This case was tried, as too many are, by counsel without briefs, or very meagre ones.
The plaintiff can have only one action against the defendant for enticing away his son from his service. If he had recovered in this action only for the loss of his son’s services to the time he commenced it, he could not maintain another action against the defendant for the loss of his son’s services since that time, for the reason that he could not have two actions for the same cause, i. e., for enticing away his son from his service by the defendant, in September, 1863. (See Fetter agt. Beal, 1 Lord Raym. R. 339; S. C. 1 Salk, 11 ; Sedgwick on Damages, 3d ed. 106; Secor agt. Sturgis, 16 N. Y. R. 554.)
Was the plaintiff entitled to recover damages for- the loss of his son’s services subsequent to the commencement of the action ? And what is the true rule of damages in the case f
The court of king’s bench held, in Hambleton agt. Veeve (2 Saund. R. 196; S. C. 2 K. B. 693; Ld. Raym. 200; 1 Lev. 299), that the plaintiff could only recover for the loss of the services of his apprentice, who had been enticed away by the defendant, to the time of the commencement of the action, and arrested the judgment, because it did not appear but the jury had given damages for the term the apprentice was bound to the plaintiff, which had not expired. That case was decided in the reign of Charles the Second.
All that was decided, in Dixon agt. Bell (1 Starkie, 287), respecting the damages the plaintiff could recover for the *460negligence of the defendant, by which the plaintiff’s son was wounded, was that the plaintiff could recover the surgeon’s bill for attending his son, “since the surgeon could compel • the payment of it as a legal debtbut that he could not recover the physician’s fees, “ since they had not been actually paid,- and he could not enforce the payment by action.”
The head note to Gunter agt. Astor and others (4 J. B. Moore’s R. 12), is: “ In an action on the case for enticing away the plaintiff’s servants, the measure of damages is not to be ascertained at the actual loss he sustained at the time, but for the injury done him by causing them to leave his employment.” Lord Chief Justice Dallas said - “I left it to the jury to give damages commensurate with the injury the plaintiff had sustained. The defendants clandestinely sent for his workmen, and, having caused them to be intoxicated, induced them to sign an agreement to leave him and come to them; by which the plaintiff was nearly, if not absolutely, ruined. I am by no means dissatisfied with the verdict the jury have found (which was £1600), as the conduct of the defendants, in point of fact, amounted to an absolute conspiracy, and I therefore think the court cannot now be called on to interfere by granting .a new trial.” Mr. Justice Park said: “The misconduct of the defendants in this case appears to have been most gross. It has been said the plaintiff' has only sustained damage for the value of the half day’s labor of his workmen, when they visited the defendants ) but it is not for the court to ascertain the precise damages he is entitled to, as that was most properly left by my lord chief justice to the jury.” Mr. Justice Richardson said: “This was an action for seducing and enticing away the plaintiff’s servants. The measure of damages he is enti- . tied to receive from the defendants is not necessarily to be confined to those servants he might have in his employ at the time they were so enticed, or for that part of the day on which they absented themselves from his service, but he is entitled to recover damages for the loss he sustained by their *461leaving him at that critical period. It appears, too, that the defendants combined to allure them from his service, and I do not think the court ought now to infer that two year’s profit is too much for the plaintiff to recover.” A new trial ' was refused in that case, and it was decided in 1819.
The case of Dubois agt. Allen (Anthon’s Nisi Prius R. 128) was tried before Mr. Justice Van Hess, at the Hew York circuit, in 1809, and it was an action on the case for enticing the plaintiff’s indented servant from his service. The defendant’s counsel cited Hambleton agt. Veere (supra), and contended that the correct rule of damages was the value of the servant’s services during the time she was in the employ of the defendant. But Van Hess, J., said: “The value of the service during the time the servant has been in the employ of the defendant is the general rule;, but the jury may, in certain aggravated cases, give the whole value of the servant by way of damages. The testimony, therefore, is admissible, to enable the jury to exercise that discretion. After ill blood has been created between a master and servant, by the inter-meddling of a third person, the servant ceases to be of any value to the master.”
Judge Cowen uses the following language, in that part of his Treatise where he speaks of damages in an action for a wrong, to wit.: “In an action of trespass, where the conduct of the defendant has been willful, malicious or cruel, exemplary damages, or smart money, is also frequently given, by way of punishment to the defendant, and a libera! indemnity to the plaintiff for his time and expense in seeking his remedy, as well as his damages, properly so called; and an exercise of this discretion is, many times, highly salutary and necessary. Accordingly, in an action for enticing away the plaintifi’s indented servant, the general.rule is, to give damages for the value of the service during the time of the servant’s employ with the defendant; but the jury may, in aggravated cases, give the whole value' of the servant in *462damages, for the whole time during which he is indented.” (2 Cow. Tr. 2d ed. 1007.)
In an action for an assault and battery, the plaintiff may recover for damages accruing after the commencement of the suit, provided they are. the direct and natural consequences of the battery. (Birchard agt. Booth, 4 Wis. R. 67 ; also see Fetter agt. Beal, supra.)
In an action of tort for wounding the plaintiff’s servant, whereby he was disabled from serving, the jury may give damages for the loss of the service, not only before action brought, .but afterwards, down to a time when, as it appears in evidence, the disability may be expected to cease. (Hodsoll agt. Stallebross et al. 11 Adolph. & Ellis, 301; S. C. 9 Car. & Payne; 63; Smith’s Master and Servant, 85.)
“ In estimating the pecuniary loss, where the plaintiff receives a personal injury by the negligence of the defendants, all the consequences of the injury, future as well'as past, are to be taken into consideration.” (Curtis agt. R. and S. R. R. Co. 11 N.Y. R. 534.)
The plaintiff may recover exemplary damages against a man who seduces his female servant and gets her with child. (See Ingersoll agt. Jones, 5 Barb. 661; Lipe agt. Eisenlerd, 32 N. Y. R. 229.) But in trespass for an assault and battery upon the child or servant of the plaintiff, the measure of damages is the actual loss which the plaintiff has sustained, and exemplary damages cannot be given, though the assault be of an indecent character upon a female, and under circumstances of great aggravation, for the reason that the child or servant can maintain an action for the assault and battery, “ in which the measure of redress depends very much upon the sound discretion of the jury.” (Whitney agt. Hitchcock, 4 Denio, 461; Cowen agt. Wright, 24 Wend. 429.)
The plaintiff’s son could not maintain an action against the defendant for being enticed away from his father’s service by the defendant; and I am unable to see why the plaintiff is not entitled, upon principle, to recover exemplary damages *463of the defendant for intentionally and wrongfully depriving him of the servicés of his son, by inducing him to go into the army as his substitute.
Whether I erred in charging the jury, if the plaintiff’s son was killed in battle, the plaintiff could not recover for the loss of his son’s services' subsequent to his death, is a question not properly before the court on this motion for a new trial. The plaintiff only could complain of that instruction. But upon this question see Ford agt. Munroe (20 Wend. 210), Green agt. The Hudson River Railroad Company (28 Barb. 9), Peck agt. The Mayor, &c., of New York (3 Comst. 489), and Gilligan agt. The New York and New Haven Railroed Company (1 E. D. Smith’s R. 453).
The plaintiff’s son enlisted in the army for three years, and there was no presumption at the time of the trial that the government would not want his services, if alive, during that period, which would end a little short of two years from the date of the trial. It seems to me the most natural presumption at that time was that the government would hold him for the residue of the term of three years for which he enlisted; and I am of the opinion it would have been improper for me to have allowed the jury to find the government ■ would sooner discharge him. I think it was just and reasonable to hold the defendant to the presumption that the plaintiff’s son would live and serve as his substitute in the army the whole time for which he placed him there.
The plaintiffs complaint contained sufficient allegations to entitle him to recover all the damages he had sustained at the time of the trial, and would thereafter sustaiti, by reason of the wrongful conduct of the defendant in enticing his son away from his service; and I am satisfied the plaintiff should not be restricted in his recovery to damages for the loss of the services of his son prior to the commencemet of the action, or to the time of the trial, and that the jury were properly instructed that they might, in their discretion, give exemplary damages, by way of punishment to the defendant, *464and to' compensate the plaintiff for time and trouble in prosecuting the action.
I think the case of Hambleton agt. Veere (supra) should not be followed, so far as it conflicts with these conclusions. It seems to me that, case is not sustainable upon principle; and it is too much in conflict with the spirit of decisions since made to control the rule of damages in this action.
It will hardly do to allow persons who wrongfully entice children away from the service of their parents, to get off, in all cases, by simply paying the actual pecuniary damages sustained by the parents for the loss of the services of their children. The pecuniary loss in cases is sometimes veiy small, when the parents’ grief is overwhelming. The best interests of society require that the jury should be permitted to punish persons, in proper cases, with exemplary damages, who wrongfully interfere with the rights of parents and masters, in respect to the services and care of their children and servants. Parents and masters should have a remedy commensurate with the wrong that is done them, and sufficient to prevent them from resorting to personal violence ■upon those who thus interfere with their rights, and to deter lawless and evil disposed persons from committing such wrongs.
For these reasons, I am of the opinion I committed no error on the trial of this action to the prejudice of the defendant, and that his motion for a new trial should be denied, with costs.*
Note.—Since the decision of this case, I have discovered that my views respecting the rule of damages in it are sustained by the supreme courts of Massachusetts and New Jersey. See Stowe agt. Hegwood (7 Allen, 118), Magee agt Holland (3 Dutcher, 86).