87 N.Y.S. 625 | N.Y. Sup. Ct. | 1904
The plaintiff alleges that Harriet Larocque was his daughter; that in January, 1902, the defendant wrongfully seduced and carnally knew her; that she was then aged nineteen years, was previously chaste and of good reputation; that said seduction- was accomplished under a promise of marriage, which the defendant did not intend to keep, but the same was made for the purpose of subjecting her to his lusts and debauching her; that by reason of such intercourse and cohabitation she became pregnant about the month of April, 1902; that at that time the defendant wrongfully “ caused her to submit to a criminal operation, and aided and assisted in procuring an abortion to be produced on her,” from the effects of which she was rendered dangerously ill and continued sick down to the twenty-fifth day of April thereafter, when “ from the effects of said criminal operation and abortion she died;” that from the time of said operation down to her death the said Harriet, by reason thereof, suffered great pain of body and agony of mind, to her loss and damage.
Then follows a statement that she left next of kin who suffered damage by reason of the death in the sum of $20,000; that she died intestate; that letters of administration were duly issued by the surrogate of the county of Lewis, to the plaintiff, who has qualified and is acting as such, and judgment is demanded for $20,000.
To this complaint the defendant demurs upon the ground that it does not state facts sufficient to constitute a cause of action.
The complaint in alleging the promise of marriage, a seduction thereunder and a subsequent breach of the promise, states a cause of action which might have been prosecuted by her had she lived — her cause of action being for the breach, with the seduction a-s an incident, which might be shown in aggravation of damages; but this is not an action
The portion of the complaint, therefore, which remains to be considered is that wherein it is charged that the defendant procured the deceased to “ submit to a criminal -operation, * * * from the effects of” which she subsequently died.
There was no right of action at common law for causing the death of another. Green v. Hudson River R. R. Co., 2 Abb. Ct. App. Dec. 277; Whitford v. Panama R. R. Co., 23 N. Y. 465; Lucas v. N. Y. C. R. R. Co., 21 Barb. 245. The only authority in this State for its maintenance is in the statute:
“ The executor or administrator of a decedent, who has ■left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was ■caused, against a natural person who, or a. corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued;” Code Civ. Pro., .§ 1902.
Eliminating from the complaint the allegation as to the marriage promise, does it state a “ wrongful act, neglect or •default ” of the defendant, causing the death, for which the ■deceased might have maintained an action if living?
She could not have maintained the action as for a seduction. That right belongs to the person — ordinarily the parent, or one standing in loco parentis — who bore to her the relation of master and she to him that of servant. Ad-/ dison on Torts (Banks’ ed.), 1094; White v. Nellis, 31 N. Y. 405; Hamilton v. Lomax, 26 Barb. 615; 25 Am. & Eng. Encyc. of Law (2d ed.), 197; Lawyer v. Fritcher, 130 N. Y. 239, and cases cited; Disler v. McCauley, 66 App. Div. 42. Besides the seduction was not the proximate cause -of death; death resulted from said “ criminal operation.”
“ Since the business of the courts is to enforce obedience to the law, they cannot lawfully assist a suitor in any effort to break it.” Bishop Non-Cont. Law, § 54.
“ In just legal principle the true view is believed to be, that where one is seeking the help of the court in doing a wrongful thing, or compensation for having done it, or redress for another’s having participated with him in it, or where in any other manner compliance with his prayer would involve an affirmance of his wrong as though it were a fight, his suit will be rejected, Eor should the court grant what he
“A party cannot be heard to allege his own unlawful act, and if such act be one of a series of facts necessary to support the plaintiff’s claim, then that claim must fail.. The party who seeks redress in a court of justice must come with clean hands; an action which requires, for its support the aid of an illegal act cannot be maintained.” Gregg v. Wyman, 4 Cush. 322.
It is a maxim of the law that: “ That to which a person assents is not esteemed in law an injury.” Broom Leg. Max., *201. To the same effect is Addison Torts (Banks ed.), 1093; Bartley v. Richtmyer, 4 N. Y. 38, 43; Hilton v. Fonda, 86 id. 339, 352; Travis v. Barger, 24 Barb. 614.
The conclusion results that the plaintiff, as administrator, has no cause of action for the matters set out in the complaint.
Whether in his individual capacity as father, i. e., master, he has a right of action for loss of services, with punitive damages (Lawyer v. Fritcher, 130 N. Y. 239), is not now before the court for decision.
The demurrer must he sustained, with costs.
Demurrer sustained, with costs.