Willeford v. Bailey

• Decision Date: 21 April 1903
• Parties: WILLEFORD v. BAILEY.
• Court: North Carolina Supreme Court

43 S.E. 928

132 N.C. 402

WILLEFORD v. BAILEY.

Supreme Court of North Carolina

April 21, 1903

Appeal from Superior Court, Union County; Robinson, Judge.

Action by Thomas F. Willeford against P. S. Bailey. Judgment for plaintiff, and defendant appeals. Affirmed.

It was not error for the judge to send an officer to inquire of the jury if they were likely to agree that night, so that he could determine whether to remain up, or whether to continue the term and retire.

Armfield & Williams and Adams & Jerome, for appellant.

Redwine & Stack, for appellee.

CLARK C.J.

This is an action for seduction of plaintiff's 17 year old daughter by the defendant. The defendant noted 34 exceptions on the trial, which he reduced to 28 in making out case on appeal. In the brief, upon further reflection, his counsel very properly abandoned 14 of these. Of the remaining 14, it is only necessary to consider assignments of error Nos. 12 21, 24, 26, and 28, for the others are without merit and need no discussion.

No. 12 was to the admission of a deposition on the ground that the witness was a resident of the county; that no commissioner was named in the notice, and no notice was given before the appointment of the commissioner. If there be any merit in these objections, the objection should have been made in writing, and should have been passed upon before the trial began. Davenport v. McKee, 98 N.C. 500, 4 S.E. 545; Brittain v. Hitchcock, 127 N.C. 400, 37 S.E. 474. Besides, the objections were cured by the defendant appearing before the commissioner, and cross-examining the witnesses without taking any exception to the regularity of the commission. Barnhardt v. Smith, 86 N.C. 473; Davison v. Land Co., 118 N.C. 368, 24 S.E. 14. The witness being adjudged unable to talk and physically unable to remain in court, the deposition was admissible. Code 1883 1358(4). The defendant himself introduced the testimony of same witness, taken at another time, which was substantially to the same purport.

Assignment of error No. 21 was to the refusal of the following prayer for instruction upon the measure of damages: "You can allow the plaintiff none for wrong to his daughter, but only for wrong to himself." The wrong done to the daughter is the wrong done to the plaintiff. It is the very essence and basis of the plaintiff's cause of action. In McClure's Ex'rs v. Miller, 11 N.C. 136, it is said (quoting almost verbatim from Lord Eldon in Bedford v. McKowl, 3 Esp. 119): "We cannot shut our eyes to the fact that this is an action brought by a parent for an injury to the child." In those cases, as in this, the action was brought by the father. The allegation of loss of services and personal injury is simply an outworn fiction. The action is really for the humiliation, the mental suffering and anguish, inflicted by the seducer, and for punishment to the seducer, which is brought by the father still if the girl is an infant ( Scarlett v. Norwood, 115 N.C. 285, 20 S.E. 459; Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268, in which it is held that the jury can allow him "punitive damages for the wrong done him in his affections and the destruction of his household"); and this is necessarily based upon the wrong done him, through her, by the deceit and fraud in accomplishing the seduction of the daughter. In Hood v. Sudderth, 111 N.C. 215, 16 S.E. 397, the court held that if the female was of age she could maintain the action in her own name (a ruling since followed in the decisions in Missouri, Arkansas, and other states); for there is in this last case no foundation whatever for the flimsy fiction of the loss of services. The court certainly could not have given the last part of the prayer, "only for wrong to himself"; and, part of the prayer being improper, the whole may be rejected. State v. Neal, 120 N.C. 613, 27 S.E. 81, 58 Am. St. Rep. 810. The purport of the prayer was that the father could recover only for "loss of services by him," which was clearly a misconception of the purpose of the action.

Assignment of Error No. 24. The court was merely giving a contention of plaintiff's counsel, in summing up, that if the girl was not with the defendant in Union, S. C., as she testified, the defendant could have introduced evidence to show that it was false. There was no error in this.

Assignment of Error No. 26. The court charged the jury: That if they "should answer the first four issues 'Yes'--should find from the evidence and the greater weight thereof that the defendant enticed and persuaded plaintiff's daughter, against the wishes of her father to leave her home and go to South Carolina for the purpose of seducing her, and that he harbored and detained her in South Carolina, and, while so harboring her, that he seduced and debauched plaintiff's daughter, and if they should further find from the evidence that plaintiff's daughter was an innocent and virtuous woman, of good character, before she left home, and that the defendant is a man of considerable wealth--then they might give plaintiff punitive damages, and in law no verdict they would render would be excessive, for the loss of virtue and the destruction of character are matters that cannot be measured in dollars and cents, and the amount of 'smart money' which they might give was entirely with them and within their discretion. That, if they should allow exemplary damages, the amount should be regulated by all the evidence and circumstances in the case, and should be based on the character and conduct of the parties to the action, the character of the wrong done--if they should find from the evidence that defendant did entice away and seduce plaintiff's daughter--on the conduct and standing of plaintiff and his family, the financial circumstances of the defendant, and on all the facts and circumstances connected with the whole transaction. That the law left the whole question of the amount of damages to their discretion, but that they should exercise that discretion intelligently, and not arbitrarily, nor should they act from prejudice or other improper motive, but that...