Jordan v. Hovey

72 Mo. 574 | Mo. | 1880

Hough, J.

The petition in this case states, in substance, that on the 15th day of July, 1875, and for six months- prior thereto, the plaintiff was a servant in the hotel of the defendant; that soon after she became the defendant’s servant, she and Charles Hovey, a minor son of the defendant, mutually promised each, other marriage; that during the existence of said contract of marriage, the defendant unlawfully, wrongfully and negligently advised. and encouraged the plaintiff to have sexual intercourse with said Chai’les Hovey, assuring her that it would be neither criminal nor improper; that relying upon the advice of her master, the defendant, and upon the promise of marriage made to her by said Charles Hovey, she permitted Charles Hovey to have sexual intercourse with her .twice, on or near the 4th day of July, 1875, and that on or about the 15th day of July, 1875, Charles Hovey violated and repudiated his promise of marriage, and refused to marry plaintiff. The petition concludes as follows: “That on account of the advice and negligent conduct of the said Eleazer Hovey, and the violation of the marriage contract by said Charles Hovey, this plaintiff was thrown out of employment for six months or more, and otherwise damaged in the sum of $5,000, for -which she prays judgment with costs of suit.” The plaintiff recovered judgment in the court below, and the defendant has appealed ; and we are required to determine whether the facts stated constitute a cause of action against the defendant.

It is settled that a woman cannot maintain an action for damages against her seducer. Roper v. Clay, 18 Mo. 384; Paul v. Frazier, 3 Mass. 71; Dicey on Parties, p. 349 ; Hilliard on Torts, 512. Such is the rule at common law, and in the absence of any legislative enactment giving a x'ight of action, the common law is declax’ed by statute to ■ be the rule of decision in this State. R. S., 3117. As the plaintiff could not maintain an action for her seduction against Charles Hovey, she cannot maintain an action against one who by immoi’al and impure advice aided and assisted ixx her seduction. The plaintiff, however, could have maintained an action against Charles Hovey for breach of promise for marxdage, provided he did not interpose a plea of infancy, and her. seduction might have been given in evidence ixx aggravation of damages. Roper v. Clay, 18 Mo. 383; Wilbur v. Johnson, 58 Mo. 600. But no x’eason whatever is alleged for holding the defendant responsible for the breach of promise of his son. It is not distinctly alleged that he knew of bis son’s promise of marriage, and it does not even iuferentially appear that he ever consented that his son should enter into the contract, or that he instigated him to a breach of it. The absence of these circumstances is not mentioned, because their presence would make the father liable, but to show how utterly groundless is the claim of the plaintiff against the defendant from that point of view.

Nor do we perceive how any right of action can accrue to the plaintiff by reason of the fact that the relation of master and servant existed between defendant and herself, at the time of his alleged misconduct. She was under no lawful constraint, as'servant, either to hear or heed his corrupt counsel, and while, in a moral point of view, the existence of that relation undoubtedly adds to the turpitude of his conduct, yet neither the common law nor any statute of this State will warrant ns in holding that such conduct on the part of master constitutes a violation of his legal obligations to the servant. We are all of opinion that the petition fails to state a cause of action against the defendant, and the judgment will be reversed.