Briggs v. Evans

• Decision Date: 31 December 1844
• Court: North Carolina Supreme Court
• Parties: LEWIS BRIGGS v. JOHN J. EVANS.

5 Ired. 16

27 N.C. 16

LEWIS BRIGGS

v.JOHN J. EVANS.

Supreme Court of North Carolina.

December Term, 1844.

A father can maintain either an action on the case or an action of trespass for the seduction of his daughter, living with him or being under his control.

Nor, where pregnancy is a consequence of the seduction, is it necessary for the father to wait till the birth of the child, to entitle him to full damages.

An actual contract for services between the father and his daughter, though she be of age, is not required to be proved. It is presumed from any the slightest services rendered by her in the family.

The action rests upon the assumed relation of master and servant, and not upon that of father and child.

Appeal from the Superior Court of Law of Yancy County, at the Fall Term, 1844, his Honor Judge BATTLE presiding.

This was an action on the case for the seduction of the plaintiff's daughter. For the plaintiff it was proved by his daughter, that she was seduced by the defendant some time in the month of September, 1841--that pregnancy was the consequence of this seduction, and, that on the 11th day of the following June, she bore a child--that, at the time of the seduction, she was living with her father and performing service in his family, and continued to do so, until the March following, when she left her father's house and went to live with her grandmother--that she remained with her grandmtoher until sometime after the birth of her child, when she returned to live in her father's family--that, about five or six weeks after she became pregnant, her health was somewhat impaired in consequence thereof, and she became less able to perform the services usually required of her--and that, just before she left her father's family, she became altogether unable to discharge some of these services, though the lighter ones, such as knitting, &c. she could perform as well as usual. She further testified, that she became twenty-one years of age in the month of November, 1841. The writ was issued the 31st of March, 1842.

The court instructed the jury, that, before the daughter became of age, the action might be sustained by the father in his paternal character for the loss of the services of the daughter, and that, after she became of full age, it must be sustained in the character of master for the loss of the services of his servant--that in this action the loss of some service must be proved, in order to entitle the plaintiff to recover any damages at all, but if the evidence satisfied them of the loss of any services of the daughter, as daughter or servant, in consequence of the defendant's act of seduction, then they might take into their consideration the anguish and disgrace brought upon the plaintiff and his family, in order to enhance the damages.

The jury found a verdict for the plaintiff. The defendant moved for a new trial, 1st. Because the action ought to have been trespass vi and armis, and not case; 2ndly. Because the action could not be maintained before the birth of the child; 3dly. Because the action could not be maintained without proof of an actual contract for services after the daughter became of age. The court over-ruled all the objections, because it deemed them unfounded in law, and the last for the additional reason, that it had not been so contended for in the argument of the defendant's counsel, and no specific instructions to that effect had been prayed.

Judgment being rendered for the plaintiff, the defendant appealed to the Supreme Court.

Francis for the plaintiff . The Judge was right in each of the positions, to which the defendant excepted:

I. The form of action was proper. Where the injury complained of forms the subject of an action of trespass, and there is also a consequential damage, either case or trespass may be brought at the option of the plaintiff. 2 Stephen N. P. 1005. Hence in cases of seduction and crim. con. the plaintiffs have sometimes declared for the original act of wrong as a trespass, alleging the loss of service or society under a per quoad, and sometimes in case for the consequential damages resulting from the act of wrong, as the injury complained of. In Woodward v. Walton, 2 Bos. & Pul. N. R. 476, and Tullidge v. Wade, 3 Wils. 18, the form of action was trespass. In Dean v. Peel, 5 East 45. Irwin v. Dearborn, 11 East 23. Weedon v. Timbrell, 5 T. R. 357, dictum of Grose, J. Speight v. Oliveira, 2 Stark. R. 435, per ABBOTT, Ch. J. Holloway v. Abell, 32 Eng. C.L.R. 615. Verry v. Watkins, idem. 520. Hewitt v. Prime, 21 Wen. R. 79, and Mastin v. Payne, 9 John. R. 387, the plaintiff declared in case. And although both forms of declaring were supported, yet there is no conflict between the cases. They are founded upon and reconcilable by the position before stated, that the plaintiff may, at his election, bring either action. That he may do this, is expressly held by the Supreme Court of New York, Moran v. Dawes, 4 Cow. R. 412, and by the House of Lords, Chamberlain v. Hazelwood, 7 Dowl. P. C. cited in 2 Steph. N. P. 1006. 3 Step. N. P. 2353. So are the opinions of the text writers and the forms given by them. Vide Step. N. P. ut supra. 1 Chitty's Pl. 134. 2 Chitty's Pl. 641; and note (d.) 643; note (g.) 850.

II. The action was properly brought before the daughter's confinement. 3 Steph. N. P. 2353. Joseph v. Cavander,Roscoe Ev. 483. Stiles v. Tilford, 10 Wen. R. 338.

III. A contract by the daughter to serve the plaintiff was not necessary to be proved, in order to support the action, although the daughter was of full age at the time of the seduction. It was sufficient that she lived with her father as a member of his family, and rendered actual services, however small and unimportant. Tullidge v. Wade, ut supra. Bennet v. Allcott, 2 T. R. 166. Moran v. Dawes, ut supra. See also, Mastin v. Payne, ut supra, and Nickleson v. Stryker, 10 John. R. 115.

No counsel for the defendant in this court.

NASH, J.

Three objections were urged before the Superior Court. The first, because the action ought to have been trespass and not case; the second, because the action could not be sustained, before the birth of the child; and thirdly, because the action could not be sustained without proof of an actual contract for services, after the daughter became of age. These objections were over-ruled by the presiding Judge, and we think very properly.

It is unnecessary to point out the distinguishing marks between the actions of trespass and case, and the necessity, in ordinary cases, of adopting the form of action appropriated to the cause of complaint. It is admitted by text writers, and decided in many cases, that the plaintiff, in an action for seduction, may adopt either form at his option. He may either bring trespass for the direct injury, laying it with a per quod servitium amisit, or in case for the consequential damage. 3 Stephens, N. P. 2351, 2354. That trespass may be brought, is shewn by the cases of Woodward v. Walton, 2 N. R. 476. Tulledge v?? Wade, 3 Wilson, 18--and that case may, by Dean v. Peel, 3 East 43. Heavitt v. Prime, 21 Wend. 79. Martin v. Payne, 9 Johns. Rep. 387. Speight v. Olivera, 3 Stark....