Anthony v. Norton

• Decision Date: 11 March 1899
• Docket Number: 11138
• Parties: O. L. ANTHONY v. E. M. NORTON
• Court: Kansas Supreme Court

56 P. 529

60 Kan. 341

O. L. ANTHONY v. E. M. NORTON

No. 11138

Supreme Court of Kansas

March 11, 1899

Decided January, 1899.

Error from Coffey district court; W. A. RANDOLPH, judge.

Judgment affirmed.

Madden Bros., for plaintiff in error.

G. E Manchester, and Lamb & Hogueland, for defendant in error.

OPINION

DOSTER, C. J.:

This was an action brought by Mrs. E. M. Norton, a widow, against O. L. Anthony, for damages for the seduction of her daughter Turie Norton. Besides a denial of the imputed act, the defense was that the daughter was of full age, and did not as to her mother, stand in the relation of a servant to a mistress, and that no loss of service to the mother, as mistress, had resulted from the alleged wrong. The daughter was about twenty-five years old at the time of the seduction charged, and was clerking in a store. At and before that time she lived with her mother as a part of the family, and occasionally performed some slight household services. The court, among other matters of law, instructed the jury as follows:

"If you find from the evidence that the plaintiff is a widow, and the mother of Turie Norton, whom it is alleged that the defendant seduced, and that, at the time of said seduction, the said Turie Norton lived with her mother and performed service for her (and you are instructed that the performance of any slight service is sufficient to satisfy the law in that regard), then plaintiff will be entitled to recover, if you find that the seduction was accomplished as alleged. That you may find that the said Turie Norton was in the service of the plaintiff, you need not find that a contract existed between them for such service. It will be sufficient if she lived with her mother when the seduction occurred, and took part in the housework. And such service need not be paid for, and no pay need be promised or expected."

A request made by the defendant for the following instruction was refused:

"I instruct you that the mere relation of mother and daughter will not permit a recovery by the former for the seduction of the latter."

The instruction given is in accord with the almost unanimous voice of the courts, and if it were the only one to be considered we should have no hesitation in approving it; but the request preferred by the defendant and refused by the court brings before us the question as to whether an action for seduction can be maintained upon the mere relation of parent and daughter alone, especially where, as in this case, the daughter is of age and lives with her parent and constitutes a part of the family. Upon this question the holdings of the courts are uniform to the effect that an action for the seduction of a daughter, brought in the parental capacity alone, is not maintainable, except as allowed by statute. At common law the action is maintainable by the parent only in the capacity of master or mistress, and it must be in form an action for loss of the daughter's services as a servant. That the rules of the law should thus degrade the injured parent's right of action to one of mere compensation for the impaired ability of the daughter to perform labor, and for the recovery of the expenses incident to such sickness as results from the wrong done, has been, throughout the course of judicial decision, a matter of regret among the judges. So grievously has this reproach upon the law been felt, that the courts quite a time ago began to sanction a wide latitude of evidence as to damages in such actions, until now the rule has become firmly established that, notwithstanding the action must be in form for loss of services and expenses incurred in sickness, compensatory damages for parental, and even general, family shame and mortification may be recovered, together with an additional punitory sum for the flagrant wrong committed by the seducer. It will be profitable at this point to illustrate by quotations from the authorities the present liberal holdings of the courts upon this subject, and to note the extreme departure of the rule of proof from the rule of pleading, and also to note the lament of the judges over the arbitrary and technical theory which compelled the parent to disguise his action in the false and abhorrent form of a master's suit for loss of services.

Mr. Sedgwick, in his work on Damages (8th ed., vol. 2, § 471), says: "The common-law action of case, by the father or master, for seducing a daughter or female servant, is one of a peculiar character. It is eminently a legal fiction; the demand is based upon the mere loss of service; but the damages are very much at large, and in the discretion of the jury." Following the above statements the author briefly traces the evolution of the rule of damages from one of mere compensation to the master for loss of services to one of compensation for parental mortification, anguish, and violated honor.

In Sutherland on Damages (vol. 3, p. 735), it is said:

"At common law this action rests on the relation of master and servant, and proceeds in form for loss of service. Trespass vi et armis is deemed the proper action where the servant resides with the master or parent; case may also be brought where the injury is not committed with force or where the servant is only constructively in the master's service. Slight evidence will establish sufficiently the relation, and the extent of the loss of service is not the measure of damages. The allegations and proof on these points are almost an unmeaning formula--an obeisance to a shadow of the past--to reach the actual grievance. The action in reality is to afford redress for the injury done to the parent or other near relative or person standing in loco parentis for the dishonor and degradation suffered by the family in consequence of the seduction. And large damages, which the court will seldom relieve against, are recoverable, both for recompense to the plaintiff and punishment to the defendant. Caton, J., said: 'Technically the ground of recovery is the loss of the services of the daughter, and the rule of the books seems to be that the father must prove some service in order to entitle him to maintain the action. This is nominally the ground on which the plaintiff's right of action rests, while, practically, the right to recover rests on far higher grounds; that is, the relation of parent and child, or guardian and ward, or husband and wife, as well as that of master and servant; and it seems almost beneath the dignity of the law to resort to a sort of subterfuge to give the father a right of action which is widely different from that for which he is really allowed to recover damages. But the law may still require proof of service, or at least the right to service when the child is a minor; but this, as well as any other fact, may be proved by circumstances sufficient in themselves to satisfy the jury that the party seduced did actually render service to the plaintiff, and the most trivial service has always been held sufficient.' ( Doyle v. Jessup, 29 Ill. 460.) Even in England, where stricter proof of service is required, Blackburn, J., said: 'In effect, the damages are given to plaintiff as standing in the relation of parent; and the action has at present no reference to the relation of master and servant, beyond the mere technical point on which the action is founded.' (Terry v. Hutchinson, L. R. 3 QB 602.) This is according to the general current of authority. While the courts adhere so far to the original distinctive character of the action as to require proof that the seduced female was in the service of the plaintiff at the time of the seduction, they do not require very strict proof; very slight evidence of loss of service suffices in favor of one standing in loco parentis, and affected by the graver consequences of the seduction. The actual loss sustained by the plaintiff, through the diminished ability of his daughter, relative or ward to yield him personal service, as well as the servile position of the supposed servant herself in the family of her protector, is ordinarily little more than a mere fiction. It is one of those cases in which an action devised for one purpose has been found to serve a different one, by the aid of the discretion which courts have assumed in instructing the jury, and the readiness of the jury to render substantial justice by their verdict, where the forms of law imposed by the instructions of the court admit of their so doing."

In Pollock on Torts, 201, it is said:

"The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Sergeant Manning wrote forty years ago: The quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her broad amongst strangers. All devices for obtaining what is virtually a new remedy by straining old forms and ideas beyond their original intention are liable to this kind of inconvenience. It has been truly said that the enforcement of a substantially just claim 'ought not to depend on a mere fiction over which the courts possess no control.' "

In Phelin v. Kenderdine, 20 Pa. 354, the court says:

"Although the action by a parent for the seduction of his daughter has its technical foundation in the loss of his daughter's services, it is well settled that proof of the relation of master and servant, and of the loss of service by means of the wrongful act of the defendant, has relation only to the form of the remedy, and that the action being sustained in point of form by the introduction of these technical elements, the damages may be given as a compensation to the plaintiff, not only for the loss of service but...