Stewart v. Strong

50 N.E. 95, 20 Ind. App. 44, 1898 Ind. App. LEXIS 512
CourtIndiana Court of Appeals
DecidedApril 22, 1898
DocketNo. 2,393
StatusPublished
Cited by2 cases

This text of 50 N.E. 95 (Stewart v. Strong) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stewart v. Strong, 50 N.E. 95, 20 Ind. App. 44, 1898 Ind. App. LEXIS 512 (Ind. Ct. App. 1898).

Opinion

Henley, J.

This action was begun by appellant against appellee to recover damages alleged to have been sustained by appellant, on account of the wrongful employment of appellant’s minor daughter by appellee, which employment was in opposition to the will of the parent.

It is alleged in the complaint that appellant is a widower and has a large family of children, the most of them being small and requiring care and attention; that appellant’s wife has been dead several years, and that since her said death, he, desiring to keep his said family together has relied upon his daughter, Lauretta Stewart, who was a girl of eighteen years, to manage his said home and to care for his said children and himself. That on the 17th day of November, 1893, the appellee with full knowledge of all the [45]*45facts, and intending and contriving to injure appellant, and to deprive him of the comfort, assistance, society, and services of his said minor child, and for the purpose of inducing the said Lauretta Stewart to work for ^him, the said appellee, did at said time wrongfully, and over the objection and protest of this appellant, and against his will and without his consent, persuade and entice the said minor daug’hter from appellant’s home where she was living and performing the services aforesaid, and took her to his, appellee’s home, and kept her for a period of five months, and did thereby deprive appellant of the society, comfort and assistance of said minor child during said period. The complaint then continues in these words: “And said plaintiff further says that said defendant, at the time of the grievances herein mentioned, had a certain son and servant nineteen years of age, who was at said time residing at the home of said defendant. And plaintiff further avers, that after the said defendant had so wrongfully taken said plaintiff’s said minor child away from his, said plaintiff’s home, and to the home of said defendant, she was then and there and thereby, carelessly and needlessly by said defendant exposed to the wicked influences and unscrupulous designs of said defendant’s said son, which facts said defendant well knew or might have known by the exercise of reasonable care and caution. And now said plaintiff says, that by reason of said wrongful persuasion and enticing away of said plaintiff’s said minor daughter from his said home, and by so carelessly and needlessly exposing her to the wicked influence and unscrupulous designs of said defendant’s said son, she was seduced by said defendant’s said son, who then and there, and at said defendant’s home, and in said house, debauched and carnally knew said plaintiff’s said minor daughter, whereby [46]*46said plaintiff’s said minor daughter became pregnant and sick with child, and so continued for a period of near nine months, and that she is now pregnant and sick with child and will continue to be sick from the result of said pregnancy for a long time, to wit, six months.”

It is further averred in said complaint that on the 17th day of April, 1894, the appellee brought appellant’s said child back to appellant’s home, from whence he had taken her, sick and pregnant with a bastard child; that by reason of all the facts as herein detailed, the appellant has been deprived of the services of said minor daughter, and she has been rendered sick and unable to attend to the necessary affairs of appellant, and that he will be deprived of her services for twelve months yet to come, and has already lost her said services for twelve months past and will be compelled to lay out and expend large sums of money in nursing and taking care of his said child, all on account of the wrongs of appellee as hereinbefore detailed. Judgment in the sum of $5,000.00 is demanded.

Appellee moved to strike out of the complaint all that part which is set out above in the language of the pleader. The lower court sustained the motion, to which ruling the appellant excepted, and has assigned such ruling as error to this court. A demurrer addressed to the complaint assigning as cause that the complaint did not state facts sufficient to constitute a cause of action was overruled. Appellee answered in two paragraphs. The first paragraph was a general denial, the second alleged facts sufficient to show that the appellant had prior to the time appellee employed his said minor child, fully emancipated her. There was a reply in denial, and upon the issue thus joined there was a trial by jury, and a special verdict re[47]*47turned by way of answer to interrogatories. The court sustained the motion of appellee for judgment upon the verdict, and overruled a similar motion made by appellant.

The principal question in the case arose upon the action of the lower court in sustaining appellee’s motion to strike out the part of the complaint heretofore set out in this opinion. It is a question not altogether free from doubt, and in this jurisdiction one upon which the authorities are not uniform.

Stated in the language of the learned counsel for appellant, “The theory of the complaint was that appellee, by wrongfully depriving the father of the services and society of his minor child against the will of the parent, was liable to respond in damages for all injury which might and did befall the daughter while in charge of the appellee, as well as for loss of services and expenses for sickness, medical aid, etc., etc.”

Would the debauching of appellant’s daughter by the son of appellee, as charged in the complaint, be such an injury to appellant as that damages would be recoverable by appellant from the appellee? It is not claimed by appellant in his complaint, that appellee conspired with his son to debauch appellant’s infant daughter, neither is it claimed that he connived at or in any way knew of the alleged fact that the girl was being ruined while in his employ, nor does appellant’s counsel contend as a matter of law that appellee was negligent in his duty toward appellant’s daughter, nor that the debauching of appellant’s daughter was the proximate result of the wrongful employment of her by appellee. But it is contended by counsel for appellant that the question of proximate cause can not arise in this case, and can in no way influence the proceedings, because the wrong consisted in enticing and inducing the minor child to leave the parent’s [48]*48roof against the will of the parent, and that the wrongdoer will be liable to the parent for any injury which may befall the child while under the control of the wrongdoer, and that the questions of negligence and proximate cause cannot arise.

The following Indiana cases are cited to sustain appellant’s contention: Ft. Wayne, etc., R. W. Co. v. Beyerle, 110 Ind. 100; Toledo, etc., R. R. Co. v. Trimble, 8 Ind. App. 333.

The facts in the case of the Ft. Wayne, etc., R. W. Co. v. Beyerle, supra, were these: The railway company enticed the minor son of the plaintiff to enter its service as a brakeman, and while engaged in that service, in the discharge of his duties, he was killed. The father brought suit, against the company for loss of the services of his minor son. Elliott, J., in pronouncing the opinion of the court, said: “The answers returned by the jury to the interrogatories very clearly show that the appellee’s son was guilty of contributory negligence, and that there was no negligence on the part of the appellant. There can, therefore, be no recovery upon the ground that the negligence of the appellant was the cause of George Beyerle’s death.

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Related

Evansville & Terre Haute Railway Co. v. Welch
58 N.E. 88 (Indiana Court of Appeals, 1900)
Gardner v. Caylor
56 N.E. 134 (Indiana Court of Appeals, 1900)

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Bluebook (online)
50 N.E. 95, 20 Ind. App. 44, 1898 Ind. App. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-strong-indctapp-1898.