Steward v. Gold Medal Shows

*584 THOMAS, Justice. The suit is by a mother for damages for -enticing and carrying away her minor son. It is alleged in the complaint that the plaintiff is the mother o-f a boy of the age of fourteen years; that she is entitled to his care, custody, control, company and earnings, and has been put to great concern, worry, fear, humiliation, and vexation as the proximate loss of her minor child,— all to her damage. Plaintiff’s contention is that on or about October 4, 1941, the defendant finishing a week’s engagement in Tuscaloosa, left for Luverne and at the time of leaving Tuscaloosa, he or some of his agents, servants or employees, without the consent of plaintiff, enticed or otherwise procured appellant’s minor son to accompany the show to Luverne. It is further averred in her pleading that she did not know where the son was until he later returned and that his unexplained absence caused her great concern, worry, fear, humiliation and vexation as a direct and proximate cause of the loss of said minor child; and that during his absence she was deprived of the care, custody, control, company and earnings of her minor son, all to her damage, for which she sues. A preliminary matter was presented by defendant’s plea to the effect that a similar suit between the parties set up the same subject matter and a judgment in such pending suit in another jurisdiction would be a bar to the above-styled cause. Ford v. Bowden, 243 Ala. 334, 9 So.2d 906. The judgment entry on the plea was to the effect that the court “finds that no former suit was pending at the time of the filing of this suit.” Demurrers to the amended complaint were overruled and the defendant pleaded in short by consent, the general issue with leave to offer in evidence legal proof of any matter in defense which could be well pleaded. Defendant’s defense was that neither he nor any of his agents, servants or employees had anything to do with said minor leaving Tuscaloosa; that they did not know him; had not given him employment with the show; and that he had had nothing whatever to do with him. At the beginning of the trial the court granted a motion for defendant, striking from the complaint all allegations of damages based on plaintiff’s concern, worry, fear, humiliation and vexation, by reason of the absence of the child. The judgment entry shows that said motion was considered by the court and “the court is of the opinion that the same is well taken and should be and is hereby granted.” The plaintiff duly excepted to said action of the court. The plaintiff with leave of the court amended her complaint by striking “Gold Medal Shows, whose name is otherwise unknown,” as party defendant. Issue being, joined upon defendant’s plea of the general issue in short by consent, etc., there was a verdict for the defendant. The record proper further shows a motion duly made for a new trial and among other grounds it was stated that the court erred in granting defendant’s motion to strike from plaintiff’s complaint all reference to her claim for damages for mental anguish, worry, anxiety, and for upsetting her nervous system, etc. Said motion being called to the attention of the court on March 28th was set down for hearing, and on that day was continued to March 31st, when the motion was considered and the order and judgment of the court was that plaintiff’s motion to set aside the verdict of the jury theretofore rendered in the cause against the plaintiff and the judgment thereon in favor of defendant and to grant the plaintiff a new trial was overruled. The plaintiff then and there in open court duly and legally excepted to the action of the court in overruling said motion. There was no other evidence offered on the motion for a new trial than was within the breast of the court. The foregoing appears in the record proper and the motion and ruling thereon likewise appear as a part of the bill of exceptions duly presented to and signed by the presiding judge with certificate of service of copy thereof on defendant’s attorneys of record. The assignments of error contain many alleged errors presented for review, the first of which are that the court erred in granting defendant’s motion to strike from plaintiff’s complaint counts one and two, as follows: “Plaintiff has been put to great concern, worry, fear, harm and vexation,” etc., and “the court erred in overruling motion for a new trial.” *585 The important question for consideration is the granting of the motion to strike the matter indicated from the complaint and the denial of plaintiff’s right of recovery of damages for mental suffering, anxiety, etc., in an action by a parent having the possession and care of the minor child; for enticing away said minor child. Several decisions of this court are for consideration by way of analogy. In Shannon v. Sims, 146 Ala. 673, 40 So. 574, it was held that mental suffering is an element of damages in an action for false imprisonment. In Walling v. Fields, 209 Ala. 389, 96 So. 471, an action for false imprisonment and malicious prosecution, it. was held the plaintiff may prove at the time of his arrest he was married and had a family; was taken from them by the arrest and imprisonment; that such action deprived him of the society of his wife and children while in jail; and that circumstances and facts surrounding the plaintiff under arrest and in prison can be given whereupon the jury may infer the circumstances, but plaintiff cannot testify directly that he suffered mental pain. In Standard Oil Co. v. Humphries, 209 Ala. 493, 96 So. 629, 631, Mr. Justice Sayre, writing for the court, declared that damages for mental suffering when alleged are recoverable; that plaintiff should not have been allowed to state that he suffered mental anguish, that he was nervous or frightened; that such inference is for the jury, “Upon the whole evidence in the particular case, to say whether plaintiff suffered mental pain, including, as we think, nervousness and fright.” Michie’s Digest, § 45, p. 639. In Florence Hotel Co. v. Bumpus, 194 Ala. 69, 69 So. 566, Ann.Cas.1918E, 252, in an action by a guest at a hotel, under a complaint showing wrongful invasion of plaintiff’s room, violation of his right of privacy and humiliation suffered on account of removal of his effects therefrom, it was held that damages may be awarded for humiliation and indignation. The case of Louisville & N. R. Co. v. Hine, 121 Ala. 234, 25 So. 857, cited with approval, is to the effect that humiliation and indignation if suffered by him (plaintiff) are also elements of actual damage arising from a sense of injury and outraged rights engendered by ejection alone from his room, without regard to the manner in which it was effected and though done through mistake. In Parker v. Newman, 200 Ala. 103, 75 So. 479, many general authorities are cited to the effect that damages were recoverable for alienation of affection. In Long v. Booe, 106 Ala. 570, 571, 17 So. 716, the action was likewise for the alienation of the wife’s affection, and it was held that where a claim for damages is for the loss of a wife’s services, the term “services” does not necessarily or automatically involve a loss measurable by pecuniary standards of value, such as obtain where the master is deprived of the labor of his servant or the father is deprived of the “help of his child”; but the term implies whatever he had, assistance, comfort and society, which the wife would be expected to render or bestow upon her husband under the circumstances to surround them in the condition and station of life that may be presented. In Sloss-Sheffield S. & I. Co. v. Devaney, 7 Ala.App. 457, 60 So. 990, 991, in a case for malicious prosecution, Judge Pelham cites with approval Stewart v. Blair, 171 Ala. 147, 54 So. 506, Ann.Cas.1913A, 925, to the effect that it was proper to permit the plaintiff to show that he was a married man, had a family of children and a daughter 18 years old, “for the purpose of allowing the jury to properly estimate the plaintiff’s wounded pride and feelings,” as an element of damage which was specifically claimed in the complaint. In Alabama Fuel & Iron Co. v. Baladoni, 15 Ala.App. 316, 73 So. 205, it was held: “Damages are recoverable for physical injury directly caused by fright which was p'roximately caused by defendant’s negligence. * * * “Damages: Fright: Public Policy.— Where it clearly appears that an injury proximately resulted from fright wrongfully caused by an employee of defendant, plaintiff will not be denied recovery on the ground of expediency or public policy because of the danger of opening the door to fictitious litigation easily simulated.” This was on authority of Spearman v. McCrary, 4 Ala.App. 473, 58 So. 927, and Ex parte Spearman, 177 Ala. 672, 58 So. 1038. See, also, cases from this court noted in 7 Ala.Digest, Damages, p. 411, ©=» 52, touching damages for fright and mental suffering as proximate and natural consequences of trespass or negligence. *586 The case of Dawsey v. Newton, post, p. 661, 15 So.2d 271, was for the trespass of cutting two oak trees and the court sustained a judgment for the statutory penalty for two trees and $35 damages for mental suffering and wounded feelings for the destruction of the two trees. There was analogy to the damages sought to be recovered in the complaint as originally formed, which is in accord with justice and common sense that should be applied and obtain as between the parties in this case. The foregoing authorities furnish analogy for the right of complainant to declare for and recover the several elements of damages claimed in her complaint. This was denied by the sustaining of the motion to strike such claim from the several counts of the complaint. An illuminating discussion of the question is found in Pickle v. Page, 252 N.Y. 474, 169 N.E. 650, 72 A.L.R. 842, holding that loss of service need not be alleged or proven in an action for the abduction of an immature child from the custody of lawful guardians, parents or foster parents; that damages for wounded feelings and punitive damages are recoverable in an action by a grandfather and foster father for the abduction of an immature child. There are notes to this opinion on the two rules theretofore prevailing in the United States, the old and the new rules, the former obtaining in the states of Iowa, Kentucky, Maine, Maryland, Massachusetts, New Jersey, Ohio, Pennsylvania, Washington, England and Canada. Under the “old rule” the holdings are to the effect that the fiction of the loss of services is essential to an action for abduction of a child and without it the action must fail; that the services may be constructive as well as actual. Under the “modern rule” as it is termed, it is held that the fiction of the loss of service is not essential to an action for the abduction of a child. This holding is well stated by the decisions of the Supreme Courts of Georgia, Indiana, Nebraska, North Carolina, South Carolina and West Virginia. Under the many decisions cited in Selman v. Barnett, 4 Ga.App. 375, 61 S.E. 501, 502, in which there is the just observation that the plaintiff has the right to the custody and control of the child and the “law presumes general damages from such a wrong” depriving her thereof; and that the plaintiff says she is entitled to “punitive damages.” “In any event the plaintiff is entitled to recover, for the physical invasion of her right of possession as a parent, * * * and under the allegations of this petition, from which it appears that the violation as alleged is flagrant, the jury would have the right to punish the offender in exemplary damages”, and on a proper petition the value of the services of the child. In Tavlinsky v. Ringling Bros. Circus, 113 Neb. 632, 204 N.W. 388, the holding was that parents have a right to the care, custody, services and companionship of their minor children, and when they are wrongfully deprived thereof by another, they have a right of action therefor, even in a case where the child has sought employment of the defendant circus company. We incorporate here the editor’s note in 72 A.L.R. 850, in Pickle v. Page, 252 N.Y. 474, 169 N.E. 650, 72 A.L.R. 842, to the following effect: “In the reported case (Pickle v. Page [252 N.Y. 474, 169 N.E. 650, 72 A.L.R.] 842), the New York court gives a full and elaborate review of the authorities on the point, and concludes that the proper rule is that loss of services is not a condition to an action for abduction of a minor. “The case of Howell v. Howell, 1913, 162 N.C. 283, 78 S.E. 222, 224, 45 L.R.A.,N.S., 867, Ann.Cas.1914A, 893, is one of the leading ones on this rule. It was there said: ‘The most usual cases in which this action is brought have been upon the abduction of a daughter for -marriage or immoral purposes. But the modern authorities, as we have said, have advanced, and now the parent can recover damages for the unlawful taking away or concealment of a minor child, and is not limited to cases in which such child is heir or eldest son, nor to cases where the abduction is for immoral purposes; nor are the damages limited to the fiction of “loss of services.” This court [has] pointed out that this is “an outworn fiction” even in actions for seduction. The real ground of action is compensation for the expense and injury and “punitive damages for the wrong done him in his affections and the destruction of his household.” ’ “It was said in Kirkpatrick v. Lockhart, 1809, 2 Brev., S.C., 276: T mention these cases to exhibit the true foundation of these kinds of actions, and to show that the allegation of special damages per quod is founded on a mere fiction, which seems *587 to have been suggested by a narrow, technical mind, or to have originated in a base and sordid principle of pecuniary interest. In truth and justice, it forms no essential ingredient in the cause of action, and is unworthy of the notice of an enlightened and feeling judicatory. We are, therefore, of opinion there is no necessity to resort to this absurd fiction, to support an action so well founded in justice, reason, and policy.” We hold that the true ground of action is not merely damages for the loss of services of a minor child of an age so tender or of a constitution so delicate as to be incapable of rendering any service, but •that the action is for the outrage and deprivation, “the injury the father sustains in the loss of his child; the insult offered to his feelings; the heart-rending agony he must suffer in the destruction of his dearest hopes, and the irreparable loss of that comfort and society which may be the only solace of his declining age.” 72 A.L.R. 850. The case of Soper v. Igo, Walker & Co., 121 Ky. 550, 89 S.W. 538, 539, 1 L.R.A.,N.S., 362, 123 Am.St.Rep. 212, 11 Ann.Cas. 11171, is rested upon the fact that the woman residing with her husband may not maintain an action for the enticement from home of her minor child, saying that the right to maintain an action for injuries of this sort “no doubt belongs exclusively to the father during his life; but after his death, the mother, being the only parent, is in contemplation of law guardian by nature to the children, in which relation she is bound to it by the same duties and has in them the same rights, as the father during his life.” The general rule to the effect that a verdict for the defendant rendered harmless an error made in charges relating to elements and amounts of damages does not apply when a motion to strike has been erroneously granted and which prevents the entire matter from being presented to the jury. As to this appellant’s counsel say that the erroneous ruling of the court did not appear only in the oral charge but in the written charges under the doctrine enunciated in Roll v. Dockery, 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473. Adverting to this case, where the judgment was for the defendant against plaintiff’s right of recovery, it is held that a ruling of the court upon admission of evidence, or the giving or refusing of instructions relating to the amount of recoverable damages, cannot be the basis for reversal. The rule that does apply however, is stated by Mr. Justice Sayre in Shelby Iron Co. v. Bierly, 202 Ala. 422, 424, 80 So. 806, 808, that: “It can never be known that there has been a trial on the merits in a case where the court’s rulings on the pleadings disclosed the fact that meritorious issues have been excluded from the jury. * * * ” In view of the giving of written charges 18, 19, 20 and 21 at the instance of defendant, we cannot say the error in striking the element of damages herein considered was harmless. Such was the effect of the court’s ruling in the instant case on defendant’s plea to strike from the complaint recoverable items of damage, namely; the worry, fear, anxiety and natural outraged feelings of a parent who had a “minor child stolen or abducted from him.” By no rule of law, of common sense or justice can it be safely assumed that the jury’s verdict would not have been different had these facts been presented to them and had they been instructed by the trial court to consider such facts as elements of recoverable damages. The sustaining of defendant’s motion to strike limited the evidence upon which the jury could have brought in a verdict for the plaintiff as touching the right of the parent and such minor child for the reason that the jury were instructed by the court to consider only the reasonable value of the services of plaintiff’s son and there was no evidence, before the jury that the services of such minor son were worth anything. We do not think cases cited by appellee have application. In Bube v. Birmingham Ry. Light & Power Co., 140 Ala. 276, 37 So. 285, 103 Am.St.Rep. 33, the action was by a parent for punitive damages for injuries to her son where the right of action was grounded upon the loss of services and the damages compensatory including nursing, etc. So also of the cases of Birmingham Railway, Light & Power Co. v. Baker, 161 Ala. 135, 49 So. 755, 135 Am.St.Rep. 118, 18 Ann.Cas. 477; Reeves v. Anniston Knitting Mills, 166 Ala. 645, 52 So. 142; and in Brookside-Pratt Mining Co. v. McAllister et al., 196 Ala. 110, 72 So. 18, the damages sought were held remote. The instant suit is not for an injury to the child but for an injury *588 to the mother for the abduction of the minor child. The case of Wyatt v. Adair, 215 Ala. 363, 110 So. 801, and of. Birmingham Water Works Co. v. Martini, 2 Ala.App. 652, 56 So. 830, bear a strong analogy to the instant case. It follows from the foregoing that the judgment of the circuit court is laid in error and for the rulings indicated, the cause is reversed and remanded. Reversed and remanded; All the Justices concur except GARDNER, C. J., and BROWN, J., dissent.