Simpson v. Grayson

• Decision Date: 11 April 1891
• Parties: SIMPSON v. GRAYSON
• Court: Arkansas Supreme Court

16 S.W. 4

54 Ark. 404

SIMPSON v. GRAYSON

Supreme Court of Arkansas

April 11, 1891

APPEAL from Clay Circuit Court, J. E. RIDDICK, Judge.

The complaint alleges that, on December 10, 1888, appellant seduced appellee's daughter, from which she became pregnant, causing loss of her services to appellee. The answer denied each allegation of the complaint.

The daughter testified that she was living at appellant's house upon terms of intimacy with his family, though she worked for his wife; that she was under 18 years of age; that appellant paid her wages, but that her father did not receive any part of them; that appellant made frequent advances toward her, which she repelled; that he kept on until she consented, and he had sexual intercourse with her; that she never had intercourse with any other man. On this last point the testimony conflicted. Appellee testified that his daughter, while in appellant's employment, was subject to his right of recall, and that he had not emancipated her that after returning from defendant's employment she was delivered of the child; that his actual expenditures on account of her confinement were $ 30, and the loss of services about $ 50; that, on account of his trouble and his daughter's condition, he suffered a great deal in mind.

There was a jury trial, and a judgment for the plaintiff in the sum of $ 750.

Judgment affirmed.

F. G Taylor and W. S. McCain for appellant.

1. An unchaste woman cannot be the subject of seduction. While the father might recover actual damages if the daughter is unchaste, he cannot recover for wounded feelings. 21 P. 129; 22 Wis. 424; 40 Ark. 486; 2 Caines' Cases, 292; 24 Ark 68.

2. If the daughter was in the service of another, the relation of master no longer exists, and the father cannot recover. Cooley on Torts, 272; Hastings on Torts, 159; 59 Eng. Com. Law; 6 M. & W., 55.

G. B. Oliver for appellee.

The American authorities, almost without exception, sustain the instruction (No. 2) given by the court. 24 Ark. pp., 65-6-7; 2 Gr. Ev., sec. 572, and note A, p. 576; Suth. on Dam., vol. 3, p. 737; Moak's Underhill on Torts, p. 342; Bishop, Non-Cont. Law, sec. 380; Bliss, Code Pl., sec. 28; 32 F. 66.

2. Evidence of bad character only goes in mitigation of damages. 6 Rob. (N. Y.), 138; 17 Iowa 30; 7 Car. & P., 308; 13 Ind. 46; 2 Gr. Ev., sec. 577; Moak's Underhill on Torts, pp. 87, 348; 3 Suth. on Dam., p. 743, n. 6; 24 Ark. 65.

OPINION

COCKRILL, C. J.

The common law regarded the father's action for the seduction of his daughter as an action of trespass for assaulting his servant, whereby he lost her services. It was based upon the relation of master and servant, and not upon that of parent and child; and the measure of damages was such only as a master would recover for a disabling physical injury to his servant. The extent of the recovery has been enlarged by the courts, from the necessity of the case rather than from the principles which govern the action (see remarks of Lord Ellenborough in Irwin v. Dearman, 11 East 27), until compensation is awarded to the parent as such for the shame and mortification which the wrong brings upon him and his family. No action could be maintained by the father for the injury in his parental capacity; but, in the struggle between substantial justice to the parent and the precedents in actions for seduction, the courts in England and America have clung to the latter and striven to attain the former, until the anomaly has been produced of requiring the action to be prosecuted by the father for an injury inflicted upon him in his relation of master, and permitting a recovery in his relation of parent. The theory of an injury to the master is pertinaciously retained as the essential basis of the father's action, but it is now little more than a legal fiction, used as a peg to hang a substantial award of damages upon as compensation, not to the master, but to the head of the family.

It is a logical sequence from that state of the law that proof of the mere nominal relation of master and servant should be sufficient to give the parent a footing in court to recover damages commensurate with his injury. It is accordingly established, in this country at least, that the father may maintain his action for the seduction of his minor daughter, although she is not a member of his household, but is in the actual employment of another, enjoying the fruits of her labor with her father's consent, if he has not relinquished, past the power of recall, his right to control her services. Patterson v. Thompson, 24 Ark. 55; Kennedy v. Shea, 110 Mass. 147; note to Weaver v. Bachert, 44 Am. Dec. 159; Bishop, Non-Contract Law, sec. 380.

The plaintiff in this case brought himself within the rule above stated, and was entitled to maintain his action.

There was proof in the case tending to show that the debauched daughter had had illicit intercourse with other men prior to her intercourse with the defendant. It is argued that the court should have instructed the jury that if they found that to be true, they could return damages only for the loss of services and lying-in expenses. That brings us to the other feature of the case already adverted to.

As the injury which the father, as distinguished from the master sustained by the seduction of his daughter depends, as Addison expresses it, "upon the value of her previous character" (2 Addison on Torts, p. 89), it is competent for the defendant to show that she did not have a good character for...