Snider v. Newell

• Decision Date: 12 May 1903
• Citation: 44 S.E. 354,132 N.C. 614
• Parties: SNIDER v. NEWELL.
• Court: North Carolina Supreme Court

44 S.E. 354

132 N.C. 614

SNIDER v. NEWELL.

Supreme Court of North Carolina

May 12, 1903

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

Action by J. F. Snider against W. B. Newell. From a judgment of nonsuit, plaintiff appeals. Reversed.

In an action for the seduction of plaintiff's daughter, a demurrer to plaintiff's evidence presents the question whether the plaintiff's testimony is sufficient to sustain a finding of such loss of service as is necessary to maintain the action.

Jones & Tillett, for appellant.

Burwell & Cansler, for appellee.

CONNOR J.

This is an action prosecuted by the plaintiff for the recovery of damages alleged to have been sustained by reason of the seduction by the defendant of his daughter, whereby he "lost the services of his said daughter, and the reputation of his family was thereby greatly injured, and he suffered great mental anguish and humiliation." The defendant admitted that he had illicit carnal intercourse with the daughter, but denied that the plaintiff lost her services thereby, or suffered otherwise. The plaintiff introduced evidence tending to show that his daughter, when about 18 years of age, was seduced and debauched by the defendant; that he had repeated acts of sexual intercourse with her in the plaintiff's house, in which his daughter resided as one of his family; that such intercourse was had at night, the defendant going to the room of the daughter entering through her bedroom window; that the plaintiff knew nothing of the defendant's conduct until it had continued about a year, when he charged the defendant with it, when he admitted the truth of the charge. The plaintiff testified that he was greatly shocked; that the matter greatly pressed on his mind, and he thought they were all disgraced; that the daughter was, prior to the sexual intercourse with the defendant, chaste, pure, and virtuous; that defendant is a married man. The defendant introduced no testimony, but moved the court to dismiss the action as upon a nonsuit. The court allowed the motion, the plaintiff excepted and appealed.

The judgment of his honor is based upon the conclusion of law that the plaintiff had not shown any loss of service, or any diminution of the daughter's capacity to serve him, and could not, for the other injuries alleged, maintain the action. The demurrer to the evidence admits the truth of the plaintiff's testimony, together with every reasonable inference to be drawn therefrom most favorable to the plaintiff, but presents the question whether the plaintiff's testimony is sufficient to base a finding of such loss of service as is necessary to maintain the action. The plaintiff has alleged a loss of service, mental anguish and mortification. We have been unable to find, after a very careful and diligent search, a case in England or America in which the declaration or complaint has failed to allege loss of service. The action at common law was trespass vi et armis, or trespass on the case per quod servitium amisit. Briggs v. Evans, 27 N.C. 16. The gravamen of the action was that the daughter was the servant of the plaintiff, and that by her seduction he lost her services. Taylor, C.J., in McClure's Executors v. Miller, 11 N.C. 133, says: "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 services during her pregnancy and nurturing." In Kinney v. Laughenour, 89 N.C 365, it is said: "The action for seduction does not grow out of the relation of parent and child, but that of master and servant and the loss of services. It is true that this is a fiction of the law." In Hood v. Sudderth, 111 N.C. 215, 16 S.E. 397, Clark, J., said arguendo: "It is true that at common law an action for seduction could technically only be brought by a father, master, or employer and that damages were alleged per quod servitium amisit for value of services lost. This though in fact no services were lost, and even when a woman was of full age, and the father was not entitled to recover services of any one else. It was well understood that this was a mere fiction, and damages were awarded for wrong and injury done her." The question decided in that case does not arise upon this record. In Scarlett v. Norwood, 115 N.C. 284, 20 S.E. 459, there was an allegation of loss of service, seduction, etc., "thereby damaging said plaintiff, and for medical care, nursing, tendance," etc. The action was brought by the father. In Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268, the plaintiff alleged that her daughter was in her actual service, residing with her in New Berne, and being under 21 years old, and unmarried. In Willeford v. Bailey (at this term) 43 S.E. 928, there was an allegation of loss of service, abduction, etc., the action being brought by the father, the girl being under 21 years of age. Nash, J., in Briggs v. Evans, supra, says: "It is but a figment of the law to open the door for the redress of his injury. It is the substratum on which the action is built. *** He comes into court as a master; he goes before the jury as a father." The case of Anthony v. Norton, 60 Kan. 341, 56 P. 529, 44 L. R.

A. 757, 72 Am. St. Rep. 360, unmistakably holds that "the action could be maintained on the bare relation of parent and child alone." It is one of the most striking illustrations of the conservatism of the profession and the bench that, although there has been a constant protest against the necessity for resorting to this "quaintest fiction" or legal "figment," the courts have not felt justified in abandoning it. We find most careful and accurate counsel in all of the cases alleging loss of service. Sir Frederick Pollock, in his work on Torts, pp. 222, 223, says: "There seems, in short, no reason why this class of wrongs [injuries in family relations] should not be treated by the common law in a fairly simple and rational manner, and with results generally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But, as a matter of history (and pretty modern history), the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations not by openly treating them as analogous in principle, but by importing into them the fiction of actual service, with the result that in the class of cases most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of the family, but whether he can make out a constructive 'loss of service."' He discusses the question with his usual clearness and force, saying: "The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Sergeant Manning wrote more than 50 years ago: 'The quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread among strangers."' While, in a certain sense, "fictions have had their day," and are not to be permitted to hamper the courts in the administration of justice, we must be careful that we permit not ourselves, because we live in days of Codes of Civil Procedure, to conceive that we may altogether break away from the wisdom and experience of the past. As was said by the great Chief Justice Pearson in regard to estoppel: "According to My Lord Coke, an estoppel is that which concludes and 'shuts a man's mouth from speaking the truth.' With this forbidding introduction, a principle is announced which lies at the foundation of all fair dealing between man and man, and without which it would be impossible to administer the law as a system." Armfield v. Moore, 44 N.C. 161. Sir Henry Maine, in his great work on Ancient Law, tells us that a legal fiction is "a rude device, absolutely necessary in early stages of society; but fictions have had their day." He says: "It is not difficult to see why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change, which is always present. At a particular stage of social progress, they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them--the fiction of adoption, which permits the family tie to be artificially created--it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first step towards civilization. *** To revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of the law. But at the same time it would be equally foolish to argue with those theorists who, discovering that fictions have had their uses, argue that they ought to be stereotyped in our system." Pages 25, 26. He wisely concludes that it will be necessary to "prune them away."

However interesting and inviting this field may be, it is hardly proper to investigate it in the decision of this case. We are not called upon to say more than that courts should move forward, and yet cautiously, in dispensing with even "fictions." We must bear in mind that the law of procedure as well as substantive law is not a thing to be manufactured, but is the result of growth and careful conservative progress. While we find no...