Blagge v. Ilsley

Colt, J.

At the trial, the defendant requested the court to rule that the evidence failed to show such loss of service, resulting from the alleged seduction, as would entitle the plaintiff to maintain this action.

The- plaintiff must prove, first, that he was entitled to the service of his daughter at the time of the injury, and, next, that the ability of his daughter to render service was impaired by the defendant’s unlawful act.

There was evidence from several witnesses, including the plaintiff and the daughter, that the latter appeared strong and *197 Well before the alleged seduction, and that afterwards she became nervous and excitable, and did not appear to be herself. Upon this part of the case, the jury were told that the plaintiff might recover, if they were satisfied that, as the immediate result of the criminal act, the health of the daughter failed, and there was a consequent loss of ability to render service ; and it must have been found by the jury that the proximate effect of the seduction was an incapacity to work.

In the opinion of a majority of the court, it cannot be declared, as matter of law, that this instruction was erroneous, or that the evidence did not justify the finding. The decline in the daughter’s health and spirits directly followed the wrong charged. The daughter was herself a witness, and there was opportunity for the jury to judge of her physical strength and temperament, her natural delicacy and sensibility to the injury alleged. It cannot be laid down, as matter of law, that loss of health would not be the natural, probable and direct consequence of the defendant’s act, although that act was followed by no sexual disease and no pregnancy. Shame, humiliation and mental distress, affecting the sensibilities of the victim and her capacity for faithful service, may well be a probable and natural consequence of the wrong, wholly without regard to the fear of abandonment or exposure.

The case is thus brought within the rule laid down in Abrahams v. Kidney, 104 Mass. 222 , where it was held by this court that it was sufficient to support the action, if the proximate effect of the criminal connection is an incapacity to perform service; as where the wrong committed, without producing pregnancy, or sexual disease, causes bodily injury, or mental distress or disease, impairing health. It was declared that the same principle, which gives the master an action when the connection causes pregnancy or sexual disease, applies when the consequence of the act is loss of health resulting in loss of service. To this extent, the law affords a remedy for the wrong done by the seducer. Loss of service is the technical foundation of the action, and there is no sound distinction between loss of service, as the result of physical disability produced by physical causes alone, and loss of service, the result of mental suffering and disturbance. In fact such is the mutual dependence of the mental and physical organization, *198 such the direct and mysterious sympathy which exists when the healthy condition of either is disturbed, that it seems impracticable to attempt to distinguish between them. The damage to the parent and master in both cases is, at all events, the same.

In the administration of this remedy, courts have been governed by a liberal spirit, and damages not limited to loss of service have always been allowed to cover the real gravamen of the case, namely, the wounded feelings, the mortification and disgrace brought upon the plaintiff and his family by the act. The fiction of service is upheld, but it is applied by the courts so as to afford a substantial and useful remedy for a wrong done. It would defeat the real purpose of the remedy to require in all cases proof of pregnancy or sexual disease. It is the duty of tlie defendant not to cause the servant to deprive the master of the service due; and that duty is equally violated whether the result is effected by improper artifice or by physical injury. The remedy, on principle, is equally clear whether the injury is produced by beating and wounding, by enticing away, or by seduction. In each case, the defendant’s wrongful act has caused a direct injury to the plaintiff’s lawful right; an injury which might fairly have been contemplated by the defendant.

In addition to the cases cited in Abrahams v. Kidney, we refer to Boyle v. Brandon, 13 M. & W. 738, and Manvell v. Thomson, 2 C. & P. 303. In the former case, there was no pregnancy and no disease, the illness of the daughter was caused by distress of mind produced by the defendant’s abandonment, and for that reason was treated as too remote by Pollock, C. B.; but it is to be inferred from the remarks of the judges at the argument, that, if the distress of mind had been the direct result of the seduction, it would have been thought sufficient to support the action. The case went off on another point. In the latter case, it was distinctly ruled by Abbott, O. J., that proof that the niece of the plaintiff, after her seduction and abandonment, was in a state of great agitation, received medical attendance, and was obliged to be watched lest she should do herself some harm, was sufficient to raise the presumption of that loss of service which was necessary to maintain the action. See also White v. Nel *199 lis, 31 N. Y. 405 ; Briggs v. Evans, 5 Ired. 16 , 20; Cooley on Torts, 231.

As to the proof required to establish the relation of master and servant, the instruction given was that the plaintiff might recover if he had not parted with his right to claim his daughter’s service, or proved any act of service however slight; that whether or not the plaintiff had parted with his right to claim her services, or had abandoned her, was a question of fact on all the evidence; that merely permitting her to reside with another person, rendering services to him, would hot amount to an abandonment. The judge also said, in this connection, that it was not necessary to show actual loss of service. But this could not have been under stood as implying that it was not necessary to prove that the ability to render service, when required, was directly impaired by the defendant’s act. The jury had just been told the contrary, in plain and distinct terms. They must have understood by the remark, that proof of acts of service was not necessary, if the right of the plaintiff to his daughter’s service was established. When he has not parted with that right, it is sufficient to prove that she resides with him and is under age, or that, if she resides and is employed elsewhere, he has not lost his right to her service. The technical foundation of the action, namely, the loss of ability to render service to the prejudice of the plaintiff’s rights, is, to this extent, still maintained in the courts of this country, as in England. Blanchard v. Ilsley, 120 Mass. 487 . Kennedy v. Shea, 110 Mass. 147 . Abrahams v. Kidney , above cited. Bartley v. Richtmyer, 4 Comst. 39, 47. Hornketh v. Barr, 8 S. & R. 36. Terry v. Hutchinson, L. R. 3 Q. B. 599. Blaymire v. Haley, 6 M. & W. 55.

The language which the defendant here subjects to criticism must have been used in the sense above indicated, in Hewitt v. Prime, 21 Wend. 79 . There the daughter, who was under age, was made pregnant before suit brought, while living at home. The judge refused to rule at the trial that the plaintiff must prove loss, expense or damage, before suit brought, and Nelson, C. J., declared that acts of service by the daughter were not necessary; it was enough to support the action when the relation of service exists. The authority of that case does not appear to have been questioned in the New York courts. It *200 is the act of seduction which gives the right of action to the parent and master, when that act is followed by pregnancy, sexual disease or loss of health. See Davies v. Williams, 10 Q. B. 725.

The- defendant now further insists that the instructions given were calculated to mislead the jury, because they were not told that it was incumbent on the plaintiff to prove that the condition o£ the daughter’s health was such as to actually incapacitate her from performing such menial labor as the plaintiff could reasonably demand. But, without deciding whether any such qualification of the rule in reference to menial labor exists, it is sufficient to say that no such qualification was suggested or asked for at the trial; on the contrary, the defendant’s request on this subject had reference only to loss of service generally. He cannot now complain that, in answer to those requests, the judge did not take the distinction now suggested.

For these reasons, a majority of the court is of opinion that the defendant has no ground of exception.

Lobd, J. I do not concur in the opinion of my brethren. When the case was under consideration, I laid before them fully all my reasons of dissent. These reasons failed to satisfy them, and it does not seem to me necessary or expedient to encumber the reports by repeating them in full. I content myself with saying, that, after as full and careful an examination as I can make, and with the assistance of the researches of the learned counsel for the plaintiff, and, more than all, of the learning of my associates, I have not discovered an action of this nature which has been sustained by a court of last resort. It' is not contended that, by the defendant’s act, there was either immediate physical injury done, or disease communicated, or the impregnation of the plaintiff’s servant. The claim of the plaintiff is, that his servant’s mental distress, occasioned by seduction by the defendant, is the cause of his loss. If this be so, the act of the defendant was the remote and not the proximate cause of the inability of the servant to labor, and I do not deem it necessary to discuss the question when the cause of action arises, whether at the time the act is committed by the defendant, or at the time when the attention of the victim is called to the enormity of her own misconduct, the remembrance of which deprives her *201 df her capacity to work. If some subsequent personal reflection, some discourse from the pulpit or in the family, or perchance some public rumor, or even internal conviction of wrong, shall bring the subject to a condition of mind in which her capacity to labor is diminished, I do not deem it necessary to inquire whether the act of the defendant, which may well enough be deemed to be the causa causons, is itself the cause of action, or whether the condition of mind of the victim is the cause of the physical inability to perform service.

The action itself is anomalous. At first, the remedy of the father whose daughter was seduced was by an action of trespass quare clausum fregit, and a right of action having been established by the entry of the defendant into the plaintiff’s close, the seduction of the plaintiff’s daughter was admissible in evidence to enhance the damages of the trespass quare clausum. At subsequent periods, different modes of declaring, both in trespass and in case, were resorted to and were sustained by the courts. If anomalies be also allowed in the prosecution of the action, probably no serious harm will follow. There might be some difficulties, if a woman should repent after a promiscuous sinning, and her repentance should disqualify her for labor, or perhaps consign her to an insane asylum, in determining the relative responsibility of those with whom she had engaged in passionate indulgence; but the court happily can relieve itself from all difficulty by requiring that the relative proportion of the injury under the different circumstances shall be determined by the jury. Exceptions overruled.