Bixby v. Dunlap

• Decision Date: 21 March 1876
• Citation: 56 N.H. 456
• Parties: Bixby v. Dunlap.
• Court: New Hampshire Supreme Court

56 N.H. 456

Bixby v. Dunlap.

Supreme Court of New Hampshire

March 21, 1876

Master and servant---Seduction of servant---Action for---Damages.

When the relation of master and servant exists by virtue of a valid contract, the master may maintain an action on the case against any person who knowingly and wilfully induces the servant to break the contract and abandon the service.

Ordinarily in actions for torts, the rule of damages is compensation in money for the money value of such damage as would naturally and reasonably be expected to happen to the plaintiff by reason of the wrongful act.

When the element of malice enters into the wrong, a more liberal rule of damages prevails, and the jury, taking into consideration all the circumstances of the wrong, ought to give as compensation what, in their judgment, it is reasonable that the plaintiff should receive and the defendant pay.

Damages estimated by this rule are sometimes termed vindictive exemplary, or punitive; but these terms do not imply that the award of such damages is intended by law as a punishment for violation of criminal law.

Such damages are not a sum awarded in addition to the actual damage and separate from it, but are the whole damage estimated by the more liberal rule which prevails in the case of malicious wrong.

Being intended as compensation for a wrong, and not as punishment for the violation of criminal law, such damages are not open to the objection that they expose the defendant to a double punishment

ACTION ON THE CASE. Plea, not guilty. Writ dated May 3, 1872 contains five counts. The first sets out a contract for service between said plaintiff and one Albertina Larson, and charges the defendant with wrongfully and unjustly enticing, persuading, and procuring said servant to make default, and abandon said contract. The second count alleges that said Albertina Larson was the servant of the plaintiff, of which the defendant had knowledge, and that he did unlawfully, wrongfully, and unjustly entice, persuade, and procure her to depart from and out of said plaintiff's service. The third count alleges that said Albertina Larson departed and went away from and out of the plaintiff's service without consent, and that the defendant, knowing the premises, wrongfully and unjustly received her into his service, and harbored, detained, and kept her in his service from May 20, 1872, hitherto. The fourth count alleges that the said Albertina Larson was a servant of the plaintiff, and left the plaintiff's service without his consent, and the defendant, after notice and request not to do so, unlawfully, wrongfully, and unjustly harbored, detained, and kept said servant in his service from May 20, 1872, hitherto. The fifth count alleges said Albertina Larson to be the servant of the plaintiff, and that said defendant, knowing the premises, did wrongfully, unlawfully, and maliciously induce, persuade, and procure, by fraud, covin, and deception exercised over and upon said Albertina Larson, to depart from and out of the service of the plaintiff, and so remain from May 20, 1872, hitherto.

It appeared in this case that one Charles A. Bergland was engaged in the business of bringing servants from Sweden to America for such persons as desired. Said Bergland testified that in the fall of 1871 the plaintiff employed him (Bergland) as his agent to obtain for him a servant to do general housework in his family in Nashua. In November following Mr. Bergland had a servant whom the plaintiff could have had, but he declined, and concluded to wait until the following spring, when Mr. Bergland would be in Sweden and get him such a servant as the plaintiff desired. When the plaintiff employed Bergland as his agent to get him a servant, he advanced to said Bergland the sum of fifty dollars to pay passage-money and expenses, which was the price at that time. During the winter Mr. Bergland went to Sweden, and while there, in the city of Gottenburg, entered into a written con-

tract, as the agent of Bixby, with one Albertina Larson, a translation of which contract is as follows:

"Agreement with Mr. Charles A. Bergland from Boston. When undersigned, by Mr. Bergland, gets free passage and board as emigrant from Gottenburg to Boston, America, I engage myself to do general housework in the family of W. Bixby, in the city of Nashua, for one year, accounted from the day I begin my services, with wages during said year of seventy-five dollars currency besides the passage-money, and to leave Gottenburg for Boston, May 3, this year. If there should be any sufficient reasons at the time of my arrival in Boston that should prevent me from serving in said family, or any other family directed to me by Mr. Bergland, with the same wages, I have to pay the bearer of the contract fifty dollars currency as amends for passage and expenses.

"GOTTENBURG, April 29, 1872.

ALBERTINA LARSON,

Pen in the hand."

This contract remained in the possession of said Bergland from the time it was executed up to the time of the trial. On May 20, 1872, a large number of servants arrived in Boston, and among the number was Albertina Larson. The defendant having been informed by a Mr. Wellman that there were two spare servants who wanted to go to Nashua, went to Boston with Wellman to secure one for his family. One Welhelmia Lindberg was pointed out to him by Bergland as one of said spare servants, and said Dunlap selected her. Afterwards said Larson being pointed out by Wellman as the other spare servant, he selected her; but before leaving the wharf, Wellman received from Bergland a list of the girls going to Nashua, and the names of their employers, in which list said Larson's name was put down as going to Mr. Bixby; and Wellman testified that Bergland informed him that Larson was brought over for said Bixby, and that he (Wellman) so informed said Dunlap at the wharf. It also appeared that, on their arrival at Nashua, said Dunlap sent the Lindberg girl to Bixby's house, and the Larson girl to Wellman's, and the next morning went to Wellman's with his carriage and carried the Larson girl to his own house. There was evidence tending to show that she supposed she was at Bixby's house for the first three days. She entered Dunlap's service May 21, 1872, and so remained until January, 1873. On May 29, 1872, said Bergland having been informed that the Larson girl was at the wrong place, visited Nashua to induce her to leave the employ of the defendant and enter into the service of the plaintiff, which she declined to do. It was claimed by the plaintiff that efforts were made by Dunlap to induce her to remain in his employ; but this was denied by the defendant and his family. In July following, said Bergland called upon the defendant for fifty-five dollars, and on July 17, 1872, the defendant paid that sum to Bergland, taking a receipt of which the following is a copy:

"Boston, July 17th, 1872. Received of Mr. A. H. Dunlap fifty-five dollars for cost of procuring one domestic---Albertina Larson---from

Sweden, to be delivered in Boston soon as she can be procured. Sum advanced to be refunded from wages after arrival by the person ordered, or considered part of the wages for the first year.

(Signed) CHARLES A. BERGLAND."

This receipt is endorsed on the back with the name of Charles A. Bergland, and also the following: "Albertina Larson came to Mr. Dunlap's May 21st, 1872." Said Albertina Larson never entered into the employment or service of the said plaintiff, and never performed any labor for him. The agreement, dated Gottenburg, April 29, 1872, was introduced in evidence, subject to the defendant's exception, and the jury were instructed that it was a valid contract between Albertina Larson and Bergland, and the question whether Bergland acted as the agent of the plaintiff in making it was left to the jury. The defendant requested the court to instruct the jury as follows:

1. That upon the evidence and upon the contract the relation of master and servant never subsisted between Albertina Larson and the plaintiff.

2. That the contract made by her and Bergland was not valid and binding; that there was no mutuality, and under it the plaintiff cannot maintain this action. (The court declined to give the foregoing instructions.)

3. That, in order to be liable for enticing her away, there must have been an active and wrongful effort to detach her from the plaintiff's service [by offering inducements to that end]. (The court gave this instruction, except the part included in brackets, but declined to give that.)

4. That under the contract she had the right upon her arrival here to go where and engage with whom she pleased; that if she refused for any reason, valid or not, to go where Bergland directed, she had the right to do so; and the only damages that could be recovered of her would be the amount of the passage-money. That having been paid to Bergland, the plaintiff cannot recover. (The court declined to give this instruction.)

5. That the measure of damages in this case is the value of the services lost up to the time of the commencement of the action, viz., from May 21 to May 31 inclusive; the reasonable and necessary expenses incurred in trying to get her back, or in getting one to supply her place; and damages for the loss of time, trouble, and injury sustained until the commencement of this suit, May 31, 1872. (The court gave the foregoing instruction, with the addition of the following words inclosed in brackets, to the giving of which the defendant excepted.) [And for vexation and distress of mind caused by the unlawful act of the defendant.]

6. That the plaintiff is not entitled in this action to exemplary damages. (The court declined to give this instruction.)

The court...