Howell v. Howell

• Decision Date: 22 May 1913
• Parties: HOWELL v. HOWELL et al.
• Court: North Carolina Supreme Court

78 S.E. 222

162 N.C. 283

HOWELL v. HOWELL et al.

Supreme Court of North Carolina

May 22, 1913

Appeal from Superior Court, Yancey County; Lyon, Judge.

Action by G. C. Howell against Edith Howell and G. A. Briggs. Judgment for defendants, and plaintiff appeals. Reversed.

A parent has an action for the unlawful taking away or concealment of his minor child, and is not limited to cases in which such child is the heir or oldest son, nor to cases where the abduction is for immoral purposes.

In a civil action by a parent for unlawfully taking away or concealment of his minor child, punitive damages for the wrong done him in his affections in the destruction of his household are recoverable.

Hudgins Watson & Watson and A. Hall Johnston, all of Marion, for appellant.

CLARK C.J.

The plaintiff entered into a contract with his wife, the defendant Edith Howell, and the defendant G. A. Briggs, her father, that the daughter of the plaintiff, Lucy Howell might remain with her mother, Edith Howell, at the home of said G. A. Briggs until said child should reach the age of six years, when she should be returned to her father. The plaintiff, soon after said contract, obtained a divorce from his wife on the ground of her adultery, and the decree provided that the custody of the child should be left open for further orders of the court. There has been no decree fixing the custody of said child. It is alleged in the complaint that, a few days prior to the child's attaining six years of age, the defendant Edith Howell, with the advice and assistance of her codefendant, G. A. Briggs, spirited the child away beyond the state to some place unknown to the plaintiff. The complaint asks judgment against the defendant G. A. Briggs for damages, and against both defendants for the custody of said child if she can be located, and for a rule upon the defendant Briggs requiring him to disclose the present whereabouts and residence of the plaintiff's child.

Abduction is usually prosecuted on the criminal side of the docket. But there are many cases in which damages have been recovered for wrongful abduction. The court having dismissed the action upon the pleadings, we must take the statements in the complaint to be true, because by the dismissal of the action the plaintiff has been debarred the opportunity of proving his allegation to be true. The question is whether the complaint states a cause of action.

In Harris v. Harris, 115 N.C. 589, 20 S.E. 187, 44 Am St. Rep. 471, it was held that a father who was entitled to the custody of the child might recover damages on a bond given for the return of the child to his custody for failure to do so. A grave wrong was done the plaintiff if, as the complaint avers, his child was taken out of the state or secreted by the mother with the aid and assistance of the defendant G. A. Briggs. If the child were in the state, this action can be maintained for the production of the child before the judge who upon hearing the evidence would award her custody. As to the defendant G. A. Briggs, if the allegations of the complaint are proven to be true, he is clearly liable for damages.

It is true that at common law abduction of a female for immoral purposes was not an offense (State v. Sullivan, 85 N.C. 506); but as judge Settle remarked in State v. Oliver, 70 N.C. 60 (referring to the common-law right of a husband to whip his wife), "We *** have advanced from that barbarism," to some extent by Laws 1879, c. 81, now Revisal 3358, which makes abduction under some circumstances an offense if the child is under 14 years of age (State v. George, 93 N.C. 567; State v. Chisenhall, 106 N.C. 676, 11 S.E. 518; State v. Burnett, 142 N.C. 579, 55 S.E. 72).

At the common law, abduction of a child was not an offense. State v. Rice, 76 N.C. 194. But Blackstone, 3 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 add heir. In Barham v. Dennis, Cro. Eliz. 770, it was held that he could not. But later cases held that an action would lie for taking away any of the children because the parent "had an interest in them all." It is interesting to quote the reasoning of the courts at common law as given in Barham v. Dennis, supra. Anderson, Walmsley, and Kingsmil, JJ., said: "The father should not have an action for the taking of any of his children, which is not his heir; and that is by reason the marriage of his heir belongs to the father, but not of any other his sons or daughters; and by reason of this loss only, the action is given unto him; the writ in the Register is for the son and heir, or daughter and heir only; which proves that the law has always been taken, that the action lies not for any other son or daughter. And although it hath been said that a writ of trespass lies for divers things whereof none of them are in the Register; and it hath been adjudged that it lies for a parrot, a popinjay, a thrush, and as in 14 Henry VIII for a dog; the reason thereof is, because the law imputes that the owner hath a property in them. *** But for the taking of a son or daughter not heir, it is not upon the same reason, and therefore not alike. Here the father hath not any property or interest in the daughter which the law accounts may be taken from him." Glanville, J., dissenting, said: "The father hath an interest in every of his children to educate them, and to provide for them, and he hath his comfort by them; wherefore it is not reasonable that any should take them from him, and to do him such an injury, but that he should have his remedy to punish it." The majority of the court are...