Hewit v. Prime

21 Wend. 79

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The witness, (the physician,) I think, was not privileged. It is very doubtful whether the communication made to him by the defendant can be considered as consulting him professionally, within the meaning of the statute; and it is certain that the information given was not essential to enable him to prescribe for the patient, if the daughter of the plaintiff should be considered a patient in respect to the transaction. 2 R. S. 406, § 73.

The judge ruled in the course of the trial, that no actual loss of service, expense or damage, prior to the commencement of the suit need be shown ; that the proof of the seduction was sufficient under the circumstances, pregnancy having ensued, and the daughter being a minor and a part of her father’s family at the time. It is now fully settled both in England and here, Maunder v. Venn, 1 Mood. & Malk. 323, Peake’s N. P. 55, 233, 2 Stark. Ev. 721, 9 Johns. R. 387, 2 Wendell, 459, 7 Carr. & Payne, 528, that acts of service by the daughter are not necessary; it is enough if the parent has a right to command them, to sustain the action. If it were otherwise, says Littledale, J. in Maunder v. Venn, no action could be maintained for this injury in the higher ranks of life, where no actual services by the daughter are usual. After this, I do not perceive how we can consistently maintain that proof of actual loss of service is indispensable to uphold the action. If it may be sustained upon the mere right to claim them, or in the language of the cases, upon the supposed services, where none were ever rendered in fact, the ground of it, in the supposed case, precludes the possibility of any actual loss. Such is the spirit of the more recent cases, as will be seen by a reference to those above cited.

It was conceded by Hullock, serjeant, for the defendant in Revell v. Salterfit, 1 Holt, 450, that in most of these cases, the condition of service was regarded as a mere conveyance to the action. It was the form, he said, through which the injury was presented to the court; and having obtained its admission, upon legal principles, it brought along with it all the circumstances of the case.

The ground of the action has often been considered technical, and the loss of service spoken of as a fiction, even before the courts ventured to place the action upon the mere right to claim the services ; they frequently admitted the most trifling and valueless acts as sufficient. In the case of Clark v. Fitch, 2 Wendell, 459, there was no proof of actual loss. And Martin v. Payne, 9 Johns. R. 387, was decided upon the ground that none were necessary. The only actual liability of the father that appeared in the former case, were for the expenses of the lying in, which have never been regarded as the foundation of the suit; they are received in evidence only by way of enhancing the damages. It is apparent from a perusal of the modern cases, and elementary writers in England, upon this subject, that the old idea of loss of menial services, which lay at the foundation of the action, has gradually given way to more enlightened and refined views of the domestic relations ; these are, that the services of the child are not alone regarded as of value to the parent. As one of the fruits of more cultivated times, the value of the society and attentions of a virtuous and innocent daughter, is properly appreciated; and the loss sustained by the parent from the corruption of her mind and the defilement of her person, by the guilty seducer, is considered ground for damages, consistent even with the first principles of the action. The loss of these qualities, even in regard to menial services, would necessarily greatly diminish their value.

The action then, being fully sustained, in my judgment, by proof of the act of seduction in the particular case, all the complicated circumstances that followed come in by way of aggravating the damages. It is not necessary that these should all transpire before suit brought; if they are the natural consequences of the guilty act, they are but the incidents which attend, and give character to it.

Upon these views I concur with the learned judge who reviewed the case below, in denying a new trial."

New trial denied.