68 Ky. 567 | Ky. Ct. App. | 1869
delivered tub opinion op the court:
This was an action by the father, the appellee, for the loss of service consequent upon the seduction, debauching, and impregnation of his daughter, who still lived as a member in his family, under his control, and without any specified compensation for service, though she labored, and was over twenty-one years of age.
The suit was brought within one year from, the birth of the child, but not from the act of seduction. The jury, on issue and evidence, found for plaintiff five thousand dollars in damages; and the court refusing to disturb it, and having adjudged accordingly, the defendant seeks at our hands a reversal.
The first serious question presented is as to the right of the father to recover for the seduction as incident to the loss of service, especially when the suit is not brought within a year from the act of seduction.
It is provided in section 2, chapter 1, 1 Stanton’s Revised Statutes, 179, that “ an action for seduction may be maintained, without any allegation or proof of the loss of service of the female, by reason of the wrongful, act of the defendant.”
By section 3, article 3, chapter 63, 2 Stanton’s Revised Statutes, 128, it is provided, that “ an action for an injury to the person of the plaintiff, or his wife, child, ward, apprentice, or servant; * * seduction, criminal conversation, or breach of promise of marriage, * * * shall be commenced within one year next after the cause of action accrued.”
In Wheaton’s Selwyu, by Wharton (4th American, from the 7th London edition, 2 vol., p. 292), it is said : “ This form of action is frequently adopted by a parent for the purpose of obtaining a compensation in damages for debauching his daughter and getting her with child, and the expenses attending the lying-in. As to the nature of the action, it has been solemnly decided that this is an action of trespass, and not trespass on the case; and consequently, that a count for breaking and entering the plaintiff’s dwelling-house, and debauching his daughter, whereby he lost her services, may be joined with a count omittiug the trespass to the dwelling-house, and merely
Now, this loss of service and the expense are the very foundation for this action by the parent at common law; for the mere trespass of debauching and seducing a daughter, an action in her name, perhaps, could be maintained at law.
Our statute has not repealed the common law remedy in behalf of the parent, but has provided that an action for seduction may be brought and sustained, without averment or proof of loss of service or expense, which was wholly unknown to the common law, and, therefore, it might properly be designated a statutory remedy, and, as said by this couit in this case, in 1 Duvall, cumulative.
As no suit at common law could be brought by the parent until loss of service accrued, and the extent of this loss, and the incidental expense, could not be ascertained until the daughter’s recovery, it is most apparent that the perfect right of action did not accrue until the daughter’s recovery; for this might be longer or shorter, involving greater or lesser loss of timo and expense; hence the statute of limitations could not begin to run on the llrst attack of sickness, nor even the exact day of the child’s birth, but from the mother’s recovery.
As the action was brought within one year from the child’s birth, there can be no doubt of the legal right to maintain it. The question then occurs as to the measure of damages which may legally be recovered.
“ In Southernwood vs. Ramsden, Middx. Sittings, after H. T., 19th Feb., 1805, *' * Lord Ellenborough, Chief Justice, in explaining the nature.of this action, said that it was laid as a trespass, and was founded on the injury done the father by the loss of the service, of the child; this was necessary to let in the case; but when this was established, further damages might be conceded for the loss which the father sustained by being deprived of the society and comfort of his child, and the dishonor which he receives.”
“ Lord Eldon, Chief Justice, had expressed a similar opinion at Bristol Summer Assizes, 1800, in Chambers vs. Irwin." So it was held in Edmonson vs. Mathcll, 2 T. R., 4.
In Bartley vs. Rechtnyer (4 N. Y., 43), the Appellate Court of New York say: “It is obvious, from the nature of the case, that the master ought not, in point of principle, to recover anything more than a compensation for the pecuniary loss which he has sustained; and such was formerly the rule in this action, as it is still where the master sues for the battery of a servant. Blit it is now settled that a father may recover exemplary damages for the seduction of his daughter.”
Since the enactment of our statute, an action may be maintained for the seduction alone, before any loss of service occurs; and in such an action the statute of limitation would begin to run from the act of seduction; but for the loss of service and expense, the common law action does not accrue until the sickness deprives tlie father of the daughter’s services, and until expense, if any' is sued for, has been incurred; but wlien this action is brought, still the injury to the fatlier’s feelings and Ills and his family’s dishonor, enter into the consideration of the jury in making up their verdict.
There were some questions on the evidence, and some irregularities are insisted on; but we discover none of an injurious character.
The question propounded to the witness, Nancy Hancock, on the birth of her child, whether some one, present did not. lay it to another man, and her reply, though objected to by the plaintiff's counsel, which was sustained by the court, the witness still answered by saying she had not heard it. The other alleged errors need not be noticed.
Wherefore, the judgment is affirmed.