Hutcherson v. Durden

• Decision Date: 20 July 1901
• Court: Georgia Supreme Court
• Parties: HUTCHERSON . v. DURDEN.

39 S.E. 495

113 Ga. 987

HUTCHERSON .

v.DURDEN.

Supreme Court of Georgia.

July 20, 1901.

LIMITATIONS—SEDUCTION.

An action by a father to recover damages for the seduction of his daughter is barred by the statute of limitations, unless brought within two years from the time the right of action accrued.

(Syllabus by the Court.)

Error from superior court, Emanuel county; W. W. Larsen, Judge pro hac.

Action by Leonard Hutcherson against E. L. Durden. Judgment for defendant, and plaintiff brings error. Affirmed.

Geo. M. Warren, for plaintiff in error.

Alfred Herrington, for defendant in error.

FISH, J. This was a suit brought by a father to recover damages for the seduction of his daughter, who, according to the petition, was unmarried and living with him at the time the cause of action arose. At the trial, "after the plaintiff had closed his evidence, the defendant swore a number of witnesses, and then moved orally to dismiss plaintiff's case upon the ground that the declaration showed upon its face that the case was barred by the statute of limitations. The plaintiff then introduced in evidence the suit as originally brought between the parties for the same subject-matter, filed October 1, 1895, * * * and the order withdrawing the same at October adjourned term, 1896, prior to the filing of the present suit [on the] 22d day of January, 1897. Defendant then renewed his motion to dismiss plaintiff's suit." The court sustained the motion, and the plaintiff excepted.

It is contended here by counsel for the plaintiff in error that the motion to dismiss, being predicated upon a ground that would not have been good in arrest of judgment, should have been made at the appearance term, and could not have been lawfully entertained by the court during the trial of the case. So far as appears from the bill of exceptions or the record, this is the first time that this point has been raised. It does not appear that any objection was made to the court's entertaining and passing upon the motion to dismiss. This court can only determine questions which were raised in the court below. As no objection appears to have been made to the motion to dismiss, the plaintiff will be presumed to have waived any valid objection, if such there were, which might have been made thereto. The only ruling which appears to have been made by the trial court was upon the merits of the motion. Consequently the only question properly before this court for decision is whether or not the plaintiff's cause of action was barred by the statute of limitations when the original suit was brought The defendant in error contends that, under section 3900 of the Civil Code, it was then barred, as more than two years had elapsed after the right of action accrued. The section cited reads as follows: "Actions for injuries done to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year." Is a suit brought by a father for the seduction of his daughter, within the meaning of this section of the Civil Code, a suit "for injuries done to the person"? A similar question arose in Johnson v. Bradstreet Co., 87 Ga. 79, 13 S. E. 250, and the decision therein rendered is decidedly in point. There the statute under consideration amended section 2967 of the Code of 1882, which provided that no action for a tortshould "abate by the death of either party where the wrong-doer received any benefit from the wrong complained of, " by providing that no action "for homicide, injury to the person or injury to property shall abate by death, " and the question which invoked a construction of the amending statute was whether an action for libel was abated by the death of the plaintiff. The decision was that the action did not abate in consequence of the death of the plaintiff, it being held that the words "injury to the person" were not restricted to mere bodily or physical injuries, but extended "to all injuries to the person." Mr. Justice Lumpkin, who delivered the opinion, said: "Some light is thrown upon the question at issue by reference to the position which the amended section occupies in the Code. Title 8 of part 2 of the Code treats of 'torts, or injuries to persons or property.' Chapter 2 of that article treats of 'injuries to the person.' This chapter is divided into three articles. The first treats of 'physical injuries, ' the second of 'injuries to reputation, ' and the third of 'other injuries to the person.' According to this classification, it will be seen that injuries to reputation are included in the chapter dealing generally with injuries to the person. The article relating to physical injuries treats only of injuries to the body; that relating to the reputation includes and defines libel and slander; and the remaining article of that chapter deals with still other personal injuries, such as false imprisonment, malicious arrest, and injuries to health. All of the foregoing injuries, as has been shown, are classed under the general subdivision covering injuries to the person. it is more than probable that the legislature, in making this new law a part of the Code, intended that it should harmonize with its surroundings; and in amending this section it was doubtless their deliberate purpose that the words used in the amending act should be construed and understood with reference to the existing arrangement and classification of the law of torts, in which this new law found its place." Now, if we look further into the classification of the law of torts than it was necessary for the learned justice to do in the case which the court then had under consideration, we find that section 4 of article 3, the title of which article is, "Other Torts to the Person, " treats of "indirect injuries to the person, " and that under this designation are grouped the section of the Code giving a husband "a right of action against another for abducting or harboring his wife"; the section giving a husband a right of action "for adultery, or criminal conversation with" his wife; the section giving a father, "or to the mother, if the father be dead, or absent permanently, or refuses to sue, a right of action for the seduction of a daughter, unmarried and living with her parent"; and the sections giving "a father, or if the father be dead a mother, " a right of action "against any person who sells or furnishes spirituous liquors to his or her son, under age, for his own use, and without his or her permission, " and "a like right of action against any person who shall play and bet at any games of chance with a minor son for money or other thing of value." In our present Civil Code these same sections are found under the subtitle "Indirect Injuries to the Person, " and all that appears above in reference to the classification of the law of torts in the Code of 1882 applies to the Civil Code. It is, we think, therefore, evident that the meaning of the expression "injuries to the person, " as understood by the codifiers, and within the scheme of classification adopted in the Code, was not confined to mere physical or bodily injuries, but embraced all actionable injuries to the individual himself, as distinguished from injuries to his property, and equally evident that in the opinion of the codifiers the seduction of an unmarried daughter, living with her parent, was, relatively to that parent,...