Hudkins v. Haskins

Woods, Judge: It is insisted by the'plaintiff in error that the circuit court erred in overruling his motion to quash the attachment_ and in overruling his motion to set aside the verdict and grant him a new trial, because as he alleged the verdict was contrary to the law and unsupported by the evidence. The proceeding by attachment against the estate of a defendant is purely statutory, exceedingly harsh in its operation, and liable to great abuse, and being unknown to the common law, is to be confined within its statutory limitations, and subject to all of its restrictions. The order of attachment — 650 — can only issue, when the prescribed affidavit has been made and filed with the clerk of the court in which the action or suit is, or is about to be brought. This affidavit lies at the foundation of the proceeding, and without it, the attachment cannot lawfully issue. The only authority for issuing the attachment in this cause is found in the first section of chapter 106 of Code of West Virginia. It provides that when any action at law for any of the purposes mentioned in that chapter is about to be, or is instituted the plaintiff at any time before judgment, “may have an order of attachment against the property of the defendant on filing with the clerk of the court in which action or suit is about to be, or is brought, his own affidavit or that of some credible person, stating the nature of the plaintiff’a claim, and the amount the affiant believes the plaintiff is justly entitled to recover in the action; and also that the affiant believes that some one or more of the following grounds exist for such attachment.” It is only necessary in this case, to set forth the first three of them, viz: First, the defendant, or one of the defendants, is a foreign corporation, or is a non-resident of this State; or, Second, that he has loft or is about to leave this State, with intent to defraud his creditors; or, Third, that he so conceals himself that a summons cannot bo served upon him. It will be observed, that the statute requires that the plaintiff or some credible person shall make an affidavit, and this affidavit must contain certain statements, and all these statements must be sworn to by such plaintiff or credible person, and unless they be so made and sworn to the clerk has no authority to issue the order of attachment. What are these statements ? That in an actiou then brought, or about to be brought, the plaintiff sets up a claim of some character against the defendant, upon which he claims a right to recover something in that action. The statute requires that affiant in T.is affidavit shall state the nature of the plaintiff’s claim and the amount the affiant believes the plaintiff is justly entitled to recover in the action, and also (in this case) that some one or more of the said (three) grounds exist for such attachment. The last clause of said first section further provides, “ that unless the attachment is sued out upon the first of such grounds the affiant — 651 — shall also state in his affidavit the material facts relied on by him to show the existence of the grounds upon which his application for the attachment is based.” By the nineteenth section of said chapter the defendant has the right to make defence to such attachment. If the affidavit contain all the necessary allegations, showing the existence of some one or more of the grounds' for such attachment, and also all the material facts relied on by the plaintiff to show the existence of these grounds, the plaintiff may file a plea in abatement denying the truth of such facts, and if the issue on such plea be found for the defendant, judgment shall be entered that the attachment be abated. The grounds alleged to exist for such attachment, and the material facts relied on by the plaintiff to shoio the existence of said grounds, must not be confounded with each other ; both must be alleged and sworn to, in the affidavit, and if either be omitted, the attachment must he quashed, for without a statement of the material facts relied on to show the existence of the grounds for issuing- the attachment it would be impossible for the defendant to deny them orto make his defence-thereto. ’What- facts are verified by the oath of the said Eliza L. Hudkins filed in this cause ? It is true the notary certifies, that she, the daughter of AVilliam Hudkins, plaintiff in a certain action of trespass in the case against Robert J. Haskins defendant, in which action one thousand dollars damages is claimed for the seduction of her, the said Eliza L. Hudkins, his daughter, appeared before him and made oath — to what? To three facts? No; she swears to none of them-, and if any or all of them be false she is not morally or legally responsible therefor, for she only swears, that she verily believes he, the said "William Hudkins, is entitled to recover from the defendant Haskins the said sum of one thousand dollars. It is not clear from the affidavit what grounds are intended to be alleged as existing for suing out the attachment. The failure of the defendant to perform his promise to marry the affiant is not one of the grounds prescribed by the statute, nor is the action brought for that cause. It is not intended to allege the defendant is a non-resident; we are obliged to conclude, that the only other possible ground intended to be alleged is, that the defendant “ so conceals himself,' that a summons — 652 — cannot be served upon him.” In that case the statute requires the affidavit to state the material facts relied on by the plain-tift to prove, that the defendant does so conceal himself. What material facts are alleged in the affidavit, which if true would prove such concealment? Simply, that “ affiant and her friends, have been informed by his friends, that the defendant has left the State so that a summons cannot be served upon him personally.” She may have been so informed and she and her friends may believe the information to be true, but is the fact true, that he has left the State for that purpose, or for any purpose? If directly alleged to exist, the defendant could deny it by plea and compel plaintiff to prove it, or if he failed to do so, the attachment would be abated. On the trial of such an issue no one would contend, that such fact would be proved, by proving that affiant and her friends had been told by his friends and that she and her friends upon such information believed that he had left the State, so that a summons could not be served upon him personally. The affidavit was clearly insufficient to authorize the attachment, as it failed to state the nature of the plaintiff’s claim, or that he was justly entitled to recover any sum in his action and failed to state any material/«ci relied on by the plaintiff, to show that the defendant “so concealed himself that a summons could not be served upon him,” and these defects are not cured by the unauthorized recital of their existence made by the notary in the body of said affidavit, as his whole duty consisted in only certifying the facts Sworn to by the affiant. We are of the opinion that the circuit court erred in overruling the defendant’s motion to quash said attachment, and in directing a sale of the real estate upon which the same' was levied. It is insisted by the plaintiff in error that the circuit court erred in overruling his motion to set aside the verdict and judgment and grant him a new trial, on the alleged ground that the verdict was unsupported by the law, or the evidence in the cause. These two objections in this cause must stand or fall together, for if the facts proved on the trial, show that the plaintiff had cause of action against the defendant, this Court could not say that the verdict was unwarranted, upon the facts proved. — 653 — The law is now well settled, that where the daughter at the time of her seduction is under the age oí twenty-one years, and the father then was entitled to her services aud attentions the law conclusively presumes that the relation of master and servant exists between them, although at the time of the seduction she may be in the actual service of another, under a contract made by herself, for her own benefit. Clark v. Fitch, 11 Wend. 459; Lee v. Hodges, 13 Gratt. 726; Clem v. Holmes, 33 Gratt. 722; Riddle v. McGinnis, 22 W. Va. and cases therein cited. The action on the case by the father for the seduction of his daughter grew out of the relation of master and servant, and the legal ground of the recovery, was the alleged loss of service occasioned by the seduction ; but both the alleged relation of master aud servant, and the loss of service have long been considered as innocent fictions, which only served to bring the real grievance before the court where damages were allowed not for the loss of services only, but principally for the humiliation and disgrace brought upon the plaintiff's family, and for the mental anguish suffered on account of the ruin of his daughter and the dishonor of his household. By the common law the plaintiff was obliged to aver and prove the existence of the relation of master and servant between the father and daughter, at the time of the seduction, and also the loss of some service, and its value; but as the relation of master and servant, as well as the services and their value, were but innocent fictions to enable the court to reach the real wrong done — the slightest acts of services, even of the least possible value have been held to be sufficient for this purpose; and now where the daughter is a minor at the time of the seduction, and the father has the legal right to command her services — -these facts alone, establish the relation of master aud servant, and the loss and value thereof, and are sufficient to enable the father to maintain his action for her seduction. By the first section of chapter '103 of the Code of West Virginia, it is not necessary to allege or prove any loss of service whatever, but it is still necessary in every case to allege and prove the existence of the relation of master and servant at the time of the seduction. — 654 — Where the daughter is a minor, and the father at the time of the seduction is entitled to her attentions and services, the relation of master and servant exists de jure — -though not defacto. In this case, without any loss of service, the father may maintain his action. Greenwood v. Greenwood, 28 Md. 370; Martin v. Payne, 9 Johns. 387; 2 Wend. 459; 15 Bar. 280; 11 N. Y. 343; 31 N. Y. 405; Riddle v. McGinnis, supra. It is equally well settled that if the daughter at the time of the seduction is over the age of twenty-one years, but is in fact the servant of her father, he may in like manner maintain his action against her seducer. oBut if the daughter be of full age at the time of her seduction, then to authorize the father to maintain his action, she must be in his service, so as to constitute in law and in fact the relation oí master and servant between them; and therefore if she be residing elsewhere, than in his family when the seduction takes place, his action cannot be sustained, unless it appears, that notwithstanding her residence elsewhere, she was still in his service, and was absent with the intention of returning to his roof. Bennett v. Alcot, 2 T. Rep. 166; 3 Black. Com. 140 n. 27; 4 Min. Inst. 474. Where the daughter who is over twenty-one years of age is residing with her father, and his family, at the time of the seduction, proof of the slightest services performed by her for him, although of no pecuniary value, are sufficient to establish the relation of master and servant. Bennett v. Alcott, supra; 2 Greenl. Ev. §§ 573, 576; 9 Johns. 11; Wendell & Riddle v. McGinnis, supra. The minor daughter, whether living in her father’s house, or elsewhere, continues to be his servant de jure. When she becomes of full age and continues to reside with him as a member of his family rendering him her usual services, though no longer a servant de jure, she will in law and fact continue to be his servant, until the relation is by the act of one or both terminated, which either, at any moment, is at liberty to do; but unless so terminated, this relation as to all the rest of the world continues. It does not lie in the mouth of the seducer to say, that he shall be free from responsibility for his wrongful act, because no binding contract exist between the daughter and her father, whereby she has become — 655 — a hired servant. Her father’s house is the natural asylum of the unmarried daughter, and the shield of its protection covers and protects her, notwithstanding she is over twenty-one years of age, until her father compels her to depart from it— or until she has voluntarily left the parental roof, emancipated herself from all legal control on the part of her father, and become in all regards the mistress of her own conduct. When this has in fact occurred, she is no longer his servant, he has lost all authority to require any service at her hands —and has no longer any right to maintain his action for her seduction, Lee v. Hodges, 13 Gratt. 738; Nicholson v. Stryker, 10 Johns. 115; Mercer v. Wamsly, 5 H. & J. 27. But it is not every occasional, or accidental absence from her father’s house that works this total emancipation from his control, so as thus to deprive her of his paternal protection against the wiles of the seducer; otherwise she would be a prisoner in her father’s house, permitted to absent herself from it, only upon peril of forever forfeiting her right ¥o his protection. 4 Min. Inst., supra; 2 Greenl. Ev. § 573; Mame v. Barrett, 6 Esp. 32; Rob. New Pr. vol. 2 p. 557; Holloway v. Abell, 7 C. & P. 528; Sipe v. Eisenlerd, 32 N. Y. 229. When we remember that the action of trespass and trespass on the case per quod servitium crniset are the only remedies provided by the law to redress the greatest of all injuries to the domestic circle, and, that the tendencies of the courts have been to extend these remedies, and redress the wrong, and that they have uniformly treated the relation of master and servant as well as the loss of services as mere fictions of law to bring the wrong before them for redress, we have no disposition to add any restrictions upon the father’s right to maintain his action not already established by the adjudicated cases. In the case of Bennett v. Alcott, 2 Term. R. 166, the daughter was thirty years of age and at the time of the seduction was living in her father’s house, and had been in the habit of rendering him some small services, but no other circumstances appeared from which it could be presumed, that the relation of master and servant existed between them. This was held sufficient to maintain the lather’s action for the seduction of his daughter and to support a verdict against the defendant for two hundred pounds sterling. In Mann v. Barrett, 6 Esp. — 656 — 32, the plaintiff lived on a farm adjoining that occupied by lxis son. The daughter who was seduced was living with her brother, managing his house; she was in the habit of going-back and forward from her brother’s to her father’s house, and assisted her father at his house, but slept at her brother’s house, and while living with her brother she was debauched by the defendant. It was held, that the father was entitled to maintain his action against the defendant for debauching his daughter. In Holloway v. Abell, 7 C. & P. 528, the plaintiff owned two farms, seven miles apart. He resided on one and his son and daughter on the other, where the daughter acted as mistress, going and coming when she pleased, and while there was seduced. In that case the father’s action against the seducer was maintained. In the ease of Sipe v. Eisenlerd, 32 N. Y. 229, the daughter was tweuty-niiie years of age and generally resided in her father’s family, performing such services as are usual under such circumstances. The defendant was a practicing physician and kept a tavern. Needing help to prepare for large entertainments at his tavern at Christmas and New Years, 1857, he induced her to leave her father’s house, with his consent, to stay at the tavern and assist in preparing the entertainments and putting the house in order afterwards. She remained in defendant’s tavern eleven days, during which time he seduced her, the intercourse taking place five days before she returned to her father’s house. In this case the father’s action for the seduction of his daughter was sustained by the court of appeals of New York, although -there was no evidence of any express contract for service between her and her father. Dcnio, Chief Justice, delivering the opinion of the court in, that case says: “ I lay out of view, for the moment, the circumstance that she was at the defendant’s house at the time of the intercourse, assuming that to have been accidental, and not of such a character as to interrupt the relation which lie habitually sustained towards the plaintiff. As father, he had no right to claim her services against her will, and he was under no legal obligation to provide for her support. But by a tacit understanding such as almost always exists in such cases, she continued to perform such services in his household as she was capable of and such as were required; and on his — 657 — part be supplied her with food, clothing and lodging. Either party could put an end to the arrangement at pleasure, but at the time of the seduction neither had elected to do so, and it then existed in its full force. Although the daughter could have broken it off’, third persons had no such right, but were bound to respect it; and any illegal act, by which the right of the father, such as it was, to her services was interfered with to his detriment was a legal wrong, for which the law affords redress.” The court held, that the daughter’s absence from home in that case was merely temporary, and in the nature of a visit, and did not at all affect the relation of master and servant, which subsisted between the plaintiff and his daughter. In the case of Nicholson v. Stryker, 10 Johns. 115, where the plaintiff’s action was not sustained, the daughter was also twenty-nine years old, but she was not in the actual service of the father when the seduction took place, and therefore the relation of master and servant did not thfen exist between them, and so the supreme court of judication of New York in that case held. In Mercer v. Wamsley, 5 H. & J. (Md.) R. 27, the father’s action was not sustained, for it appeared that at the time of the seduction the daughter was upwards of twenty-one years of age, living at the house of the defendant, where she had been living for more than a year before she was debauched, doing different kinds of work and attending to the affairs of the defendant’s family generally, and she was not therefore in the service of her father, and therefore the relation of master and servant did not then exist between them. The plaintiff in error relies-upon the case of Lee v. Hodges, 13 Gratt. 738, to support his pretensions in this case. An examination of the circumstances disclosed by the record in that case, shows that the court of appeals of Virginia did not announce any new principle, but merely declared the law to be as we have stated it, viz : that where the daughter at the time of the seduction is over the age of twenty-one years, she must be shown to have been in the service of the father, before he can maintain his action. In that case the defendant’s daughter at the time of her seduction was over twenty-three years of age, living with the defendant, away from her father’s- house, under a contract made by herself with the defendant after she was of full age, — 658 — for ber own exclusive benefit, binding herself to render service to the defendant .for a period of twelve months, during which period she was seduced by him, but it did not even appear that she was living with her father at the time her said contract was made, or that she had ever lived with him at any time after she became of full age. By these facts it did not appear that the daughter, at the time of her seduction was, or at any time after she became of full age had been in the service of her father, and therefore the relation of master and servant did not at that time subsist between them, but on the contrary it clearly apjaeared, that at the time of her seduction she was actually the servant of die defendant. Daniels, Judge, delivering the opinion ot the court in that case, declared “that where the daughter lias arrived to years of discretion, has left the parental roof, has emancipated herself from all legal control on the part of the father and become in all regards the mistress of her own conduct and actions, I think the law gives the father no action for her seduction.” "We are therefore of the opinion that, where the daughter after she became of full age resided in her father’s family and rendered to him any of the services usually rendered by a daughter in the family from which the relation of riiaster and servant would be presumed to exist between them such relation must be presumed to continue until terminated by the father, or until the daughter has left the parental roof, emancipated herself from all legal control on the part of her father and become in all respects the mistress of her own conduct and aetipus, and that this relation of master and servant between the father and daughter is not destroyed by a temporary absence from her father’s house with the present intention on her part of returning to the same. • It only remains to apply the principles of law just announced to the facts of the case under consideration. They are few and simple. They show the plaintiff’s daughter had lived at home with him all her life, except that some time within five years, before the 2d of September, 1882, she had lived in Sutton with a Mr. Cunningham, and with liev. Poling, and excepting the time she stayed xoith her sisters; that she had always lived at her father’s house (except as be — 659 — fore .stated) doing service for Mm; that she lived with her married sister Mrs. Nelson McGlaughlin while lior husband in the fall of 1879 was working on-the Elk river improvement; that the seduction and each act of sexual intercourse which was continued for about six months after conception, occurred at Nelson McGlaughlin’s, and that she wont backwards aud forth from her father’s to McGlaughlin’s at various other times than the time she was staying with her sister in the absence of her husband Nelson McGlaughlin, that she always went home when her father requested her, and that at the time of the trial in the circuit court she was twenty-six years of age. These facts show that alter the1 daughter was twenty-one years of age, she continued until some time between the beginning of September and the middle of November, 1879, when she must have been between twenty-three and twenty-four years of age, to live at her father’s house doing service for him., and that about this time she became pregnant with child by the defendant. From the time she became of full age until the time she went to stay with her sister in the absence of all proof to the contrary — the relation of master and servant existed between her and her father, and there is nothing in the facts proved to warrant us to believe, that the daughter, at the time she went to stay with her sister had been banished by her father from his home, or that she, n going to stay with her sister during the absence of her husband, had left the parental roof, emancipated herself from all legal control on the part of her father, and become in all respects the mistress of her own conduct and actions. As there is no evidence to show how long she stayed with her sister, whether a week or a month, whether she was hired there as a servant, or entertained as a visitor, and as the proof is she stayed with her sister during the absence of her husband, the natural, reasonable conclusion is that she was there temporarily as a visitor, with present intention of returning to her father’s home as soon as her sister’s husband should return. Neither do the facts proved show that either the seduction, or any subsequent act of sexual intercourse with defendant took place during the time she stayed with her sister in the absence of her husband; all the facts proved do show, is that every act of sexual intercourse occurred at — 660 — her sister’s house, but the number of these acts and whether the same were committed before or after she went to stay with her sister, nowhere appears among the facts proved. If it be insisted that it is probable, that the seduction occurred during her stay with her sister, it will be a sufficient answer to say we are dealing with facts proved, and not with probabilities which do not appear. But if it had been proved that such was the fact, it could not change the result, for temporary absence, would not destroy the relation of master and servant subsisting between her and her father. But as the facts proved show that the daughter went backwards and forth from her fathei'-’s to Mrs. McGlaughlin’s at various times, other than the time she was staying with her sister in the absence of her husband, every act of sexual intercourse may have taken place during these various other casual visits to her sister’s house. "We are therefore further of opinion, that the verdict of the jury upon the facts proved was not contrary to the law, and that the same was warranted by the evidence, and the circuit court did not err in overruling the defendant’s motion to set aside said judgment and verdict and grant him a new trial. Neither did the circuit court err in overruling the defendant’s demurrer to the plaintiff’s declaration and each count thereof. The court of appeals of Virginia in White v. Campbell, reported in 13 Gratt. 573, having decided that in action for the seduction of the plaintiff’s daughter he may, to enhance the damages, prove that the defendant promised to marry her, and by means of said promise had succeeded in debauching her, the declaration in this case was not vitiated by alleging that the seduction was accomplished under a solemn promise to marry the daughter. Such an allegation will be treated as surplusage, as that fact can he proved on the trial .as well without as with said allegation. We are therefore further of opinion that so much of the judgment of the circuit court of Braxton county as overruled the defendant’s motion to quash the order of attachment, and as directs the sale of the undivided half interest in the one hundred and thirty-seven acres of land upon which the attachment -was levied be wholly reversed and annulled, and that the judgment in all other respects be — 661 — affirmed. And this Court proceeding to render such judgment as the said circuit court ought to have rendered, it is considered that the order of attachment be quashed, and the order of sale entered in said cause directing the sale of said moiety of the one hundred and thirty-seven acres of land be wholly reversed and set aside. And it is further considered that the plaintiff in error recover against the defendant in error his costs by him about the prosecution of his writ of error and supersedeas in this Court expended. The Other Judges CoNcurred. Aeeirmed ik Part. Reversed in Part.