Hood v. Sudderth
| Decision Date | 21 December 1892 |
| Citation | 16 S.E. 397,111 N.C. 215 |
| Parties | HOOD v. SUDDERTH. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Caldwell county; J. F. GRAVES, Judge.
Action by E. E. Hood against R. B. Sudderth for damages for breach of promise of marriage, and for the seduction of plaintiff in which defendant was arrested. From an order of the superior court affirming an order of the clerk, denying a motion to set aside the order of arrest, defendant appeals. Affirmed.
In an action by an unmarried woman, over 21 years of age, the complaint alleged that, defendant and plaintiff being engaged to be married, the former repeatedly solicited sexual intercourse, and finally, upon his urgent solicitations, she did submit to his embraces, trusting to his declaration that he would marry her in a month; that she allowed the intercourse to continue until she became pregnant, of which fact she informed defendant; that he designated a day and procured a license for their marriage, but subsequently left the country, and refused to marry her; that "by reason of the belief she had in his honor, and because of his contract to marry her, she was seduced, and is pregnant; that by reason thereof she has been caused great distress, and has been greatly damaged." Held, that while the complaint may be construed as an action for breach of promise to marry with the aggravation of seduction, it may also be construed as an action for "fraud and deceit," or for "injury to character and person," or for "seduction."--
It is alleged in the complaint that the plaintiff, being an inmate of the home of the defendant, and a dependent and employe of his mother, was seduced by the defendant under promise of marriage. It is alleged that, the defendant and plaintiff being engaged to be married to each other, the former repeatedly solicited sexual intercourse, saying that they would soon be married; that it would make no difference, and would be no harm,--which solicitations the plaintiff repulsed, but that after repeated solicitations her resistance was overcome, and "about the 1st of April 1891, upon his urgently begging her to submit to him, saying that in a short time they would be man and wife, and that they were already as good as married, she did submit to his embraces, fully trusting to his most solemn declaration that he would marry her in a month from that time, 'before anybody would ever find out anything,' as defendant solemnly promised and declared; that fully believing and trusting in the honor and faith of the defendant, that he would marry her in a month, she allowed the intercourse between them to go on for three or four weeks, until it became evident to her that she was most probably with child which fact she communicated to defendant, and begged him to save her from shame and ruin, as he had promised to do," whereupon defendant appointed the 24th of May, 1891, for the marriage, and procured the marriage license, but subsequently left the county and refused to marry her. It is further alleged that "by reason of the belief she had in his honor and good faith, and because of his contract and agreement to marry her at an early day, she was seduced, and as a consequence of such seduction is now pregnant and will in due time become the mother of a child, of which the defendant is the father; and that by reason of his forsaking and abandoning her, and refusing to marry her, as he contracted to do and solemnly promised to do, she has been put to great distress and suffering, suffering mental anguish and bodily pain, and bringing sorrow and distress upon herself and her family, and in consequence of which she has been greatly damaged." In the affidavit it is set forth "that the said Robert Sudderth did, under promise of marriage, seduce and lead her astray, in consequence of which she is about to become the mother of a child, of which he is the father, and that he refuses to comply with his agreement and contract." The defendant moved before the clerk to set aside the order of arrest which had been issued in this case, and that he be discharged from custody on the grounds" (1) that the facts stated in the complaint filed in this cause, and in the affidavit also filed herein, do not entitle the plaintiff to have the defendant arrested, and do not justify an order for the arrest of this defendant; (2) that, this being an action for damages for breach of contract of marriage, the order of arrest was improvidently granted, and should be vacated; (3) that this is not one of those cases where an order for the arrest of the defendant could be granted." The motion was refused by the clerk, and defendant appealed. On hearing the appeal, his honor, GRAVES, J., affirmed the ruling of the clerk, and the defendant appealed to this court.
Edmund Jones, for appellant.
S. J. Ervin, for appellee.
The Code, § 291, subsec. 4, provides that the defendant may be arrested in a civil action when he "has been guilty of a fraud in incurring the obligation for which the action is brought," or "when the action is brought to recover damages for fraud and deceit." If the allegations are taken to be true, (and they must be, for the purposes of this motion,) the defendant, by false and fraudulent representations as to the nature and consequences of the act he solicited, and by means of undue influence, taking advantage of the position of the plaintiff as his affianced wife, the trust and confidence thereby obtained, and her absence from her relatives and friends and natural protectors, and her isolation in his home and dependent position there, inflicted this gross wrong and outrage upon her, and thereafter abandoned her, leaving his home for a distant place, and refusing to marry her. Taking the allegations to be true, it needs no argument or citation of opinions of other courts to show that the defendant has wronged the plaintiff, and that in accomplishing his purpose he has been guilty of "fraud and deceit." The word "seduction," ex vi termini, imports as much. Indeed, Acts 1885, c. 248, makes it a felony. To procure gratification of his lust, the defendant has taken advantage of a dependent girl, violated the laws of hospitality, and by false representations and undue influence inflicted a wrong upon the plaintiff. Surely, this was a tort committed by "fraud and deceit," and an action lies to recover damages for the same. The injury to the woman's character is irreparable, and the procuring her to be with child might well, under such circumstances of fraud, be held an injury to her person. If so, the defendant's arrest would have been warranted, also, under the first subsection of the Code, § 291, which authorizes arrest "where the action is for injury to person or character." It would seem that it must be so, since it is held in Hoover v. Palmer, 80 N.C. 313, that "the seduction of the daughter is an injury to the person of the father," within the meaning of this section. If that is so, it would be difficult to see why, when the action is brought by the woman herself, who alleges that she was seduced by the fraud, deceit, and undue influence of the defendant, and, made pregnant by him, and her character ruined, there is not injury to her person, as much so as there would have been to the person of her father, if he had brought the action, as he might have done formerly even when the daughter was of full age, if living with him. This would seem beyond question. But in addition, under the letter and spirit of the present constitution and system of procedure, this action could be brought by the woman herself, not merely for the "fraud and deceit," but for the wrong known as "seduction," and the defendant arrested, under subsection 2, § 291, of the Code. It is true that at common law an action for seduction could technically only be brought by a father, master, or employer, and that damages were alleged per quod servitium amisit, for value of services lost, and this though in fact no services were lost, and even when the woman was of full age, and the father not entitled to recover her services of any one else. It was well understood that this was a mere fiction, and that damages were awarded really for the wrong and injury done her. Indeed, damages were always allowed out of proportion to any possible estimate of the value of services, and even when no services were lost, as when there was no pregnancy. In fact, the highest damages were often awarded precisely in those cases where the woman, by her social position, was not expected to render any services of value to the father or master or other plaintiff. The Code, § 177, having provided that an action should be brought by the real party in interest, it should be beyond controversy that, where an action is for seduction of a woman of full age, she, and not the father, is the proper one to bring the action. The constitution, art. 4, § 1, provides that "feigned issues" should be abolished. To give this constitutional provision its common-sense construction, it would seem that the "feigned issue," in actions for seduction, of a loss of services, and for damages based thereon, was abolished, and the action should and does rest on the true issue of damages for the wrong done. For centuries damages have been awarded on that basis, and a more transparent fiction than that the action of seduction is for the value of services was not known to the law. As just said, in many cases no services were lost, or they were without value, and sometimes the nominal plaintiff had no right to claim them. While ordinarily, at common law, an action for seduction could not be brought by the woman, there are instances in which it has been allowed, (Doe v. Horn, 1 Ind. 363; Smith v. Richards, 29 Conn. 232;) and in many states the right of action...
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