Magnuson v. O'Dea

• Decision Date: 04 October 1913
• Citation: 75 Wash. 574,135 P. 640
• Court: Washington Supreme Court
• Parties: MAGNUSON v. O'DEA et al.

135 P. 640

75 Wash. 574

MAGNUSON v. O'DEA et al.

Supreme Court of Washington

October 4, 1913

Department 1. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action by Lizzie Magnuson against Edward J. O'Dea, individually and as bishop of the diocese of Seattle, and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions.

Geo Donworth and Farrell, Kane & Stratton, all of Seattle, for appellant O'Dea. Gordon & Easterday and Blackburn &amp Gielens, all of Tacoma, for other appellants.

Frank H. Kelley, of Tacoma, for respondent.

GOSE J.

This is an action for damages upon three causes of action. In the first cause of action it is alleged that the defendants, other than the defendant O'Dea, kidnapped the plaintiff's daughter, Marjory Rieman, who was then over 16 years of age and under 18 years of age. The second cause of action is in legal effect a charge of malicious prosecution on the part of the defendants other than O'Dea, in instituting and prosecuting a proceeding in the juvenile court at San Francisco. The third cause of action charges the institution and prosecution of a like suit at the city of Tacoma. In each of these suits it was charged that the plaintiff was an immoral woman and unfit to be intrusted with the custody of her daughter. The case was dismissed as to the defendant corporations and Edward J. O'Dea, as bishop of the diocese of Seattle, and retained as to him and all the other defendants in their private capacities. There was a verdict against all the remaining defendants on the first cause of action for $19,033, and against all the defendants except Edward J. O'Dea on the second and third causes of action for $1,500 and $2,500, respectively. The verdicts were made effective by a judgment from which all the defendants have appealed.

We will first consider the appeal of the defendant Edward J. O'Dea. It is admitted that he took no part in the kidnapping, and that he did not know the whereabouts of Marjory. The court instructed the jury in effect that there was no liability upon him, unless he participated by 'some act or deed' in harboring and concealing her, and that mere knowledge on his part that some one had kidnapped her imposed no duty upon him to conduct an inquiry for the purpose of ascertaining who the guilty parties were. We think the law was correctly given. 38 Cyc. 485, 486; Adams v. Freeman, 9 Johns. (N. Y.) 117; Reed v. Rich, 49 Ill.App. 262; Wamsganz v. Wolff, 86 Mo.App. 205. It is argued, however, that he, as bishop of the diocese, owed a duty to the respondent which he failed to discharge, and that because of that failure she was deprived of the custody of her daughter for a period of about eight months. There is nothing in the record which reaches the stature of evidence which rends to show that he owed any duty to the mother. The daughter had been attending a Catholic academy in the city of Tacoma conducted by the Sisters of Visitation. His codefendants were, respectively, the sisters in charge of the school, the rector of St. Leo's Church in Tacoma, and Louis I. Lefebvre, a lawyer by profession. The respondent took her daughter from the school to Seattle on the 7th day of February, 1911, and during the evening the daughter absented herself and returned to the Rectory at Tacoma, and the rector took her to the home of the appellant Lefebvre, where she remained until February 17th, when the rector took her to Portland, Or., where she remained in a Catholic academy until about the 27th day of June. He then took her to San Francisco, and again placed her in a Catholic academy, where she remained until some time in September, when she was restored to her mother. The record shows that the bishop had authority over the spiritual welfare of the sisters and the rector, but that he had no control over the temporal affairs of either. The respondent called three several times at the home of the bishop and sought, but failed to obtain, an audience with him. When the bishop heard of the disappearance of the child he asked the rector of St. Leo's Church, who was also the chaplain of the school, if he knew anything concerning her, and was informed that he did not. As against this evidence we have only the opinion of the respondent that it was the duty of the bishop: (1) To assume that his coappellants knew the whereabouts of the child; (2) to coerce a confession from some one of the guilty parties; and (3) to require them to restore the child to the respondent. The law devolved no such duty upon him. He has committed no legal wrong, and the sins of others cannot be visited upon him. He occupies the same position as would the minister in charge of any other church or the head officer of a fraternal society. Such officials are not responsible for the torts of their brethren, unless participated in or ratified and approved by them. 38 Cyc. 485-6. The court erred in denying his motion for a directed verdict and for a judgment non obstante. The records shows that the respondent was divorced from the father of Marjory; that he was living at the time of the trial; that after her divorce the respondent married Pontius Magnuson; that she was living with him at the time of the abduction and at the time of the trial; and that Marjory had been a member of the family from the time of this marriage. The remaining appellants, upon these facts insist: (a) That Marjory's father is a necessary party plaintiff in the first cause of action; and (b) that if this view be rejected, the stepfather is a necessary party plaintiff in all the causes of action.

The first contention is without merit. The respondent and the stepfather had had the custody and control of the child for several years and had supported her. While the record does not disclose in whose custody she was placed at the time of the divorce, the inference is clear that the father had abandoned her.

In Anderson v. Aupperle, 51 Or. 556, 95 P. 330, the grandmother had the custody of a minor granddaughter whose mother was dead and whose father had abandoned her. It was held that the grandmother stood in loco parentis, and could sue for damages arising from the seduction of the grandchild.

In Yost v. Grand Trunk Ry. Co., 163 Mich. 564, 128 N.W. 784, 31 L. R. A. (N. S.) 519, Ann. Cas. 1912A, 988, it was held that where a father had abandoned his minor son, the mother could sue for the loss of his services, caused by the negligence of the defendant.

The stepfather is a necessary party plaintiff in all the causes of action. 1 Rem. & Bal. Code, §§ 181, 182; 2 Rem. & Bal. Code, § 5932; White v. McDowell, 132 P. 734; 29 Cyc. 1669, 1670; Eickhoff v. Sedalia, 106 Mo.App. 541, 80 S.W. 966.

In White v. McDowell we held that 'there is a duty upon a stepfather to support the minor children of his wife by a former husband, and that duty is something more than a charity.'

The...