Lawyer v. Fritcher

This action was brought by plaintiff against defendant to recover damages, as alleged in the complaint, for the abduction of plaintiff’s infant daughter from the service of the plaintiff, her father, and also for seduction while she was

On the sixteenth day of May following he again came to the plaintiff’s house and had an interview with him and plaintiff’s wife upon the subject of marrying Edith, plaintiff’s daughter. During the interview with the plaintiff upon the latter day upon the subject of the marriage of defendant to plaintiff’s daughter, there was a conversation between them in regard to his legal right to contract marriage, and whether the conditions of separation of defendant from his wife were such as to allow of a valid marriage between defendant and plaintiff’s daughter. The defendant represented that he had a legal right to marry, and the defendant drew a consent, or contract to carry out such design, and induced the plaintiff and his wife to sign it. The consent or contract was in these words:

“ To Some it May Concern: We the undersigned are the father and mother of the bearer Edith Lawyer, Whereas Edith and P. J. Fritcher of Sharon wish to be united we give our consent to their contracts.

“ Richmond ville, May 16, 1886.

“PETER LAWYER

“CATHERINE LAWYER.”

Said Catherine Lawyer was not able to write her name, and Edith was requested to sign her name for her and did so. After these representations were made and this instrument-signed, the defendant carried Edith to Portlandville, in Otsego county, a distance of about tliirty miles from her home and residence of .plaintiff; staid at a public house at that place,, and said to the lady who kept the house that he was married ; occupied the same bed with Edith on the night of the-seventeenth. The next day defendant carried Edith to Sharon, Schoharie county, where he resided, and stated to his housekeeper, who was a sister of Edith, that she was his

Edith, the plaintiff’s daughter, was about 17 years of age, generally lived in her father’s family, and performed service for him, though she did work out occasionally, but her father had received her wages.

Among the declarations made at the interview of the sixteenth between plaintiff and defendant, the plaintiff testifies that the defendant said: “ I am just as clear from my wife as though I never had married her.” The plaintiff also testified that he believed such statement to be true. This statement and belief preceded the signing of the paper above set forth.

On the seventeenth or eighteenth day of May, and after defendant had arrived at his home and made the statements above to Julia, she procured from a drug store in the vicinity of defendant’s residence some poison. Edith partook of that poison and died of it on the twentieth day of May.

The principal question involved in this case is whether the plaintiff proved a loss of service and damage in consequence thereof sufficient to maintain the action. The trial judge charged the jury that the plaintiff was not entitled to recover damages for any loss of service by reason of the taking of the poison and the death of Edith in consequence. Nevertheless, the jury, under the charge of the court, found a verdict in favor of the plaintiff of $800, besides costs.

The General Term was not unanimous in affirming the judgment on the verdict of the jury. One of the learned judges, as shown by his dissenting opinion, uses the following language, which indicates the view taken by him and the grounds for his dissent from the affirmance of the judgment: “ The defendant, a married man, over 60 years of age, took plaintiff’s daughter Edith about seventeen years old, from her

I should not feel justified in departing from my rule in this court not to write an opinion upon the affirmance of a judgment in a common and ordinary case, except to reconcile differences of opinions by the judges of the. court below and to remove any resort to strained or doubtful reasoning to sustain the judgment appealed from, by a brief presentation of a feature of the case that was not distinctly brought out in that court.

This action was brought to recover damages which the plaintiff alleged he has sustained by the unwarranted inters ference of the defendant with plaintiff’s right to service. It is as well settled that he who unlawfully interferes with another’s right of service, whether it be the service of a male or female, a minor or an adult, is liable for actual or compensatory damages in the same manner and upon the same grounds

The plaintiff alleges that he is the father of Edith Lawyer, that at the time of the acts of the defendant complained of by the plaintiff, she was seventeen years of age and was residing with the plaintiff, and that he was entitled to her services, and that without the consent of the plaintiff, the defendant on or about the 16th day of May, 1886, enticed and persuaded- the said Edith Lawyer to leave the residence and service of the plaintiff and to accompany him (the defendant) to Portlandville, in the county of Otsego, etc.

The plaintiff also alleged that on the 17th day of May, 1886, the defendant debauched the said Edith, etc.

The evidence in this case establishes beyond question that on and previous to the 16th- day of May, 1886, Edith was the servant of plaintiff both in law and fact. It follows from that relation that plaintiff was entitled to command and to have her services wholly and without interruption, save such time as was necessary for her rest, health and preservation, until the plaintiff should give a valid consent to dispense with the service or the law should terminate the relation.

The defendant came to plaintiff’s house, where she was in fact performing and was in law bound to perform services for the plaintiff, and took her from and deprived the plaintiff of such service.

If this was done, as plaintiff alleges, without his consent, the defendant is liable to make plaintiff compensation for the loss of service. If the plaintiff’s consent was obtained by defendant through fraud, it was void, for fraud vitiates all contracts and all consents. Consent or no consent was one of the issues to be tried by the jury, and the jury has found upon competent evidence for that purpose that any consent given by plaintiff was given through fraud and so was no consent. With this finding by the jury the court cannot interfere. Edith was taken away from the plaintiff by the defendant and remained with him at a hotel, and on the way to defendant’s home and at his home for the space of four days, and the plaintiff was in the

The gravamen of the action and of all actions of this nature is the loss of service, and lath the pleadings and the proofs in this case make out a cause of action in entire harmony with the fullest requirements of such actions and entirely dispense with any necessity or occasion to resort to fiction as is said to be done in some instances to maintain the recovery of damages in these cases.

In the aspect we have been considering this case, it presents an actual and measurable pecuniary damage to the plaintiff. The loss of service constitutes the cause of action and it can make no difference as to the right of action whether that has been accomplished by an unlawful persuasion of the servant to leave the master’s employment or through fraud upon the master or force upon the servant, or by both such fraud and force.

The loss of service is the cause of action and when that is established, a basis for damages to some extent exists, and whether that loss is caused or attended or followed by sexual intercourse, defilement or pregnacy, loss of health or disability to serve, or for the purpose or with the intention of obtaining those results through a formal but criminal marriage, has relation more especially to the damages the plaintiff may recover than to Ms cause of action.

It is true the complaint charged debauchment and ill health as a consequence, as well as the taking of the servant from the master. Whether the debauchment was proven or not, the taking away by the defendant was proven without any contradiction and this gave plaintiff a cause of action and a right to damages. In such cases the jury have the right to impose punitive damages in their discretion in addition to compensatory damages.

I think these views are abundantly supported by numerous decided cases, to a few of which I make reference and extracts. Judge Andrews in People v. DeLeon ( 109 N. Y. 229 ), says: “In Regina v. Hopkins (Car. & M. 254), the case of an

In Lipe v. Eisenlord ( 32 N. Y. 233 ), (which was an action by the father to recover damages for the seduction of his daughter who was 29 years of age but living in her father’s family) this language is used, “ and any illegal act by which the right of the father, such as it was, to her services was interfered with to his detriment, was a legal wrong for which the law affords redress.” •

On page 236 of the same case the court uses this language: “ Finally it is urged by defendant’s counsel that only compensatory damages should have been allowed. The judge refused so to direct the jury and I think he was right. The object of the action in theory is to recover compensation for the loss of the services of the person seduced. This is so far adhered to that there must be a loss of that kind, or the action- will fail; but when that point is established, the rule of damages is a departure from the system upon which the action is allowed. The loss of service is often merely nominal, though the damages which are recovered are very large. It is too late to complain of this as a departure from principle, for it has been the law of this state and of the Fuigh'sh courts for a great many years.”

The same court, further on in the opinion, uses this language : “ The true rule (this being an action brought by plaintiff for the seduction of his daughter) I think is that the plaintiff’s right to the services may be made out in either way, and that when established so that the action is technically maintainable, the court and jury are to consider whether the plaintiff, on the record, is so connected with the party seduced as to be capable of receiving injury through her dishonor. A mere master, having no capacity to be injured beyond the pecuniary worth of the services lost, should undoubtedly be

In Hewit v. Prime ( 21 Wend. 79 -81-82), Judge Nelson, in delivering the opinion of the court in an action like the one under consideration, uses this language: “ It is now fully settled, both in England and here (citing several authorities in both countries), that acts off service by the daughter are not necessary ; it is enough if the parent has a right to command them, to sustain the action. * * * The ground of the action has often been considered technical, and the loss of service spoken of as a fiction, even before the courts ventured to place the action upon the mere right to claim the services; they frequently .admitted the most trifling and valueless acts as sufficient.”

Further on in the opinion, the judge uses this language: “ The action, then, being fully sustained, in my judgment, by proof of the act of seduction in the particular case, all the complicated circumstances that followed come in by way of aggravating the damages.”

In White v. Nellis ( 31 N. Y. 405 -407-409), (which was an action for debauching plaintiff’s minor daughter, and communicating to her a venereal disease by which she was made sick and unable to labor), the judge uses the following language : “ Whenever the wrongful act, by immediate and direct consequences, deprives the master of the service of his servant, or injuriously affects his legal right to such service, the law gives a remedy. It is not sufficient to sustain the action to prove the seduction merely. That is the wrongful act from which it must appear that a direct injury to the relative rights of the master has followed. The right of the master, as recognized by the law, is to have the services of the servant undisturbed by the wrongful act of another. * * * In cases of debauchery, the ordinary consequences that affect the master are the pregnancy and lying-in of the servant, during which she is unable to render him service. Hence the precedents of pleadings in this form of action have perhaps invariably alleged a loss of service through those consequences. But it

“ It is maintainable because a wrongful act has caused a direct injury to a lawful right. In such case, the right of the master to a remedy for an injury to his enjoyment of the services of his servant is equally clear, whether it be produed by beating and wounding the servant, or enticing him from employment, or forcibly abducting him, or wrongfully debauching and impregnating with child or with disease. FTor, in my judgment, does the remedy depend upon the sex of the servant. * * * We have now to determine the abstract right to maintain any action at all; and that is something quite independent of the question what damages may be recovered if the action be allowed.”

In the case of Ingerson v. Miller ( 47 Barb. 47 , 50), the General Term use this language: “ It is no objection to the maintenance of the action that no expense or actual loss of service is proved. It is sufficient that the father was at the time entitled to the services of the daughter, and might have required them had he chosen to do so.” “ The master has a property in the labor of his servant, and any wrongful act creating or producing a disability in the servant to perform what the master has a right to require, operates as a disturbance or infringement of such right to which the law will attach at least nominal damages as a result of the injury.” “ But proof of the slightest loss of service or the most trifling injury, if the direct result of the wrongful act, is sufficient to uphold the action.”

In Badgley v. Decker ( 44 Barb. 588 ), the opinion of the court at General Term holds this language: “ There was evidence in this case sufficient to go to the jury upon the ques

The judgment should be affirmed, with costs.

All concur, except Parker, J., not sitting.

Judgment affirmed.