McClure's Executors v. Miller

• Citation: 11 N.C. 135
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1825
• Parties: McCLURE'S EXECUTORS v. MILLER.

11 N.C. 135

McCLURE'S EXECUTORS

v.MILLER.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1825.

An action by a father for the seduction of his daughter abates by the death of the father, and cannot be revived by his executors.

CASE, brought in RUTHERFORD by Arthur McClure against the defendant for the seduction of his daughter.

After the cause was at issue, Arthur McClure died, his death was suggested on the record, and his executors were made parties; and at the last term, when the cause was reached in order, Nash, J., who presided, upon motion of defendant's counsel to dismiss, held that by the death of Arthur McClure the suit had abated, and gave judgment accordingly, whereupon the executors appealed.

TAYLOR, C. J. Thi3 case depends upon the construction of Laws 1805, ch. 679; the words of which, so far as they relate to this case, are, "that no action on the case for damage done to personal property shall abate by the death of either plaintiff or defendant."

This is an action on the case, brought by a father for the seduction of his daughter, and the question is, Has it abated by his death ? Considering the nature of the action, and the extent of injury and suffering which usually follow the crime of seduction, I should be gratified to discover a satisfactory ground for the opinion that the action might be revived. I think the plaintiff's counsel has presented the case in the strongest point of view it admits of; yet after all it must be admitted that the action is but in form and sound for an injury done to property, but is in substance for a wrong done to the person of the child, and to obtain satisfaction for the wounded feelings of the parent. The loss of service is in most cases imaginary; for though some evidence must be given of acts of service to satisfy the form, yet in the estimate of damages the jury usually look beyond this to the injury done the child. The probata are much more extensive than the allegata, and damages may be given as a compensation for the loss which the father has sustained in being deprived of the society and comfort of his child, and for the dishonor

which he receives. Hence evidence is admissible as to the circumstances of the father's family, their general good conduct, and the number of his children. Actions of this sort are brought for example sake; and although the plaintiff's loss may not amount to twenty shillings, the jury do right in giving liberal damages. 3 Wills., 19.

It is said in Bedford v. McKowl, 3 Esp., 119: "In point of form, the action only purports to give a recompense for loss of service; but we cannot shut our eyes to the fact that this is an action brought by a parent for an injury to his child. In such a case I am of opinion the jury may take into their consideration all that he can feel from the nature of the loss. They may look upon him as a parent losing the comfort as well as service of his daughter, in whose virtue he can feel no consolation, and as the parent of other children whose morals may be corrupted by her example."

As the child herself has no remedy, and the offense is only indictable under peculiar circumstances, it would pass with impunity were not these forced circumstances employed to give the courts cognizance. It is characterized by a sensible writer as one of the quaintest fictions in the world that satisfaction can only be come at by the father's bringing the action against the seducer for the loss of his daughter's service during her pregnancy and nurturing. Paley Moral Phil., 200.

From these considerations it appears to me that this action must be considered as a tort done to the person, unaccompanied by any injury to personal property, and it is accordingly so classed by writers on pleadings. 2 Chitty, 268. It is, therefore, abated by the plaintiff's death.

HALL, J. The sole question here is whether this action survives to the plaintiffs or abates by the death of their intestate. There is no doubt but it abated at common law. By the act of 1799, New Rev., ch. 532, it is declared that no action of detinue, or trover, or action of trespass, where property either real or personal is in contest, and such action of trespass is not merely vindictive, shall abate, etc., by the death of either party, but the same may be revived, etc. The present action is one in form brought to recover damages for the loss of the services of the daughter; but it is in substance brought to recover damages for the disgrace and degradation of which the defendant is the author. In this view of it, which I think we must unavoidably take, it does not involve in it a contest respecting either real or personal property; and I think, too, that the damages are, legally speaking, vindictive, for they cannot be measured by any injury which property may have sustained, but are dependent altogether, under the circumstances of the case, upon a sound discretion, intended to make reparation to the injured party as far as human tribunals can do it, for complete reparation in such cases is beyond their reach.

The next and only other act on the subject was passed in 1805, New Rev., ch. 679. It declares that no action of trespass vi et armis, or trespass on the case, etc., brought to recover damages done to property, either real or personal, shall abate by the death of either plaintiff or defendant, etc., but the same may be revived. If we consider this action in substance as brought to recover vindictive damages, as mentioned in the act of 1799, it is not made to survive by this latter act, for it is not brought for an injury done to either real or personal property. I, therefore, think it will not survive, but abates by the death of the plaintiff. The judgment of the Superior Court must be

HENDERSON, J., assented. Affirmed.

There is one part of the foregoing case on which no question was made, but which does not seem entirely free from doubt. The...