Dunlap v. Linton

• Decision Date: 05 October 1891
• Docket Number: 41
• Citation: 22 A. 819,144 Pa. 335
• Parties: JAMES DUNLAP v. JOHN A. LINTON
• Court: Pennsylvania Supreme Court

22 A. 819

144 Pa. 335

JAMES DUNLAP v. JOHN A. LINTON

No. 41

Supreme Court of Pennsylvania

October 5, 1891

Argued May 22, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.

No. 41 July Term 1891, Sup. Ct.; court below, No. 21 February Term 1890, C.P.

On January 25, 1890, James Dunlap issued capias in trespass against John A. Linton, for the seduction of the plaintiff's daughter. Issue.

At the trial on February 19, 1891, it was shown by testimony on behalf of the plaintiff that, on or about August 16, 1883 his daughter, Annie Dunlap, then about sixteen years of age was seduced by the defendant and a child then begotten; that in January, 1884, the defendant went to Quincy, Ill.; that a female child was born on May 16, 1884, and that defendant remained in Illinois until January, 1890, when he returned to Lancaster county, and this suit was brought.

At the close of the case on the evidence, the court, LIVINGSTON P.J., charged the jury in part as follows:

This is an action of trespass, or rather, trespass on the case, for the seduction of a daughter of the plaintiff by the defendant. It is founded exclusively on the relation of master and servant, not on that of parent and child. And the gist of the offence is the consequential loss of service.

Section 2, act of April 19, 1843, P.L. 348, declares: "That the action of seduction may be maintained and sued by any mother where the father is deceased, of the female seduced, to recover damages for loss of service, or for such aggravations as may have attended the commission of the injury."

It has been held, that in an action by a parent for the seduction of a daughter, evidence of a prior promise of marriage is inadmissible; inasmuch as such promise, and a breach of it, are the subjects of an action by the daughter herself. In this action, the father, suing for damages, may prove the value of her services. And an acquittal of the defendant, on an indictment for seduction under the act of assembly, is no bar to recovery of exemplary damages in a civil action, brought by the father for the loss of service. And the law seems to be the same, if there was an indictment for fornication and an acquittal.

Where the female seduced is the plaintiff in an action for seduction, and the statute of limitations is the plea, the statute of limitations begins to run from the date of the seduction, because the cause of action accrues to her, and is completed at the date of the commission of the act of seduction. The statute, in such cases, commences to run from the time the legal injury accrues. By legal injury we mean such injury as entitles the party to maintain an action, even though the damage is merely nominal. Therefore, where the injury is such that a right of action accrues, the statute begins to run from that time, however slight the damages.

The idea, that implied, equitable exceptions, which the legislature has not made, are to be engrafted by the courts on a statute of limitations is now generally abandoned. Neither the daughter nor her father can maintain an action for the act of seduction alone, after the expiration of six years from its commission. . . .

But our laws give to the parent of a minor daughter, such as this plaintiff's daughter, Annie B. Dunlap, is shown to have been, a minor residing at home with her father, in his service, his servant, an action against her seducer, not only for the commission of the act of seduction, but to recover damages for the loss of her service, or for such aggravations as may have attended or been the consequences of the commission of the seduction. [It cannot, therefore, in our judgment, be legally held, that the statute begins to run against a parent, where his daughter has been seduced, from the moment of her illicit connection with her seducer, for the reason that the law gives him a right to recover among other things for the loss of her service, and her nursing and care during pregnancy and confinement, etc., which do not take place until some time after the seduction, but are caused by and in consequence of the seduction.]

The fact of defendant's absence was no prevention of the father's bringing suit against him. Neither he nor his daughter were bound to await his return, to bring suit against him. In the case now trying, the plaintiff in his statement claims for loss of the service of his daughter, for nursing, care and attention of his daughter, and of her child born May 16, 1884; for doctor's bill, lying in expenses, maintenance of the child, etc.; all of which occurred after, some of them a considerable time after the seduction, but were the consequences of the seduction; and most of his claim for these things arose within six years prior to the commencement of this action against the defendant, the child being born May 16, 1884, and the action commenced January 25, 1890.

The learned gentlemen trying this case are correct in saying they find no direct decision on this point by the Supreme Court of Pennsylvania. The question is a new one in this commonwealth. [The only case which appears to fully cover the point is found reported in Kentucky, in which state their laws include a statute of limitations somewhat like our own, except that the time for the commencement of such action is limited to one year, instead of six years as in our act. The Supreme Court of Kentucky say that, in an action by a parent for the loss of service and expenses, in consequence of the seduction of his daughter, the limitation of one year begins to run from her recovery after the birth of the child. And this seems to be reasonable; for all consequences, damages and injuries, for which the parent will be enabled to recover, will be fully developed, brought to view, and capable of proof by that time, and therefore form his complete cause of action. The statute is therefore no bar to a recovery in this case.]

The defendant requests the court to charge you:

1. That the facts in this case prove that more than six years had elapsed after the cause of action had accrued before the suit was brought, and the verdict of the jury should be for the defendant.

Answer: Refused.

The jury returned a verdict for the plaintiff for $550. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning inter alia for error:

6. The answer to the defendant's point.

10, 11. The portions of the charge...