This is an action for damages upon three causes of action. In the first cause of action, it is alleged that the defendants other than the defendant O’Dea kidnaped the plaintiff’s daughter, Marjory Rieman, who was then over sixteen years of age and under eighteen years of age. The second cause of action is, in legal effect, a charge of malicious prosecution on the part of the defendants other than O’Dea, in instituting and prosecuting a proceeding in the juvenile court at San Francisco. The third cause of action charges the institution and prosecution of a like suit at the city of Tacoma. In each of these suits it was charged that the plaintiff was an immoral woman and unfit to be entrusted with the custody of her daughter. The case was dismissed
We will first consider the appeal of the defendant Edward J. O’Dea. It is admitted that he took no part in the kidnaping and that he did not know the whereabouts of Marjory. The court instructed the jury, in effect, that therе was no liability upon him unless he participated by “some act or deed” in harboring and concealing her, and that mere knowledge on his part that someone had kidnaped her imposed no duty upon him to cоnduct an inquiry for the purpose of ascertaining who the guilty parties were. We think the law was correctly given. 38 Cyc. 485, 486; Adams v. Freeman,
It is argued, however, that he, as bishop of the diocese, owed a duty to the respondent which he fаiled to discharge, and that because of that failure she was deprived of the custody of her daughter for a period of about eight months. There is nothing in the record which reaches the stature of evidence which tends to show that he owed any duty to the mother. The daughter had been attending a Catholic academy in the city of Tacoma conducted by the Sisters of Visitation. His codefendants were, respectively, thе sisters in charge of the school, the rector of St. Leo’s Church in Tacoma, and Louis I. Lefebvre, a lawyer by profession. The respondent took her daughter from the school to Seattle on the 7th day of Februаry, 1911; and during the evening the daughter absented herself and returned to the rectory at Tacoma, and the rector took her to the home of the appellant
The record shows that the respondent was divorced from the father of Marjory; that he was living at the time of the trial; that, after her divorce, the respondent married Pontius Magnuson; that she was living with him at the time of the abduction and at the time of the trial and that Marjory had been a member of the family from the time of this marriage. The remaining apрellants, upon these facts insist: (a) that
The first contention is without merit. The respondent and the stepfather had had the custody and control of the child for several years and had supported her. While the record does not disclosе in whose custody she was placed at the time of the divorce, the inference is clear that the father had abandoned her.
In Anderson v. Aupperle,
The stepfather is a necessary party plaintiff in all the causes of action. Rem. & Bal. Code, §§ 181, 182 (P. C. 81 §§ 11, 13) ; Rem. & Bal. Code, § 5932 (P. C. 95 § 7); White v. McDowell,
• The right of action in cases like this is bottomed upon the loss of services, but the parents may also recover damages for mental distress and the loss of the companionship of the child. Washburn v. Abrams,
The stepfather was also a necessary party in the second and third causes of action, as they arise out of an injury tо the character of the wife. Rem. & Bal. Code, § 182 (P. C. 81 § 13). The facts of the case differentiate it from Clark v. Northern Pac. R. Co.,
The court instructed the jury to disregard the evidence touching the moral character of the respondent in rendering a verdict upon the first cause of aсtion. This is assigned as error. Her moral character was not in issue on the question of damages arising from the abduction of her minor child. Every parent, whatever his or her moral life may be, is entitled to the custody and control of the minor children unless and until that custody has been taken away by a court of competent jurisdiction, or unless the child is over sixteen years of age and voluntarily consents to a transfer of his or her custody tо another. Jones, Evidence (2d ed.), § 148; Stewart v. Watson,
The case of Dobson v. Cothran, 34 S. C. 518,
The charge is as to the first cause of action that all the appellants except Bishop 'O’Dea conspired together to kidnap the daughter and to conceal her whereabouts from the respondent. The evidence tends to show that her whereabouts was сoncealed from the respondent from the 7th day of February until the 11th day of September following and that she was kept in a school conducted under Catholic auspices at all times after the 17th day of February. During this time the respondent had no word from her daughter except a note written to her by the daughter on the 9th day of February, in which the daughter said:
“I am safe and well. There is no need to worry. I am in good hands and do not regrеt the step I have taken as I have no intention whatever of returning to Alaska with you. I am sorry it had to come to this but I could not do otherwise. [Signed] Marjory.”
The respondent testified that she expended about $3,-000 in finding her daughtеr and in regaining her custody. The appellants contend that the damages awarded on this cause of action, $19,033, are so grossly excessive as to conclusively establish the passion and prejudice of the jury. We readily agree with this view. Moreover, the passion and prejudice of the jury is emphasized by the fact that they returned a verdict against Bishop O’Dea in his private capacity in the face of the evidence and the instructions of the court. If there were no other error in the record, we would direct a new trial on this ground. The damages recoverable are compensatory only. There can be no rеcovery by way of punishment. If the evidence of the respondent and her daughter is true, the daughter was wrongfully enticed away from her mother. On the other hand, if the evidence of the appellants other than the Bishop is true, they but heeded the wishes of the daughter to protect her from what she conceived to be an immoral environment. The jury gave heed to the testimony
Other errors have been examined but require no special mention. For the reasons stated, the judgment is reversed, with directions to enter a judgment in favor of the appellant O’Dea, and to grant a new trial as to the other appellants.
Crow, C. J., Chadwick, Mount, and Parker, JJ., concur.