters into the decision of this case as presented to us by the parties, but because we are not willing it should be supposed we acquiesce in its correctness. The defendant did not except to it, and in Ring v. King, 20 N.C. 168, the Court say: "The rule of this Court is to regard as nearly as we can the case made by the judge in the light of a bill of exceptions for specified errors," and none others are considered here unless they appear upon the record strictly so called. The only way in which it could have been important in this case was as it might have affected the damages; and the defendant's not excepting is strong evidence that it did not affect him injuriously.
We see no error in the opinion of the presiding judge in the (22) points excepted to.
PER CURIAM. No error.
Cited: Kinney v. Laughenour, 89 N.C. 368; Snider v. Newell, 132 N.C. 615, 616.