Art. 4. Damages.

distracted, and sought self-destruction, procured and took poison, and, after suffering great agony, died on or about the 20th of May, 1886, at the house of defendant, where defendant had taken her for purposes of prostitution, to plaintiff's great sorrow and disgrace, and, by reason of the above and foregoing, to his great injury, and to his damage of five thousand dollars.

WHEREFORE, Plaintiff demands judgment against the defendant for five thousand dollars, besides costs of this action. (Verification.)

ALBERT BAKER,

Plaintiff's Attorney.

Answer Alleging Consent and Connivance.

SUPREME COURT SCHOHARIE COUNTY.

PETER LAWYER

agst.

PETER G. FRITCHER.

Answer, 130 N. Y. 239.

The defendant for an answer to plaintiff's complaint herein: First. Denies each and every allegation in said complaint not hereinafter admitted or otherwise specially stated.

Second. The defendant admits that he is a married man; that his wife is living, and that he has no divorce from her.

Third. The defendant admits that the Edith Lawyer mentioned in the complaint was the reputed daughter of the plaintiff, and that she died on or about the 20th of May, 1886, at defendant's house.

Fourth. The defendant denies that plaintiff has suffered any damage from any act or procurement of his; and that whatever occurred between defendant and the said plaintiff's daughter Edith was with the full knowledge and consent of the plaintiff.

WHEREFORE, Defendant demands that plaintiff's complaint be dismissed, with costs.

(Verification.)

A. B. CooNS,

Defendant's Attorney.

ARTICLE IV.

DAMAGES.

As in regard to the fiction of services, so in regard to the right to punitive damages, there is a conflict between the old and the late authorities.

In Covert v. Grey, 34 How. Pr. 450, in an action on the case

Art. 4. Damages.

to recover damages for enticing plaintiff's son from his service, and inducing him to enlist in the army as a substitute for the defendant, it was held that punitive or exemplary damages could not be recovered; that the foundation of the action was loss of services, and that a recovery should be for actual damage sustained. Balcom, J., dissents.

It was further held that damages could only be recovered up to the time of the commencement of the action, or, at the most, to the time of the trial. Note that the rule here applied as to prospective damages is different from that existing in negligence cases, etc., by which the plaintiff's child is injured. In such cases the plaintiff is permitted to recover for prospective loss of services.

In Whitney v. Hitchcock, 4 Den. 461, where the action was for assault and battery on a child, the servant of the plaintiff, held, that the measure of damages was the actual loss, and that exemplary damages could not be given, even though the assault was of an indecent character.

It seems that, where the action is brought for willfully and maliciously enticing the plaintiff's daughter from the house of her parent, that the damage may be aggravated by the fact that the daughter, when in the house of defendant, was seduced by defendant's son, if the defendant connived thereat and aided in bringing about the seduction. Bradley v. Shafer, 64 Hun, 431, 19 N. Y. Supp. 604.

In Hopf v. United States Baking Co., 48 St. Rep. 729, 21 N. Y. Supp. 589, an action was brought for wrongfully harboring plaintiff's son and depriving him of his services. Upon trial it was shown that the plaintiff had consented to the employment, and demanded his son's wages. Held, after a reversal of judgment in plaintiff's favor, that the complaint could be amended upon terms to allow a recovery for the wages.

But the more recent case of Lawyer v. Fritcher, 130 N. Y. 239, settles the right to punitive damages. Though the case was aggravated by debauchment, the court held that the proving thereof was not necessary, and, the abduction being shown, there was a right to damages, and punitive damages, in the discretion of the jury.

Seduction is the act of a man enticing a woman to commit unlawful sexual intercourse with him by means of persuasion, solicitation, promises, bribes, or other means, without the employment of force. Black's Law Dict. 1074.

Seduction is thus defined in Ayer v. Colegrove, 81 Hun, 322: "Seduction is the act of the man in inducing the woman to permit unlawful sexual intercourse with him. Thus it may be accomplished by the use of seductive arts, such as flattery, solicitations, importunity, and promises."

In Hogan v. Creagan, 6 Robt. 138, the court attempts to distinguish between the wrong when accomplished by arts and wilesthat is to say, seduction; and when accomplished by force, that is to say, rape. But the technical meaning of the word "seduc

Art. 1. Definitions and Distinctions.

tion" includes, also, the commerce obtained by force, as was held in Damon v. Moore, 5 Lans. 454.

In section 3343 of the Code of Civil Procedure, subdivision 9, seduction is included among " personal injuries."

SUBDIVISION 2.

Seduction Distinguished from Analogous Wrongs.

In Lawyer v. Fritcher, 130 N. Y. 239, it was held that one who interferes with another's right to the services of a third person, whether male or female, minor or adult, is liable for actual or compensatory damages, the same as he would be liable for any unlawful interference with any other property right. This case is most valuable in pointing out the distinction between actions for interference with the parent's rights for services, independent of the question of seduction. Any interference with such rights, resulting in loss of services, is ground for action; seduction is not essential.

Though there is a radical difference between the action for seduction and breach of promise to marry, yet, in the latter action, seduction by means of promise to marry may be shown in aggravation of damages. Wells v. Padgett, 8 Barb. 323.

One of the distinctions between an action for breach of promise to marry and for seduction is pointed out in Hamilton v. Lomax, 26 Barb. 615, 6 Abb. Pr. 142, where it was stated that the infancy of the defendant is a defense in an action for breach of promise to marry. The court said: "So careful have the courts been to keep these causes of action separate, that in a case of seduction it was held erroneous to admit evidence of a promise of marriage in attempting to prove the seduction."

Another distinction is at once seen by the fact that the action for seduction cannot be brought by the person seduced, while, on the contrary, in an action for breach of promise to marry, the action is brought by the party to the contract.

Perhaps the chief distinguishing feature between criminal conversation and seduction is that the former is brought by the husband or wife to recover for the real injury; that is to say, for an injury to the marital rights; while seduction, on the contrary, is brought by the parent or guardian upon the fiction of injury to the right to service.

Art. 1. Definitions and Distinctions.

SUBDIVISION 3.

Historical: Theory of the Action.

At common law either trespass or case might be brought, and the plaintiff had his election. Case was in all actions the proper remedy. In England trespass vi et armis seems to have predominated. Yet the right to bring case, laying the injury with a per quod servitium amisit, has there not only been judicially recognized, but very able writers upon the English law treat this as the most proper form. Where the seduction is accompanied with actual violence upon the person of the daughter, or an illegal entry upon the plaintiff's close, or into his house, probably trespass would lie for the assault. Moran v. Dawes, 4 Cow. 413.

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Criticising the legal theory of the action, Savage, J., in Clark v. Fitch, 2 Wend. 459, says: "It is true indeed, and pity 'tis, 'tis true, that the action is founded technically upon the supposed loss of service alone, the father and daughter being considered as standing in the relation of master and servant; yet it is perfectly well known that the actual loss of services constitutes very little or no part of the real ground of the action. The largest verdicts are` often and most generally given in cases where the daughter rendered no real service to the parent. The action is supported, not so much to remunerate in damages for the loss of service and expenses incurred, as to punish the offender for his dishonorable and disgraceful conduct."

At common law it would seem that trespass on the case for seduction was founded upon the expenditure of money and loss of services consequent upon the seduction, and hence that the action could not be sustained unless pregnancy followed, or loss of health and consequential loss of services. Though trespass could be maintained at common law where the defendant illegally entered the plaintiff's house and debauched his daughter, the debauching being proved in aggravation of damages, even though not followed by pregnancy. The illegal entry was the gist of the action, and the loss of services merely consequential. In such cases, therefore, if the trespass is not proven the plaintiff could not recover. Sargent v. Blank, 5 Cow. 106, citing 3 Bl. 143; 2 Ld. Raym. 1032; Bennett v. Alcott, 2 T. R. 168.