107 S.E. 577 (N.C. 1921), 416, Little v. Holmes

Docket Nº:416.
Citation:107 S.E. 577, 181 N.C. 413
Opinion Judge:CLARK, C.J.
Party Name:LITTLE v. HOLMES ET AL.
Attorney:Maness, Armfield & Vann, of Monroe, for appellants. F. W. Ashcraft, of Marshville, and Stack, Parker & Craig, of Monroe, for appellee.
Case Date:June 03, 1921
Court:Supreme Court of North Carolina

Page 577

107 S.E. 577 (N.C. 1921)

181 N.C. 413

LITTLE

v.

HOLMES ET AL.

No. 416.

Supreme Court of North Carolina

June 3, 1921

Appeal from Superior Court, Union County; McElroy, Judge.

Action by Frank Little against M. C. Holmes and others. Judgment for plaintiff, and defendants appeal. No error.

Allen, J., dissenting.

A father can recover damages in an action for abduction of 16 year old daughter against defendants, who took the daughter from her home against the protests of her mother and carried her to another state.

The mere marrying of a woman who is a minor, over the age of 14, without the consent of her parent or guardian, is not a crime.

Maness, Armfield & Vann, of Monroe, for appellants.

F. W. Ashcraft, of Marshville, and Stack, Parker & Craig, of Monroe, for appellee.

CLARK, C.J.

In the absence of the plaintiff from his home on January 14, 1919, the defendants, M. C. and Baxter Holmes, went to his house and carried away his 16 year old daughter in an automobile to South Carolina, where she was married to Henry Griffin. This was done against the earnest protest of the plaintiff's wife. The defendant M. C. Holmes hired the car, and was driving it. Baxter was on the front seat with him. They came up to the plaintiff's home by the back way. The plaintiff's wife missed her daughter, went to the door, and saw her getting into the car. The mother then ran out to the car, and pleaded with her daughter not to go. She was crying. The defendants said that they were just going to Monroe. The mother cried and wept, and the defendant "went so fast that they did not look back." The plaintiff got a car and left for Chesterfield, S. C., and telephoned there, forbidding the issuance of marriage license. When the plaintiff saw the defendant Holmes, he complained to him of this treatment, and he grossly insulted the plaintiff. The father then searched for and found Griffin and his daughter in a negro house. Griffin struck the plaintiff twice with an iron poker, beat and bruised the plaintiff until he was unconscious, and then fled with the plaintiff's daughter. Griffin is not a party to this action, which is solely against Baxter and Craig Holmes for the violence and abduction in carrying off plaintiff's daughter from his home. Baxter Holmes went with Griffin to Monroe to get the marriage license, and swore that the girl was 18 years of age when the testimony is that she was barely 16. There was evidence as to the plaintiff's mental anguish caused by the conduct of the defendants.

The defendants abandoned all exceptions except as to the refusal to nonsuit, the refusal to charge that the evidence disclosed no cause of action, the refusal to charge that the plaintiff's evidence did not warrant more than nominal damages, and to the following paragraph in the charge:

"The plaintiff would be entitled to recover, if entitled to recover at all, such damages as are a reasonable compensation for the mental anguish suffered by plaintiff by reason of the abduction of his daughter, if the jury find that he suffered mental anguish as a result thereof."

As to the first two exceptions, Howell v. Howell, 162 N.C. 283, 78 S.E. 222, 45 L. R. A. (N. S.) 867, Ann. Cas. 1914A, 893, is conclusive in favor of the action of the court below. In that case it was said that at common law it was true that "abduction of a child was not an offense" ( State v. Rice, 76 N.C. 194); but 3 Bl. Com. 140, holds that a civil action lay therefor, and that a father could recover damages, though he says it "was a doubtful question, on which the authorities were divided, whether a father could recover for the abduction of any other child than the oldest son and heir." But after citing numerous authorities the court, in Howell v. Howell, says that the action can now be sustained, and the jury has a right to award damages for mental anguish as a part of the compensatory damages for such wrong, adding:

Page 578

"The most usual case in which this action is brought has 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 it 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' "

--adding,

"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,' as said in Scarlett v. Norwood, 115 N.C. 285; Abbott v. Hancock, 123 N.C. 99; Snider v. Newell, 132 N.C. 614, 623, 624."

The law is thus summed up with...

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