Moberg v. Scott

• Decision Date: 22 March 1917
• Docket Number: 4028
• Citation: Moberg v. Scott, 38 S.D. 422, 161 N.W. 998 (S.D. 1917)
• Parties: NELLIE MOBERG, Plaintiff and respondent, v. H. F. SCOTT, Defendant and Appellant.
• Court: South Dakota Supreme Court

38 S.D. 422

161 N.W. 998

NELLIE MOBERG, Plaintiff and respondent,

v.

H. F. SCOTT, Defendant and Appellant.South Dakota Supreme Court Appeal from Circuit Court, Brown County, SDHon. Thomas L. Bouck, Judge #4028—Affirmed Porter & Grantham, Fred G. Huntington Attorneys for Appellant.Campbell & Walton Attorneys for Respondent.Opinion filed March 22, 1917

GATES, P. J.

The complaint in this case alleged:

"That the defendant, H. F. Scott, is and for more than 10 years last past has been continuously engaged in the business of conducting a drug store and pharmacy at the city of Aberdeen, Brown county, S. D.That on the 17th day of May, 1905, this plaintiff was married to one August Moberg, and lived and consorted with him as her husband continuously at the said city of Aberdeen until the peace and welfare of her home was destroyed by the unlawful, willful, negligent, malicious, and wrongful acts of the defendant, as follows, to-wit: That about the month of January, 1912, the defendant, being then a pharmacist and the proprietor of and conducting a drug store at the city of Aberdeen, and with full knowledge that this plaintiff was the wife of the said August Moberg, and with full knowledge of the poison-ous and dangerous effects of opium and other commodities of which opium is an ingredient, and with full knowledge of its effects to create a growing desire and craving for additional quantities thereof, and without the prescription of any licensed physician of the state of South Dakota or elsewhere, and without a written permit or license from the authorities of the said city of Aberdeen, and without complying with the laws of the state of South Dakota, and without due inquiry as to whether the said August Moberg was aware of the insidious and dangerous character of opium, or whether the said August Moberg was then in fact ignorant of the effect of opium, and well knowing that this plaintiff was his wife, did unlawfully sell and administer opium and commodities of which opium is an ingredient to the said August Moberg, and that, although this plaintiff frequently protested to the said H. F. Scott against his selling and administering such opium and commodities, and expressly warned and prohibited the said defendant from continuing such sales or administration of opium to her husband, well knowing that the constant use of such drug had created an irresistible appetite on the part of the said Moberg, well knowing that said drug was not being used for medicinal purposes, but through and on account of the craving that had fastened itself upon him by long use thereof, whereby he was becoming and had become an opium fiend, and was thereby wrecking his body and mind, the said defendant, notwithstanding the protests and warnings of plaintiff, continued to sell and administer quantities of opium and commodities containing opium to the said August Moberg, said sales becoming more frequent until they occurred almost every day, so that thereafter and about the month of January, 1913, the said August Moberg became a sTave to the opium habit, and was thereby deprived of moral sensibility and unfit and incapable at all times thereafter to give the aid, support, affection, society, companionship and consortium which he had theretofore given, and which was due to plaintiff, his wife, and thereby at all times thereafter until the death of said August Moberg on March 17, 1914, wrongfully, knowingly, and willfully depriving plaintiff of the aid, support, affection, society, companionship, protection, and consortium of her husband, and causing her grief, mortification, and shame, and that finally, in consequence of the defendant's unlawful, willful, and malicious acts, the said August Moberg, on the 17th day of March, 1914, died at the home of the plaintiff in the said city of Aberdeen.That by reason of the said wrongful, unlawful, and malicious acts of the said defendant, this plaintiff, for more than one year prior to the said 17th day of March, 1914, was required to, and did during a great part of the time, nurse and care for the said August Moberg during frequent spells of illness caused and brought about by reason of the said unlawful and malicious acts of the defendant, and be-cause thereof, and because of the loss of his aid, support, affection, society, companionship, and consortium during the whole of said period, this plaintiff suffered great and grievous mental anguish, physical agony, mortification, and shame, all to her damage in the sum of $10,000.Wherefore plaintiff demands judgment against defendant for the sum of $10,000 actual damages, and $5,000 as exemplary damages, together with the costs and disbursements of this action."

The acts alleged to have been done by defendant were not only morally wrong, but were in express violation of section 2861, Pol. Code.The defendant demurred to the complaint for want of sufficient facts and for plaintiff's lack of capacity to sue.Demurrer overruled.Defendant appeals.

Section 32, Civ. Code, provides:

"The rights of personal relation forbid: 1.The abduction of a husband from his wife or of a parent from his child.2.The abduction or enticement of a wife from her husband, of a child from a parent, or from, a guardian entitled to its custody, or of a servant from his master.3.The seduction of a wife, daughter, orphan sister or servant, and, 4.Any injury to a servant which affects his liability [ability] to serve his master."

Counsel for appellant ask us to hold that because, subdivision 1 prohibits the abduction of husband from wife while subdivision 2 prohibits the abduction or enticement of wife from husband, there is no remedy for any enticement of the husband from the wife short of actual physical carrying off.Looking further into that section, we come upon subdivision 4.No doubt counsel would admit that if defendant had done the same acts to plaintiff's servant, to such extent as to affect the servant's ability for service, plaintiff could recover.But if appellant's contention is correct, while plaintiff may sue for injuries caused to the relation of master and servant, she may not sue for injuries caused to the higher and more sacred relation of husband and wife.Such a discrimination is intolerable.It could only be sustained by a strict, literal interpretation of said section 32 and by shutting one's eyes to many other Code provisions.We might hold, as did the California court in Humphrey v. Pope, 122 Cal. 253, 54 Pac. 847, that the word "abduction" in subdivision is used in its broadest sense, and thus justify this action solely upon that subdivision of the section, but we prefer to base our decision on broader grounds.

Said section 32 does not purport to assert that the rights of personal relation may not forbid other things than those mentioned.It does not say that the forbidden things are only those set forth in the four subdivisions, so that if there are other provisions of law which recognize plaintiff's right of action, she can recover in this case.

Const. art. 6, §20, provides:

"Every man (person) for an injury done him in his property, person or reputation shall have remedy by due course of law."

Section 2422, C. C., provides:

"For every wrong there is a remedy."

Section 2286, C. C., provides:

"Every person who suffers detriment from the unlawful act or omission of another may recover from the person a compensation therefor in money, which is called damages."

Section 2287 provides:

"Detriment is a loss or harm suffered in person or property."

Section 7, C. C., provides:

"All original civil rights are either: 1.Rights of person; or, 2.Rights of property."

Section 27, C. C., provides:

"Besides the personal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations."

It is clear therefore that the injuries done to one in his person, within the meaning of the above section of the Constitution, and the loss or harm suffered in person, within the meaning of section 2287, C. C., include injury to ones personal rights as well as physical injuries to the person.So that, but for the question of coverture, the present action is fully warranted by statute.But by section 105, C. C., the disability of coverture, so far as the present action is concerned, was entirely removed.That section reads in part as follows:

"The wife shall have and retain after marriage all the civil and property rights of a single woman ... and for any injury to her reputation, person or property, she may sue in her own name without joining her husband as party...