Summary
In McClure v. Miller, 11 N.C. 133, Taylor, C. J., says of this action: "It is in substance for a wrong done to the person of the child, the loss of services is, in most cases, purely imaginary," and that "it is characterized by the sensible writer as one of the quaintest fictions in the world.
Summary of this case from Hood v. SudderthOpinion
December Term, 1825.
An action by a father for the seduction of his daughter abates by the death of the father, and cannot be revived by his executors.
CASE, brought in RUTHERFORD by Arthur McClure against the defendant for the seduction of his daughter.
Carson for appellants. (136)
Wilson, contra.
After the cause was at issue, Arthur McClure died, his death was suggested on the record, and his executors were made parties; and at the last term, when the cause was reached in order, Nash, J., who presided, upon motion of defendant's counsel to dismiss, held that by the death of Arthur McClure the suit had abated, and gave judgment accordingly, whereupon the executors appealed.
This case depends upon the construction of Laws 1805, ch. 679; the words of which, so far as they relate to this case, are, "that no action on the case for damage done to personal property shall abate by the death of either plaintiff or defendant."
This is an action on the case, brought by a father for the seduction of his daughter, and the question is, Has it abated by his death? Considering the nature of the action, and the extent of injury and suffering which usually follow the crime of seduction, I should be gratified to discover a satisfactory ground for the opinion that the action might be revived. I think the plaintiff's counsel has presented the case in the strongest point of view it admits of; yet after all it must be admitted that the action is but in form and sound for an injury done to property, but is in substance for a wrong done to the person of the child, and to obtain satisfaction for the wounded feelings of the parent. The loss of service is in most cases imaginary; for though some evidence must be given of acts of service to satisfy the form, yet in the estimate of damages the jury usually look beyond this to the injury done the child. The probata are much more extensive than the allegata, and damages may be given as a compensation for the loss which the father has sustained in being deprived of the society and comfort of his child, and for the dishonor which he receives. Hence evidence is admissible as to the circumstances of the father's family, their general good conduct, and the number of his children. Actions of this sort are brought for example sake; and although the plaintiff's loss may not amount to twenty shillings, the jury do right in giving liberal damages. 3 Wills., 19.
It is said in Bedford v. McKowl, 3 Esp., 119: "In point of form, the action only purports to give a recompense for loss of service; but we cannot shut our eyes to the fact that this is an action brought by a parent for an injury to his child. In such a case I am of opinion the jury may take into their consideration all that he can feel from the nature of the loss. They may look upon him as a parent losing the comfort as (137) well as service of his daughter, in whose virtue he can feel no consolation, and as the parent of other children whose morals may be corrupted by her example."
As the child herself has no remedy, and the offense is only indictable under peculiar circumstances, it would pass with impunity were not these forced circumstances employed to give the courts cognizance. It is characterized by a sensible writer as one of the quaintest fictions in the world that satisfaction can only be come at by the father's bringing the action against the seducer for the loss of his daughter's service during her pregnancy and nurturing. Paley Moral Phil., 200.
From these considerations it appears to me that this action must be considered as a tort done to the person, unaccompanied by any injury to personal property, and it is accordingly so classed by writers on pleadings. 2 Chitty, 268. It is, therefore, abated by the plaintiff's death.
HALL, J. The sole question here is whether this action survives to the plaintiffs or abates by the death of their intestate. There is no doubt but it abated at common law. By the act of 1799, New Rev., ch. 532, it is declared that no action of detinue, or trover, or action of trespass, where property either real or personal is in contest, and such action of trespass is not merely vindictive, shall abate, etc., by the death of either party, but the same may be revived, etc. The present action is one in form brought to recover damages for the loss of the services of the daughter; but it is in substance brought to recover damages for the disgrace and degredation of which the defendant is the author. In this view of it, which I think we must unavoidably take, it does not involve in it a contest respecting either real or personal property; and I think, too, that the damages are, legally speaking, vindictive, for they cannot be measured by any injury which property may have sustained, but are dependent altogether, under the circumstances of the case, upon a sound discretion, intended to make reparation to the injured party as far as human tribunals can do it, for complete reparation in such cases (138) is beyond their reach.
The next and only other act on the subject was passed in 1805, New Rev., ch. 679. It declares that no action of trespass vi et armis, or trespass on the case, etc., brought to recover damages done to property, either real or personal, shall abate by the death of either plaintiff or defendant, etc., but the same may be revived. If we consider this action in substance as brought to recover vindictive damages, as mentioned in the act of 1799, it is not made to survive by this latter act, for it is not brought for an injury done to either real or personal property. I, therefore, think it will not survive, but abates by the death of the plaintiff. The judgment of the Superior Court must be
HENDERSON, J., assented. Affirmed.
There is one part of the foregoing case on which no question was made, but which does not seem entirely free from doubt. The action brought was Case, notwithstanding some of the most respectable authorities hold Trespass to be the proper form of action. In Woodward v. Walton, 2 New Rep., 476, the action was trespass, and upon full argument, and after an advisari, it was held to be proper. Sir James Mansfield remarks, in delivering the opinion of the Court: "In actions like the present, as far as my recollection goes, the form of the declaration has always been in trespass vi et armis and contra pacem. I cannot distinguish between this action and an action for criminal conversation. If that be the subject of trespass, this must be so, too." It is true that Mr. Justice Buller, in Bennet v. Allcot, 2 Term, 166, said that "An action merely for debauching a man's daughter, by which he loses her service, is an action on the case." This case is commented on by Sir James Mansfield in Woodward v. Walton, and it is there said that the opinion thrown out by Justice Buller was founded on a mistake respecting two other cases, one in Burrow and the other in Lord Raymond. The case in Burrow was Postlethwait v. Parks, 3 Burr., 1878, and was trespass; and the case of Russell v. Corne, 2 Ld. Raym., 1031, is certainly rather in favor of trespass than against it. Tullidge v. Wade, 3 Wills., 13, was trespass. However, in Macfadzen v. Olivant, 6 East, 387, Lord Ellenborough seemed to consider case as the proper remedy for seducing plaintiff's wife, on the authority of Cook v. (139) Sayer, 2 Burr., 753; but the case of Cook v. Sayer is stated by Burrow to have been trespass; and in Batchelor v. Biggs, 2 Bl. Rep., 854, it is said to have been trespass. In a late case before the Court of King's Bench for seducing a daughter, Speight v. Oliviera, 2 Starkie, 493, decided in 1819, it was objected that the action should be trespass and not case, to which Abbot, C. J., replied that he would not nonsuit upon that objection.
Amid these contradictory decisions, adverting to principle, it would seem that case, and not trespass, is the proper remedy. The injury which the law contemplates as entitled to redress is consequential, for it is believed no case can be found of an action brought for debauching plaintiff's daughter without laying a per quod, and some proof of service is always required, though the courts will gladly take notice of the slightest. Simply to debauch plaintiff's daughter, without her becoming thereby pregnant, is to the feelings of the parent a wound little if any less severe than that inflicted by her becoming the mother of an illegitimate child; but as this action in its form has been well characterized as a quaint fiction to recover compensation for wounded sensibility, the fiction must be so preserved throughout that the law may preserve its principles unimpaired; and as the consequential injury in the loss of service has been resorted to, to furnish any ground for an action that consequential injury, like every other, can only be redressed by an action on the case.
It is true that Sir James Mansfield has said, "I cannot distinguish between this action and an action for criminal conversation"; but (with deference be it spoken) it would seem that however slight the difference may be as to the feelings of those who are injured, in the view of the jurist, the injuries belong to distinct classes. Lord Ellenborough, in Macfadzen v. Olivant, 6 East, 388, thus speaks of actions for criminal conversation: "The cause of action in these cases arises from the time of the injury done by the defendant, by the corruption of the body and mind of the wife; for from that time she is less qualified to perform the duties of the marriage state." The injury which the law redresses would seem, then, in these cases, to be immediate on the commission of the guilty act; and of course trespass is proper. A single act of adultery, though never manifested in its consequences, is an invasion of the husband's rights, and the law redresses it; but in actions for the seduction of a daughter, the "quaint fiction" of a loss of service seems, ab initio, to have been resorted to as the consequential injury which the law will compensate, without any reference to "the corruption of body and mind," which is the immediate injury complained of in an action for criminal conversation.
It is very correctly remarked by the plaintiff's counsel, in the argument of the foregoing case, that there is no difference in principle (140) between this action and any other for the loss of service; they must all all stand on the same ground. Suppose the case of an apprentice seduced from the service of his master by persuasion: can a case be found in which, under such circumstances, trespass will lie? No force, direct or immediate, is employed; the mere act of conversing with the apprentice is not of itself the foundation of an action, for should the servant not be prevailed on to leave his master, no injury results and no action lies; but if, being a free agent, he departs, it is his voluntary act, and his master cannot truly allege that his servant, by any force (in legal signification), has been taken away. His departure, and the master's loss of service, is the consequence of an act which in itself would not have supported an action, and the master's remedy is case. So in the case of the loss of service by seducing the daughter, her consent must have been given, and it was her voluntary act, and her father, in the forms of his suit, loses the character of a parent and appears only as a master, complaining of an injury resulting as a consequence from this act of hers which must have been voluntarily done, though at the solicitation of another.
If to this it be objected that in a case of criminal conversation the wife, who is a servant, consents, and yet her husband may have trespass, it may be answered that the case is one sui generis; the husband has, so to speak, a property in the body, a right to the personal enjoyment of his wife; for an invasion of this right the law permits him to sue as husband; he makes no complaint as master. Far different is the case of seduction of a daughter; her father has no such rights over her person as he has over the person of his wife; he makes no complaint but in the character of master, and the injury sustained by debauching his wife is such as never could be effected by the seduction of his daughter. REPORTER.
Cited: Hood v. Sudderth, 111 N.C. 220; Willeford v. Bailey, 132 N.C. 404; Snider v. Newell, ib., 615, 623.
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