SHEPHERD, J., dissenting.
It is alleged in the complaint that the plaintiff, being an inmate of the home of the defendant, and a dependent and employee of his mother, was seduced by the defendant under promise of marriage. It is alleged that the defendant and plaintiff, being engaged to be married to each other, the former repeatedly solicited sexual intercourse, saying that they would soon be married; that it would make no difference and would be no harm; which solicitations the plaintiff repulsed, but that after repeated solicitations her resistance was overcome, and "about the first of April, 1891, upon his urgently begging her to submit to him, saying that in a short time they would be man and wife, and they were already as good as married, she did submit to his embraces, fully trusting to his most solemn declaration that he would marry her in a month from that time, `before anybody would ever find out anything,' as defendant solemnly promised and declared; (216) that fully believing and trusting in the honor and faith of the defendant that he would marry her in a month, she allowed the intercourse between them to go on for three or four weeks, until it became evident to her that she was most probably with child, which fact she communicated to defendant, and begged him to save her from shame and ruin, as he had promised to do," whereupon defendant appointed 24 May, 1891, for the marriage, and procured the marriage license, but subsequently left the county and refused to marry her. It is further alleged that "by reason of the belief she had in his honor and good faith, and because of his contract and agreement to marry her at an early date, she was seduced, and as a consequence of such seduction, is now pregnant, and will in due time become the mother of a child of which the defendant is the father. And that by reason of his forsaking and abandoning her, and refusing to marry her as he contracted to do, and solemnly promised to do, she has been put to great distress and suffering — suffering mental anguish and bodily pain — and bringing sorrow and distress upon herself and her family, and in consequence of which she has been greatly damaged."
In the affidavit it is set forth "that the said Robert Sudderth did, under promise of marriage, seduce and lead her astray, in consequence of which she is about to become the mother of a child of which he is the father, and that he refuses to comply with his agreement and contract." The defendant moved before the clerk to set aside the order of arrest which had been issued in this case, and that he be discharged from custody on the ground:
1. That the facts stated in the complaint filed in this cause, and in the affidavit also filed herein, do not entitle the plaintiff to have the defendant arrested, and do not justify an order for the arrest (217) of this defendant.
2. That this being an action for damages for breach of contract of marriage, the order of arrest was improvidently granted and should be vacated.
3. That this is not one of those cases where an order for the arrest of the defendant could be granted.
The motion was refused by the clerk, and defendant appealed. On hearing the appeal, his Honor, Graves, J., affirmed the ruling of the clerk, and the defendant appealed to this Court.
The Code, sec. 291 (4), provides that defendant may be arrested in a civil action when he "has been guilty of a fraud in incurring the obligation for which the action is brought," or "when the action is brought to recover damages for fraud and deceit."
If the allegations are taken to be true (and they must be for the purposes of this motion), the defendant, by false and fraudulent representations as to the nature and consequences of the act he solicited, and by means of undue influence, taking advantage of the position of the plaintiff as his affianced wife, the trust and confidence thereby obtained, and her absence from her relatives and friends and natural protectors, and her isolation in his home and dependent position there, inflicted this gross wrong and outrage upon her, and thereafter abandoned her, leaving his home for a distant place and refusing to marry her. Taking the allegations to be true, it needs no argument or citation of opinions of other courts to show that the defendant has wronged the plaintiff, and that in accomplishing his purpose he has been guilty of "fraud and deceit." The word seduction ex vi termini, imports as much.
(218) Indeed, Laws 1885, ch. 248, makes it a felony. To procure gratification of his lust, the defendant has taken advantage of a dependent girl, violated the laws of hospitality, and by false representations
and undue influence inflicted a wrong upon the plaintiff. Surely this was a tort committed by "fraud and deceit," and an action lies to recover damages for the same. The injury to the woman's character is irreparable, and the procuring her to be with child might well, under such circumstances of fraud, be held an injury to her person. If so, the defendant's arrest would have been warranted also under the first sub-section of The Code, sec. 291, which authorizes arrest "where the action is for injury to person or character."
It would seem that it must be so, since it is held in Hoover v. Palmer,80 N.C. 313, that "the seduction of the daughter is an injury to the person of the father" within the meaning of this section. If that is so, it would be difficult to see why, when the action is brought by the woman herself, who alleges that she was seduced by the fraud, deceit and undue influence of the defendant, and made pregnant by him and her character ruined, there is not injury to her person as much so as there would have been to the person of her father if he had brought the action, as he might have done formerly, even when the daughter was of full age, if living with him.
This would seem beyond question. But in addition, under the letter and spirit of the present Constitution and system of procedure, this action could be brought by the woman herself, not merely for the "fraud and deceit," but for the wrong known as seduction, and the defendant arrested under sub-section 2, section 291, of The Code. 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, and this, though in fact no services were lost, and even when the woman was of full age and the father was not entitled to recover her (219) services of anyone else. It was well understood that this was a mere fiction, and that damages were awarded really for the wrong and injury done her. Indeed, damages were always allowed out of proportion to any possible estimate of the value of services, and even when no services were lost, as when there was no pregnancy. In fact, the highest damages were often awarded precisely in those cases where the woman, by her social position, was not expected to render any services of value to the father or master or other plaintiff. The Code, sec. 177, having provided that an action should be brought by the real party in interest, it should be beyond controversy that where an action is for seduction of a woman of full age, she, and not the father, is the proper one to bring the action. The Constitution, Art. IV, sec. 1, provides that "feigned issues" should be abolished. To give this constitutional provision its common sense construction, it would seem that the "feigned issue" in actions for seduction, of a loss of services and for damages
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SHEPHERD, J., dissenting.
It is alleged in the complaint that the plaintiff, being an inmate of the home of the defendant, and a dependent and employee of his mother, was seduced by the defendant under promise of marriage. It is alleged that the defendant and plaintiff, being engaged to be married to each other, the former repeatedly solicited sexual intercourse, saying that they would soon be married; that it would make no difference and would be no harm; which solicitations the plaintiff repulsed, but that after repeated solicitations her resistance was overcome, and "about the first of April, 1891, upon his urgently begging her to submit to him, saying that in a short time they would be man and wife, and they were already as good as married, she did submit to his embraces, fully trusting to his most solemn declaration that he would marry her in a month from that time, `before anybody would ever find out anything,' as defendant solemnly promised and declared; (216) that fully believing and trusting in the honor and faith of the defendant that he would marry her in a month, she allowed the intercourse between them to go on for three or four weeks, until it became evident to her that she was most probably with child, which fact she communicated to defendant, and begged him to save her from shame and ruin, as he had promised to do," whereupon defendant appointed 24 May, 1891, for the marriage, and procured the marriage license, but subsequently left the county and refused to marry her. It is further alleged that "by reason of the belief she had in his honor and good faith, and because of his contract and agreement to marry her at an early date, she was seduced, and as a consequence of such seduction, is now pregnant, and will in due time become the mother of a child of which the defendant is the father. And that by reason of his forsaking and abandoning her, and refusing to marry her as he contracted to do, and solemnly promised to do, she has been put to great distress and suffering — suffering mental anguish and bodily pain — and bringing sorrow and distress upon herself and her family, and in consequence of which she has been greatly damaged."
In the affidavit it is set forth "that the said Robert Sudderth did, under promise of marriage, seduce and lead her astray, in consequence of which she is about to become the mother of a child of which he is the father, and that he refuses to comply with his agreement and contract." The defendant moved before the clerk to set aside the order of arrest which had been issued in this case, and that he be discharged from custody on the ground:
1. That the facts stated in the complaint filed in this cause, and in the affidavit also filed herein, do not entitle the plaintiff to have the defendant arrested, and do not justify an order for the arrest (217) of this defendant.
2. That this being an action for damages for breach of contract of marriage, the order of arrest was improvidently granted and should be vacated.
3. That this is not one of those cases where an order for the arrest of the defendant could be granted.
The motion was refused by the clerk, and defendant appealed. On hearing the appeal, his Honor, Graves, J., affirmed the ruling of the clerk, and the defendant appealed to this Court.
The Code, sec. 291 (4), provides that defendant may be arrested in a civil action when he "has been guilty of a fraud in incurring the obligation for which the action is brought," or "when the action is brought to recover damages for fraud and deceit."
If the allegations are taken to be true (and they must be for the purposes of this motion), the defendant, by false and fraudulent representations as to the nature and consequences of the act he solicited, and by means of undue influence, taking advantage of the position of the plaintiff as his affianced wife, the trust and confidence thereby obtained, and her absence from her relatives and friends and natural protectors, and her isolation in his home and dependent position there, inflicted this gross wrong and outrage upon her, and thereafter abandoned her, leaving his home for a distant place and refusing to marry her. Taking the allegations to be true, it needs no argument or citation of opinions of other courts to show that the defendant has wronged the plaintiff, and that in accomplishing his purpose he has been guilty of "fraud and deceit." The word seduction ex vi termini, imports as much.
(218) Indeed, Laws 1885, ch. 248, makes it a felony. To procure gratification of his lust, the defendant has taken advantage of a dependent girl, violated the laws of hospitality, and by false representations
and undue influence inflicted a wrong upon the plaintiff. Surely this was a tort committed by "fraud and deceit," and an action lies to recover damages for the same. The injury to the woman's character is irreparable, and the procuring her to be with child might well, under such circumstances of fraud, be held an injury to her person. If so, the defendant's arrest would have been warranted also under the first sub-section of The Code, sec. 291, which authorizes arrest "where the action is for injury to person or character."
It would seem that it must be so, since it is held in Hoover v. Palmer,80 N.C. 313, that "the seduction of the daughter is an injury to the person of the father" within the meaning of this section. If that is so, it would be difficult to see why, when the action is brought by the woman herself, who alleges that she was seduced by the fraud, deceit and undue influence of the defendant, and made pregnant by him and her character ruined, there is not injury to her person as much so as there would have been to the person of her father if he had brought the action, as he might have done formerly, even when the daughter was of full age, if living with him.
This would seem beyond question. But in addition, under the letter and spirit of the present Constitution and system of procedure, this action could be brought by the woman herself, not merely for the "fraud and deceit," but for the wrong known as seduction, and the defendant arrested under sub-section 2, section 291, of The Code. 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, and this, though in fact no services were lost, and even when the woman was of full age and the father was not entitled to recover her (219) services of anyone else. It was well understood that this was a mere fiction, and that damages were awarded really for the wrong and injury done her. Indeed, damages were always allowed out of proportion to any possible estimate of the value of services, and even when no services were lost, as when there was no pregnancy. In fact, the highest damages were often awarded precisely in those cases where the woman, by her social position, was not expected to render any services of value to the father or master or other plaintiff. The Code, sec. 177, having provided that an action should be brought by the real party in interest, it should be beyond controversy that where an action is for seduction of a woman of full age, she, and not the father, is the proper one to bring the action. The Constitution, Art. IV, sec. 1, provides that "feigned issues" should be abolished. To give this constitutional provision its common sense construction, it would seem that the "feigned issue" in actions for seduction, of a loss of services and for damages
based thereon, was abolished, and the action should and does rest on the true issue of damages for the wrong done. For centuries damages have been awarded on that basis, and a more transparent fiction than that the action of seduction is for the value of services was not known to the law. As just said, in many cases no services were lost, or they were without value, and sometimes the nominal plaintiff had no right to claim them. While ordinarily, at common law, an action for seduction could not be brought by the woman, there are instances in which it has been allowed: Hutchinson v. Horn, 1 Ind. 363 (50 Am. Dec., 470); Smith v. Richards, 20 Conn. 232; and in many states the right of action has been expressly given to the woman by statute. 3 Laws, Rights Rem., sec. 1112. The right of action was denied to the woman at common law on the illogical ground (as it seemed to many eminent writers and judges) that the woman consented, but consent procured by fraud is not consent. Indeed, seduction is defined (220) to be "the wrong of inducing a female to consent to unlawful sexual intercourse by enticements and persuasions overcoming her reluctance and scruples." Abb. Law Dict. Even upon an indictment for the offense, the consent of the woman is no defense, because the fraud in procuring such consent is the gist of the crime, especially when obtained under promise of marriage. State v. Horton, 100 N.C. 443; 2 Whart. Cr. Law, 1758, 1759. Formerly the action of ejectment was nominally between tenants. Really it was for the title and possession of the land between those claiming to own it. By virtue of the Constitution abolishing "feigned issues," and The Code requirement that the action should be brought by the party in interest, the action is now so brought. So, when damages for the seduction of a woman of full age were sought to be recovered, the action was nominally by the father upon the fiction that he had lost his daughter's services, when in fact he was not entitled to them, and need not give in any evidence tending even to show that they were worth the amount given by the jury. The real party in interest was the female who had been seduced and deceived, and the real issues were as to whether she had been really seduced, and the amount of damages the jury should award as compensation for the injury done her and as punishment against the wrongdoer. In McClure v. Miller, 11 N.C. 133, Taylor, C. J., says of this action: "It is in substance for a wrong done to the person of the child, the loss of services is, in most cases, purely imaginary," and that "it is characterized by the sensible writer as one of the quaintest fictions in the world." Though, as the law then stood, the court properly held that the action, "being an action to recover vindictive damages abated on the death of the father." In Kinney v. Laughenour, 89 N.C. 365, Merrimon, J., says that the requirement
that the action must be brought by the father for loss of service is "a fiction of the law," and it is again styled by the Court "a fiction of the law" in Young v. Telegraph Co., 107 N.C. (221) 370 (384). Being "a fiction of the law it has been swept away equally with the fictitious proceedings in ejectment and all other fictions. The plaintiff being of age, is the real party in interest. She is the only one who now could maintain the action. The father certainly cannot. He (if indeed he be living) has not lost his daughter's services, for she was of age. The common law fiction was ingeniously imagined; it served its purpose; it had its day; but it has been swept away by the plain straight forward enactment of the Constitution, which, applying business methods to legal procedure, has "relegated to the rear" the antiquated fiction which had served only to make it ridiculous in the eyes of a practical age. The action of seduction remains unaltered in any essential, but it is an action to recover damages for the tort. This cause of action certainly has not been abolished, and where the woman is of age it must be brought by her as the "real party in interest." In Harkey v. Houston,65 N.C. 137, the Court held that these provisions of the Constitution and The Code had abolished the fictitious proceedings in ejectment with its leases and releases, casual ejectors, John Does and Richard Roes. What reason can be given that they did not abolish equally the fiction of "lost services" in an action for seduction which hence forward became, upon a "plain statement of the facts constituting a cause of action" in legal construction, an action for exemplary damages? It would be singular, to say the least, to retain the fiction that the action is based on the loss of services and not for the wrong itself, when the Legislature has made the conduct complained of a felony.
If weight is to be given to what may be deemed a legislative construction of the provisions in regard to arrest and bail, it may be noted that when the Court held in Moore v. Mullen, 77 N.C. 327 (where the plaintiff was the woman herself), that arrest and bail would not apply to an action for "breach of promise of marriage," the (222) next Legislature struck out those words in section 291 (2), and inserted "seduction," which seems a legislative construction that where a woman should sue for the seduction, instead of a mere breach of promise, an arrest would lie. In that case (Moore v. Mullen) the Court had intimated that if there was an allegation of "fraud in attempting to evade performance" of the contract, or that "the defendant, by means of the promise to marry, seduced the plaintiff and attempted to abandon her," the arrest might lie, and this has been held in Shehan's case, 25 Mich. 145, and Perry v. Orr, 35 N.J. L., 295.
It is true that the complaint may be construed as an action for breach
of promise to marry, with the aggravation of seduction. But it may also with equal justice be construed as an action for damages for "fraud and deceit," or for "injury to character and person," or also for "seduction." This being so, the plaintiff was entitled to any relief jutified [justified] by the complaint and proofs, whether demanded in the prayer for relief or not. Knight v. Houghtaling, 85 N.C. 17; Jones v. Mial,82 N.C. 252; Moore v. Cameron, 93 N.C. 51; Lumber Co. v. Wallace,93 N.C. 22; Moore v. Nowell, 94 N.C. 265, and numerous other cases. If the complaint may be construed either as an action in tort or in contract, the plaintiff may elect. Lewis v. R. R., 95 N.C. 179; Strokes v. Taylor,104 N.C. 394; Purcell v. R. R., 108 N.C. 422; Craker v. R. R.,36 Wis. 657, and cases there cited.
The facts stated in the affidavit present a case which authorized an order to issue for the arrest of the defendant, and in refusing to vacate the order, the court below committed no error.
AFFIRMED.
MacRAE, J. I concur in the conclusion arrived at.