Little v. Holmes

Citation107 S.E. 577
Decision Date03 June 1921
Docket Number(No. 416.)
CourtUnited States State Supreme Court of North Carolina
PartiesLITTLE v. HOLMES et al.

Allen, J., dissenting.

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.

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 plaintiffs 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 plaintiffs home by the back way. The plaintiffs 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 plaintiffs 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:

"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, citations of numerous authorities in 1 A. & E. (2d Ed.) 167, as follows:

"A father has a right of action against every person who knowingly and wittingly interrupts the relation subsisting between himself and his child, or abducting his child away from him, or harboring the child after he has left the house."

In Howell v. Howell it is further said:

"It can make no difference that the child at the time she was carried away was not in the immediate custody of the father. She was temporarily with her mother, but he was legally entitled to her custody or to have it adjudged by the court, and to take her out of the jurisdiction of the court, or secrete her, was an injury for which he was entitled to damages. The allegation in the complaint that the defendant Briggs 'procured, aided, assisted, and advised the taking off of the child, and conceals its whereabouts, and has thereby caused the plaintiff great and agonizing distress of both mind and body, ' states a good cause of action against him."

In Howell v. Solomon, 167 N. C. 591, 83 S. E. 611; Walker, J., quoting Howell v. Howell, supra, as to the right of the father to the custody of the child, says:

"This right of the father continues to exist until the child is enfranchised by arriving at years of discretion, 'when the empire of the father gives place to the empire of reason.' "

The defendants rely upon Wilkinson v. Dellinger, 126 N. C. 462, 35 S. E. 819, which was a suit against a register of deeds for issuing a license to marry a minor which has no application to the facts in this case. He did not deprive the father, forcibly and violently and against his will, of the custody and society of his daughter as the defendants did, but even in that case it is said:

"From a time whereof memory runs not, a parent and those in loco parentis have a right to the company and services of a child during its infancy, and any one unlawfully invading that right is liable to the parent in damages."

In that case the court held that the register of deeds was liable for the penalty prescribed by the statute, but not for depriving the plaintiff of the services and companionship of his daughter, which clearly the register did not do. The girl was of a lawful age to marry, and upon the marriage her control by the father ceased by operation of law. It clearly has no application to this case.

The court also properly refused to charge that the plaintiff's evidence did not warrant more than nominal damages. In Howell v. Howell, supra, it was held that the jury had a right to award compensatory damages for the wrong and for the mental anguish, and might also award punitive damages, which fitted the last exception in this case.

Howell v. Howell, supra, is reported in 31 Ann. Cas. 893, with copious notes (896-899), which are thus summed up:

"The right of the father to the custody of his minor children, in the absence of any act on his part by which he may have waived or deprived himself of that right, is not open to discussion, and has frequently been asserted in habeas corpus proceedings instituted by him."

It is further said that the "right of the father to recover damages for the abduction of a minor child has been questioned in comparatively few cases and is well established" (citing a long list of cases). It is also recited:

"The basis of the father's right of action for the abduction or enticing away of his minor child is generally held to be the loss of the * * * child's services" (giving a long list of cases). "In some jurisdictions it has been ruled that it matters not whether a child renders services in fact. That the parent is entitled to such services on the part of the child is sufficient to give him a right of action, and having such right on which to base the action, he may recover damages for the injury to his feelings, and the loss of the companionship of his child, as well as for the loss of the child's services."

In two jurisdictions, however, the court repudiates the idea that the loss of the child's services forms a basis of the father's right of action. In Kirkpatrick v. Lockhart, 2 Brev. (S. C.) 276, it says:

"The true ground of action cannot be the loss of service, for a child may be of an age so tender, or of a constitution so delicate, as to be incapable of rendering any service. The true ground of action is the outrage and deprivation; the injury the father sustains in the loss of bis child; the insult offered to his feelings; the heartrending 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."

It is very true that in many instances, owing to the tender years of the child or itsdelicate health or the pecuniary condition of the parents, the loss of services are inappreciable, but in all cases there is the wrong and outrage of taking from the custody of the parent, whose feelings of affection, whose right to the love and companionship of the child are violated as in this case. There are, however, a very large number of instances in which the loss of the services of the child are a serious consideration. A very large part of the population of this, or any other state, are people who either are laborers or in moderate circumstances. They look to the aid of the older children in services about the house, or their wages until they attain majority, to add to the family resources and to aid in the support of the younger children. This with a very large element of the population is a very serious consideration, and if other parties can...

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