Lawyer v. Fritcher

Putnam, J.: This action is brought by plaintiff to recover for loss of services on account of the alleged abduction and seduction of his daughter, Edith, in May, 1886. Defendant had at the time a wife living and could not marry. When he took Edith away defendant said : “ I *am just as clear from my wife as though T never had married her.” Plaintiff believed the statement and was induced thereby to sign a written consent to the marriage of his daughter with the defendant. Defendant took Edith from her father’s house on May 17, 1886, under the pretense that he would marry her, but as he was unable to do so no marriage was attempted between them. They were proved to have occupied the same bed-room and the same bed for two nights. On the twentieth she died by poison, administered by herself. The defendant called out on the examination of Julia Lawyer the fact that Edith stated that she had taken poison; that she said, “ I have took poison, Julia.” “ Why, Edie, what did you do that for ? ” says I; she said, “ Because I didn’t want to live; I don’t want to see anybody.” It appeared that when defendant brought Edith home and said she was his little wife, and after they had occupied the same bed and bed-room one night, Julia Lawyer told Edith that Eritcher could not get married because he did not have a bill from his wife. There is no doubt that the relation of master and servant existed between plaintiff and his daughter Edith at the time in [588] question. She was seventeen years of -age, living with him, and be was entitled to her services. The jury have found, on competent evidence, that the consent of plaintiff to the defendant’s taking away his daughter on a promise of marriage was given in the belief that defendant had a legal right to marry, and that such consent was obtained of plaintiff by fraud. It is held in. Regina v. Hopkins (Carr & M., 254), cited and approved in People v. De Leon (109 N. Y., 229), that a consent obtained of the parent by fraud is no defense to an indictment for abduction, nor is it in an action for seduction by the parent. The fact that when the daughter was ill and died she was not at her father’s house and in his actual service, but at defendant’s, does not prevent a recovery. (Furman v. Van Sise, 56 N. Y., 435; Certwell v. Hoyt, 6 Hun, 535.) The proof is sufficient that the defendant had carnal intercourse with the daughter of plaintiff; they occupied the same bed and bed-room for at least two nights; this evidence was sufficient to justify a verdict; and it is well settled that the jury were not bound to believe the evidence of defendant in the matter. Hence plaintiff showed the relation of master and servant between himself and his daughter; that he was entitled to her services, and that she was seduced by defendant without his consent. The most serious question in the case is whether there was sufficient evidence of damage to submit to the jury, assuming that the plaintiff is not entitled to recover on account of the death of his daughter, as held by the trial judge. In such actions it is necessary to show some actual damage resulting from the seduction. But the loss of service is often merely nominal, though the damages recovered are very large. The slightest proof of damage is sufficient. (See Lipe v. Eisenlerd, 32 N. Y., 236, 237; Badgley v. Decker, 44 Barb., 577; Damon v. Moore, 5 Lans., 459.) Therefore, showing that a slight illness was caused is sufficient. In Knight v. Wilcox (18 Barb., 212), it was held not necessary to show pregnancy and the birth of a child; that illness of the daughter was sufficient. The judgment was reversed by the Court of Appeals upon the ground only that the illness of the daughter in that case was not the direct and necessary result of the seduction. (See S. C., 14 N. Y., 413.) In Manvell v. Thomson (2 Car. & P., 303), the damage resulting from a seduction [589] was a mental illness, threatening the overthrow of the physical system. The authority of the case was questioned by Weight, J., delivering the opinion of the Court of Appeals in (14 N. Y., 417), but the case was afterwards cited with approval in White v. Nellis (31 N. Y., 408), and Lipe v. Eisenlerd (32 id., 234). (See, also, Gray v. Durland, 51 N. Y., 429.) In White v. Nellis (31 N. Y., 405), it was held that plaintiff could recover in such an action whenever the wrongful act, by immediate and direct consequence, deprived the master of his servant, or injuriously affected his rights to such services, citing the case of Manvell v. Thomson (supra). Is this such a case ? As stated, where the relation of master and servant exists and the seduction is shown, proof of an actual loss is rather a legal fiction than a reality; the slightest proof is sufficient. In this case, as the jury have found on competent evidence, the defendant, a man of sixty years, by gross fraud obtained plaintiff’s consent to take away his child, seventeen years old, and seduced and debauched her, well knowing that he was unable to marry her. It is to be inferred that she was well when she left home. She was a bright, cheerful, good-tempered child. She thus left home on the seventeenth of May. When she-was brought to defendant’s house she was informed that he could not marry her as he had no divorce from his wife. The fact was drawn out by defendant that she took poison, and stated that “ she didn’t want to live; did not wish to see anybody.” She died on the twentieth, four days after she left home. Is there any evidence in the case from which the jury could legitimately conclude that the child, between the seventeenth and the time she took the poison which caused her death, was ill? If ill in any way, however slight, her father, who was entitled to her services, was damaged. The jury might properly infer, from what she said and the circumstances shown, that when she took the drug she did so under a feeling of shame and mortification at finding that she was seduced and ruined, which feeling was the direct and natural result of the seduction shown. When she took the poison the jury were authorized to find that she was mentally ill, and that such illness was caused by the seduction. In Manvell v. Thomson (2 C. & P., 303), a cousin of the girl proved that when she returned to her uncle’s house, after she had [590] been seduced and abandoned, she was in a state of very great agitation and continued so for some time; that she received medical attendance, and was obliged to be watched lest she should do herself some injury. This was taken as evidence raising a presumption of loss of service by the uncle, and he had a verdict of £400. This case, having been cited and approved in several cases in the Court of Appeals, may be deemed an authority. It was projDerly decided. A person when in a state of great and continued agitation, and who has to be watched for fear she will harm herself, is not only mentally but physically ill. On the authority of that case we think the judge correctly submitted to the jury the question whether the plaintiff sustained damages by the seduction proved in this case. There was evidence to justify the finding that the child, as a result of her seduction, had taken poison; that she was thrown into that state of semi-insanity that induced her to take her own life. Such evidence proved that she was mentally and physically ill, and was such slight evidence of damage to plaintiff that the judge could properly submit the case to the jury. If, in Manvell v. Thomson, the fact that the niece was thrown into a state of agitation, so that she had to be watched, raised a presumption of loss of service by the uncle, here, where the act of the defendant threw the daughter into such a state of agitation and mental distress that she actually did take her own life, the presumption of loss of service is equally strong. She should have been watched. Her condition was such that she required care and attendance, and although while in this condition she was not in her father’s house, he is just as much presumed to have suffered damage as though she had been at his home. It was no error to show the circumstances, including the conversation between the parties, occurring at the time and preceding the time that defendant took away the child, although the conversation called out showed a promise of marriage. The defendant had set up that plaintiff consented to whatever was done. One of the issues in the case was whether or not Edith was taken away with her father’s consent. Plaintiff could properly prove all the facts and circumstances to prove that his consent was obtained by fraud. In this case whatever took place between the parties and what was said was necessarily shown on the question whether the girl was seduced [591] or not. We do.not think that the authorities cited by the defendant apply to such a case as this. The charge of the learned judge seems to have been favorable to the defendant, and we do not discover any errors either in his charge or in his rulings upon the trial. The judgment should be affirmed, with costs. LaNdoN, J.: Seduction accomplished implies consent. This consent is at common law a bar to an action against her seducer by the female seduced. As no physical violence was done the father, the common law could afford him no remedy except by resort to the fiction that his daughter is his servant, and, therefore, owes him service; that if she is seduced, and thus rendered incapable of rendering service, he loses the service she owed him, and he, therefore, may recover against the seducer who causes such loss of service. This artifice is properly termed a legal fiction, the real ground of recovery being for damages for the outrage perpetrated. In this case all the requirements of the fiction are made out, except, possibly, the inability to render service consequent upon the seduction. Why is proof of this consequent inability required ? Simply to. complete the logical consistency of the fiction. Justice does not require it. Justice examines to ascertain whether the alleged outrage is really such, and of what degree of aggravation. The outrage proven, a scintilla of evidence of the consequent inability to render service will suffice, and ought to suffice. Liberal presumptions may be indulged, if the justice of the case requires it, to establish this member of a series of fictional requirements. Here the seduction was proved, and the daughter’s subsequent suicide. The jury could infer that before she took the poison there were some* moments — a single one would be enough —in which she was not so capable of rendering service as she would have been if her seduction had not been effected. I concur with my brother PutNAm.