Fitzgerald v. Connors

• Decision Date: 30 November 1914
• Citation: 92 A. 456,88 Vt. 365
• Parties: FITZGERALD v. CONNORS.
• Court: Vermont Supreme Court

92 A. 456

88 Vt. 365

FITZGERALD

v. CONNORS.

Supreme Court of Vermont. Rutland.

Nov. 30, 1914.

Exceptions from Rutland County Court; Willard W. Miles, Judge.

Action for seduction by Thomas Fitzgerald against Patrick H. Connors, in which defendant pleaded the general issue. Judgment for the plaintiff, and defendant excepts. Judgment affirmed.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Joseph C. Jones, of Rutland, for plaintiff.

Walter S. Penton, of Rutland, for defendant.

HASELTON, J. This is an action on the case for the seduction of the plaintiff's daughter, who was under the age of 18 at the time of the seduction. Trial by jury was had, and verdict was rendered for the plaintiff for $1,200, which was remitted by the plaintiff to $800, and thereupon judgment was entered on the verdict for the smaller sum. The defendant excepted.

At the close of all the evidence, the defendant moved for the direction of a verdict in his favor on the ground that the daughter was emancipated in fact at the time of the seduction. But the evidences does not so show. The evidence shows that she was working away from home for wages, which, for the most part at least, she was allowed to keep; but the evidence also tends to show that she was at home from time to time, and while there helped about the housework, and the outdoor work as well, digging potatoes, milking, cutting corn, and things of that sort.

A second ground of the motion was that the evidence was overwhelming; that the relationship of master and servant did not exist between the plaintiff and his daughter; and that, such relation not existing, there could be no loss of service, and hence no action for seduction. This ground is like the one just considered, and what is said above applies here, and a verdict could not be directed on this ground, for to do so would be to disregard the evidence.

A child was born in consequence of the seduction, but not until the daughter had passed the age of 18, the age of majority of women in this state. Constitution of Vermont, c. 1, art. 1; Sparhawk v. Buell's Adm'r, 9 Vt 41, 72, 73; Young v. Davis, Brayton, 124.

In view of this fact, there was a third ground of the motion, numbered as one, which was based upon the claim that the daughter was emancipated, by operation of law, at the time the child was born. But that is immaterial, as the birth of the child was not the time when the cause of action accrued.

During the trial the plaintiff was asked what effect the knowledge of his daughter's condition, when it came to him, had upon his mind. His answer was taken, under objection and exception, on the ground that such damages were not declared for in the declaration, and he testified in strong terms to his feeling of humiliation. This was admissible without an allegation of special damages. Rollins v. Chalmers, 51 Vt. 592, 596. This exception does not appear to be briefed, but we mention it, since the defendant may take a different view of his brief than does the court.

The defendant submitted requests to charge and excepted to the refusal of the court to comply with his third, fourth, and fifth requests. These related to the question of emancipation, and, while the court did not use that word, it explained the legal points involved in language easily understood and with entire correctness.

The court charged that in order to maintain the action the plaintiff must show, and the jury must find, that the defendant seduced the plaintiff's daughter while she was a minor and under the control of her father, and while her father had a right to her services. This is the law applicable here, and this instruction covered the defendant's requests, so far as they were sound and applicable to the case.

The defendant requested a charge on the presumption of law as to the emancipation of the daughter upon her arrival at the age of 18 years, and complains because this request was not complied with. But the request was properly ignored, for it had no application to this case, and the charge of the court did not permit a recovery if the child was over 18 years of age when seduced. One request made the question of emancipation in fact to depend entirely upon whether the...