Magee v. Holland

The opinion of the court was delivered by Elmer, J.

Before the abolition of the tenure in chivalry, it was held, as a doctrine of the common law, that the ab- *94 duel ion of his heir, was an injury for which the father might maintain an action, and recover, by way of damages, the value of his right of marriage. Reeves, in his work on the Domestic Relations, 293, suggests that inasmuch as all the children are heirs in this country, the action may be sustained for taking away any of them. But the damages for the abduction of the heir were restricted to the value of the marriage; and the father being no longer entitled to any such value, the taking away and marrying his heir does him no injury for which a civil action will lie upon that principle. 5 Coke 108; 9 Coke 113; 10 Coke 130; Cro. Eliz. 55; Ib. 849. In the case of Barham v. Dennis, Cro. El. 770, the declaration ' was in trespass, by a father for taking and imprisoning his daughter, without alleging her to be his heir or any loss of service, and damages were assessed for the taking and imprisoning separately. Three of the judges were of opinion that the action could not be sustained. Glanvilie held that “ the father hath an interest in every of, his children, to educate them and provide for them, and he hath his comfort by them; wherefore it is not reasonable that any should take them from him, and to do him such an injury, but that he should have his remedy to punish it.” The case was thereupon adjourned, and was afterwards settled by arbitrament. 3 Blackstone’s Com. 141, gives the weight of his authority to the opinion of Glanvilie, and I think it is to be regretted that this reasonable doctrine did not prevail. There does not seem, however, to have been any case in England or America, where a father has recovered damages for the abduction of his children, the uniform language of the cases being that he can only sustain his action where there has been'actually or constructively a loss of service. Itr the case of Hall v. Hollander, 4 Bar. & Cress. 660, the Court of King’s Bench, in England, sustained the ruling of the majority of the judges in Barham v. Dennis as clear law. And subsequently, in the case of Grinnell v. Wells, 7 Man. & G. 1033, the Court of Common Pleas held the same doctrine.

*95 The case of Hall v. Hollander has been somewhat questioned in some of the American cases, but the general doctrine has been substantially adhered to. In the case of Whitney v. Hitchcock, 4 Denio 461, the damages in an action for assault and battery of the child were restricted to the actual loss of service, mainly on the ground that the child could also sue for the same act. In Dennis v. Clark, 2 Cush. 347 , it was held that if a legitimate infant child, a member of his father’s household, and too young to be capable of rendering any service to his father, is wounded or otherwise injured by a third person, and the father is thereby necessarily put to trouble and expense in the care and cure of the child, he may maintain an action against such person for an indemnity. The same decision was made in the case of Durden v. Barnett, 7 Ala. 169 . In the case of Wodel v. Coggeshall, 2 Metc. 89, the judge instructed the jury that, by law, a father may maintain an action against another for seducing away a minor son from his custody, protection and service; but it appearing that the son was not under the care and custody of the father, and was not taken from his employment, it w'as held that there could be no recovery. And see Steels v. Thacher, Ware 91; Ford v. Monroe, 20 Wend. 210 ; Cowden v. Wright, 24 Wend. 429 ; Plummer v. Webb. 4 Mason 380 ; Wilt v. Vickers, 8 Watts 227 ; Rising v. Dodge, 2 Duer 48 .

The action for debauching and seducing a daughter is the most ordinary action by a parent for an injury to his child, and the remedy in this case has been carried as far, if not farther, than in any other. Loss of service is held iu all the cases to be an indispensable condition upon which the action must be maintained. Service, however, will in many cases be presumed, and the weight of authority appears to be, that if the child is a minor, and the parent has not relinquished or lost his right to claim her services, it is not necessary that she shall reside at home. This is the recognized doctrine in this state. Dean v. Peel, *96 5 East 45; Davis v. Williams, 10 Q. B. 725; Blaymire v. Haley, 6 M. & W. 54; Griffiths v. Teetgen, 22 E. L. & E. R. 371; Martin v. Payne, 9 Johns. 387 ; Hewitt v. Prim, 21 Wend. 79 ; Nickleson v. Stryker, 10 Johns. 115 ; Bartley v. Richtmyer, 4 Comst. 38; Emery v. Gowen, 4 Greenl. 33; Hornketh v. Barr, 8 Serg. & R. 36; Roberts v. Connelly, 14 Ala. 235 ; George v. Van Horn, 9 Barb. 523 ; Vossel v. Cole, 10 Misso. 634; Pray v. Gorham, 31 Maine 240 ; Vanhorn v. Freeman, 1 Hal. 322; Coon v. Moffett, Penn. 583; Taylor v. Vanderveer, 4 Harr. 22 .

Deferring to these authorities, it must be held, I think, as the well-established law, which, however unreasonable originally, it is too late now to disturb, that a parent’s right of action for the abduction or injury of his children must be founded on the loss of their services, or for actual expenses and trouble in curing them, while minors under his roof. . The charge that the action might be sustained Without any proof of loss of service, was, therefore, perhaps, erroneous. But there was ample proof of such loss. The jury had a right to infer it from the fact that they were minors of from the age of three to six, residing in their father’s family. Acts of service were also sworn to. The children were forcibly taken out of the state, and up to the time of the trial, more thau six years after the occurrence; had not returned, so that there was good reason to believe the father would lose the value of their services during the whole time of their minority; and this being a natural and probable result of the defendant’s act, the jury had a right to take if into consideration. The plaintiff naturally and properly pursued them, and thus incurred much expense and trouble. In the case of Hall v. Hollander,-before 'referred to, which was an action for injuring the plaintiff’s son, of the age of two and a half years, the expense attending whose cure was provided for by the defendant, the judge who tried the cause offered to submit the question to the jury, whether the child was capable of performing services to which any value could *97 be attached. The right, of the plaintiff to recover the necessary expenditure he incurred in pursuing the defendant, if he had a right to recover at all, was not questioned on the trial nor in this court.

There having been a good foundation shown for the action upon the strictest principles of law, was the rule of damages laid down at the trial erroneous? Besides the loss of service and the actual and necessary expense of the pursuit, the jury were instructed that they had a right to compensate the plaintiff, so far as damages could compensate, for the injury done to his feelings; and that they might look at all the circumstances attending the taking of the children out of the possession of the Jill her and out of the state, and give such damages as they should deem reasonable to vindicate the rights of the plaintiff and to prevent similar abuses. This was in accordance with the law, as stated by Ch. Just. Abbott, in Hall v. Hollander, who said that when the foundation of loss of service existed, courts of justice have allowed all the circumstances of the case to be taken in consideration, with a view to the calculation of the damages. It was also in accordance with the opinion of the Supreme Court of the United Stales, in the case of Day v. Woodworth, 13 How. 371 , that it is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence, rather than the measure of compensation to the plaintiff'.

The right of the jury to consider all the circumstances of the ease, and to award exemplary damages, necessarily drew with it the right to consider the injury done to the feelings of the father, as well as all the other circumstances of aggravation, It was very different from a ease of injury arising from an act of more negligence. The circumstances of aggravation were, in my opinion, of peculiar enormity, and high as the damages seem, I should *98 not have been willing to interfere with the verdict, had the question been submitted to this court whether they ought to be considered so excessive as to warrant a new trial on that ground.

It was not insisted, on behalf of the defendant, that exemplary damages cannot be awarded in arty case, that principle being too well established in this state to admit of question. The argument urged was, that to justify such damages, there must be fraud, wantonness, malice, or oppression, and that all these ingredients were wanting in this case. I am not willing to concede that, in an action of this kind, the jury might not properly look at all the circumstances, and apportion their damages to the actual wrong done to the ¡plaintiff’s feelings and paternal affection and rights without any positive proof of malice or oppression. But these were not wanting. There was some discrepancy in the testimony; but the decided preponderance was that the children were living comfortably and happily with their father. The mother had deserted him, without assigning any reason, leaving her three children to his care, one of them then an infant only a year old. She was not denied access to them, and did not appear to have asked permission to remove them. They were not only illegally seized in a violent and alarming manner, and carried out of the reach of the laws of this state, but this was done at a time and under circumstances peculiarly calculated to harass and afflict the plaintiffj so that the jury were fully warranted in considering the act as wanton and oppressive, if it was not positively malicious. To have permitted him thus to have lost the services of his children for many years, if not during their minority, and to be harassed and wounded in his tenderest feelings, and to give him for such wrongs but nominal damages, would have been a mockery of justice. Admitting that the true rule would be to discard punitive damages, allowing only such as would be compensation for the actual injury, the extent of the injury depended very much upon the man *99 ner it was inflicted. The attendant circumstances and natural results, including the facts which occur and grow out of ¿he injury up to the day, of the verdict, affect the damages, and are admissible in evidence; and where an evil intent has manifested itself in acts and circumstances accompanying the principal transaction they constitute parts of the injury. 2 Greenl. Ho., §§ 268, 272.

Much stress was laid, by the counsel for the defendant, on the fact that he acted in aid of and in conjunction with his sister, the mother of the children. This circumstance was submilted to the jury, as entitled to be considered in mitigation of the damages. Further than this it could not go. The right of the father was clearly paramount to that of the mother; and there was no room to doubt that the defendant purposely aided in taking the children against the father’s consent. Although in eases where a child is before the court by virtue of a habeas corpus they will exercise a discretion, and permit the child, if of tender years, to remain under the care of the mother, yet if it is actually in the custody of the father, so absolute is his right considered, that they will not interfere to remove it, and it is strongly doubted whether they have the power to do it. State v. Stigall, 2 Zab. 286; Hackwell's case, 22 E. L. & E. R. 395.

As to the refusal to admit evidence showing that the children had been well provided for and educated by their mother in New York, I think it was right. No damages were claimed for any injury done to the children after their removal. The evidence was not offered in mitigation of the aggravating circumstances attending the taking of them away, and if it had been, had no tendency to do so.

I am therefore of opinion that the Circuit Court should be advised to refuse a new trial.

Cited in Baird v. Baird & Torrey, 6 C. E. Gr. 394.