Maguinay v. Saudek

• Decision Date: 31 December 1857
• Citation: 37 Tenn. 146
• Parties: JULIUS MAGUINAY v. JOSEPH SAUDEK.
• Court: Tennessee Supreme Court

37 Tenn. 146

JULIUS MAGUINAY

v.JOSEPH SAUDEK.

Supreme Court of Tennessee.

December Term, 1857.

FROM DAVIDSON.

This is an action on the case for seduction, from the circuit court of Davidson. At the May term, 1857, before Judge Baxter, verdict and judgment were for the defendant. The plaintiff appealed in error.

McEwen, McCampbell, Woods, and Merritt, for the plaintiff in error; N. S. Brown and Foster, for the defendant in error.

McKinney, J., delivered the opinion of the court.

This was an action on the case for the seduction of Ellen Jonnard, the step-daughter of the plaintiff, who at the time of her seduction was, and still is, a minor. Judgment was rendered against the plaintiff in the circuit court, and the case is brought here by an appeal in error.

The record shows that the plaintiff's cause of action and right of recovery were sufficiently established in every material respect. It likewise discloses the causes of the failure of the action, the admission of a mass of irrelevant and illegal testimony, and the application of erroneous principles in the instructions to the jury.

The question was made, on the trial, whether the plaintiff, as stepfather, could maintain the action. Upon this point the court stated “that if the plaintiff took the step-daughter to reside with him, as a member of his family, the law would presume that she rendered service in consideration of maintenance,” etc. This is correct, as far as it goes; but the law is not fully stated, as the question in all its aspects and bearings required.

The husband is not, by law, bound to maintain a child of the wife by a former husband. But if he receives such child into his own house, he is then considered as standing in loco parentis, and is responsible for the maintenance and education of the child so long, during its minority, as it lives with him; for by so doing he holds the child out to the world as part of his family. 2 Kent's Com. 192. This is precisely the obligation of a father, as respects the support of his minor child; and the obligation and duty being the same, it would seem necessarily to follow that the corresponding right to the service and control of the child should be the same. The duty of protection of the minor child must also be held to be the same in the case of a step-father, who has adopted and incorporated as a member of his family the child of his wife by a former husband, as in the case of the natural father; and if so, the former, it would seem, should be entitled to the same mode of redress for all injuries or wrongs to the child, affecting his rights, as the latter. And perhaps no just discrimination, as regards the measure of redress, can be based upon the difference of relation of step-father and natural parent, when we look to the true grounds upon which, by the recent decisions, damages are allowed in this action--namely the disgrace brought upon the injured female, and consequent dishonor and suffering visited upon her family. It follows, therefore, that, for the purpose of this action, a step-father who has adopted the child of his wife may not only maintain the action, but that it must be governed by the same principples and rules of evidence as if the suit were by the father. If there be just ground of discrimination between the cases, as respects the quantum of damages, growing out of the circumstances of the particular case, this will be open to the observation of the court and jury on the trial, and may be safely left to their discretion. We have held, in Parker v. Meek, 3 Sneed, that this action may be maintained by any one standing in loco parentis, and that, as respects the form, it rests on fictitious grounds, and that, in substance, it is a mode of redressing and punishing one of the most aggravated private injuries to the family of the person seduced. In the case of a minor, service is not necessary; nor is it essential that the minor child should be living in her father's family at the time of the seduction, or birth of the child. It is enough that the parent was entitled to, and might have commanded, her services; in such cases, for all the ends of this action, the law will presume the relation of master and servant, and service likewise.

Having stated these general principles, in consequence of the views entertained of this case in the court below, we pass to the consideration of another portion of the instructions of the court to the jury.

It seems to have been assumed, on the trial, as a ground of defence to the action--though without any sufficient foundation, from the proof before us-- that the plaintiff was the mere creature of his wife and family. And with reference to this assumption the court stated to the jury “that the husband had a right, in law, to be the head of the family, and was presumed to assume that position, in the absence of proof to the contrary.”

“But it was competent to show by proof that in point of fact he was not the head or governor of the family; that he in fact exercised no authority, government, or control over it; that he was a mere cypher and that instead of being served by the members of the family, he became their...