Lawyer v. Fritcher

• Citation: 29 N.E. 267,130 N.Y. 239
• Parties: LAWYER v. FRITCHER.
• Decision Date: 01 December 1891
• Court: New York Court of Appeals

130 N.Y. 239

29 N.E. 267

LAWYER

v.FRITCHER.

Court of Appeals of New York, Second Division.

Dec. 1, 1891.

Appeal from supreme court, general term, third department.

Action by Peter Lawyer against Peter G. Fritcher to recover damages for loss of services of plaintiff's daughter abducted by defendant. A judgment entered on a verdict for plaintiff was affirmed at general term, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by POTTER, J.:

This action was brought by plaintiff against defendant to recover damages, as alleged in the complaint, for the abduction of plaintiff's infant daughter from the service of the plaintiff, her father, and also for seduction while she was absent from her father's house. It appears that the defendant, who is a man 60 years of age, and has a wife from whom he is not legally divorced, and who is living absent from him, on the 6th of May, 1886, came to the plaintiff's house, and had an interview with the plaintiff as well as his daughter. On the 16th day of May following he again came to the plaintiff's house, and had an interview with him and plaintiff's wife upon the subject of marrying Edith, plaintiff's daughter. During the interview with the plaintiff upon the latter day, upon the subject of the marriage of defendant to plaintiff's daughter, there was a conversation between them in regard to his legal right to contract marriage, and whether the conditions of separation from defendant and his wife were such as to allow of a valid marriage between defendant and plaintiff's daughter. The defendant represented that he had a legal right to marry, and the defendant drew a consent or contract to carry out such design, and induced the plaintiff and his wife to sign it. The consent or contract was in these words: ‘To Home it may Concern: We, the undersigned, are the father and mother of the bearer, Edith Lawyer. Whereas, Edith and P. J. Fritcher, of Sharon, wish to be united, we give our consent to their contracts. Richmondville, May 16, 1886. PETER LAWYER. CATHERINE LAWYER.’ Said Catherine Lawyer was not able to write her name, and Edith was requested to sign her name for her, and did so. After these representations were made, and this instrument signed, the defendant carried Edith to Portlandville, in Otsego county, a distance of about 30 miles from her home and residence of plaintiff; stayed at a public house at that place, and said to the lady who kept the house that he was married; occupied the same bed with Edith on the night of the 17th. The next day the defendant carried Edith to Sharon, Schoharie county, where the defendant resided, and stated to his housekeeper, who was a sister of Edith, that she was his wife. On the night of the 18th of May the defendant and Edith occupied the same room and the same bed. After Edith arrived there, and during the 18th and 19th days of May, there was a conversation between Edith and Julia, her sister, defendant's housekeeper, in which Julia told Edith that the defendant could not marry; that he had a wife living, and was not divorced from her. Edith, the plaintiff's daughter, was about 17 years of age, generally lived in her father's family, and performed service for him, though she did work out occasionally, but her father had received her wages. Among the declarations made at the interview of the 16th between plaintiff and defendant, the plaintiff testifies that the defendant said: ‘I am just as clear from my wife as though I never had married her.’ The plaintiff also testified that he believed such statement to be true. This statement and belief preceded signing the paper above set forth. On the 17th or 18th day of May, and after defendant had arrived at his home, and made the statements above to Julia, she procured from a drug-store in the vicinity of the defendant's residence some poison. Edith partook of that poison, and died of it on the 20th day of May.

The principal question involved in this case is whether the plaintiff proved a loss of service, and damage in consequence thereof, sufficient to maintain the action. The trial judge charged the jury that the plaintiff was not entitled to recover damages for any loss of service by reason of the taking of the poison, and the death of Edith in consequence. Nevertheless the jury, under the charge of the court, found a verdict in favor of the plaintiff of $800, besides costs. The general term was not unanimous in affirming the judgment on the verdict of the jury. One of the learned judges of the general term, as shown by his dissenting opinion, uses the following language, which indicates the view taken by him, and the grounds for his dissent from the affirmance of the judgment: ‘The defendant, a married man over sixty years of age, took plaintiff's daughter Edith, about seventeen years old, from her father's house on Monday, May 17th. He did this with the consent of the parents. But the verdict of the jury establishes that he obtained this consent by fraud. That night he stayed with her at an hotel, and occupied the same bed with her, saying to the landlady that Edith was his wife. * * * The next day, after dinner, Edith became sick. She had taken poison. The day following, Thursday, the 20th, she died from the effects of the poison. Before death she told her sister that she took poison because she did not want to live, and that she did not want to see anybody. There was evidence that Edith had recovered from her usual monthly courses a week before she went away with the defendant, and that before her death her underclothes were spotted with blood, which a physician supposed to be the menstrual flow. The important point in this case is whether on these facts the court could properly submit to the jury the question whether the plaintiff sustained damage other than that of death, for loss of service by reason of the seduction. It will be seen that there is no evidence of seduction before Monday night; no evidence of Edith's condition from Monday night till Wednesday noon, when she took the poison; and, of course, no evidence of pregnancy.’

F. R. Gilbert, for appellant.

Wm. C. Lamont, for respondent.

POTTER, J., ( after stating the facts.)

I should not feel justified, in departing from my rule in this court, not to write an opinion upon the affirmance of a judgment in a common and ordinary case, except to reconcile differences of opinions by the judges of the court below, and to remove any resort to strained or doubtful reasoning to sustain the judgment appealed from, by a brief presentation of a feature of the case that was not distinctly brought out in that court. This action was brought to recover damages which the plaintiff alleged he has sustained by the unwarranted interference of the defendant with plaintiff's right to service. It is as well settled that he who unlawfully interferes with another's right to service, whether it be the service of a male or female, a minor or an adult, is liable for actual or compensatory damages in the same manner, and upon the same grounds, that he would be liable for an unlawful interference with any other property right of another. The plaintiff alleges that he is the father of Edith Lawyer; that at the time of the acts of the defendant complained of by the plaintiff she was 17 years of age, and was residing with the plaintiff, and that he was entitled to her services; and that without the consent of the plaintiff the defendant, on or about the 16th day of May, 1886, enticed and persuaded the said Edith Lawyer, to leave the residence and service of the plaintiff, and to accompany him (the defendant) to Portlandville, in the county of Otsego, etc. The plaintiff also alleges that on the 17th day of May, 1886, the defendant debauched the said...