(dissenting):
The defendant, a married man over sixty years of age, took plaintiffs daughter Edith, about seventeen years old, from her father’s house on Monday, May seventeenth. He did this with the consent *592of the parents. But the verdict of the jury establishes that he obtained this consent by fraud. That night he stayed with her at a hotel and occupied the same bed with her, saying to the landlady that Edith was. his wife. The next day he arrived with her at his own house. They occupied the same bed and he made a similar statement, viz., that he had been manned to her the day before. When there Edith’s sister (who had been living at defendant’s) told Edith that defendant could not get married, he had not been divorced.
The next day, after dinner, Edith became sick. She had taken poison. The day following, Thursday, the twentieth, she died from the effects of the poison. Before death she told her sister that she took poison because she did not want to live and that she did not want to see anybody. There was evidence that Edith had recovered from her usual monthly courses a week before she went away with defendant, and that before her death her underclothes were spotted with blood, which a physician supposed to be the.menstrual flow. The important point in this case is whether on these facts the court could properly submit to the jury the question whether the plaintiff sustained damage, other than that of death, for loss of service by reason of the seduction.
It will be seen that there is no evidence of seduction before Monday night; no evidence of Edith’s condition from Monday night till Wednesday noon, when she took the poison, and, of course, no evidence of pregnancy. The court charged the jury that her death was not a direct result of the sexual intercourse. Hence the question must be whether the jury were justified in finding that between Monday night and Wednesday noon Edith’s condition was such, owing to the seduction, that she was unable to render the service which her father was entitled to demand from her.
In Hewitt v. Prime (21 Wend., 79) this court charged thg.t “no loss, expense or damage prior to the suit need be shown; it was enough to pi’ove the seduction.” This was held not to be error. And the court said that “ the loss sustained by the parent from the corruption of her (the daughter’s) niind and the defilement of her person by the guilty seducer is considered ground for damages consistent even with the first principles of the action.”- But such was not the charge of the court in the present case, since the court rested the right of recovery on actual damages. Therefore, we must consider whether *593there was such actual damage. If the court had charged that no damage need be shown, the defendant might have excepted and brought up the point for review. And we must notice that in the case just cited the seduction was, in July; the daughter became pregnant; the action was commenced in September and a child was born in April before the trial. So that there was evidence from which the jury could have found inability to work. And the trial court probably intended that no other proof was needed The cases of Clark v. Fitch (2 Wend., 459) and Martin v. Payne (9 Johns., 387), cited in the opinion, do not sustain the point that no proof of damage need be given. (See, especially, the remarks of Justice SpeNcee in the former case.)
In Ingerson v. Miller (47 Barb., 47) the daughter liaa oeen pregnant over three months and consulted a physician for relief. lie refused. She fainted and died. The defendant asked the court to-charge that there was no proof of loss of service. The trial court refused, and this was held correct. The court said, in substance, that if the daughter was pregnant she must have been disqualified to render such service as she would owe. But the doctrine was still asserted that mere seduction without pregnancy, consequent ill health; or injury to the servant would not give the right of action. It is so stated in Whitney v. Elmer (60 Barb., 269.) In the case of Badgley v. Decker (44 Barb., 578) the court say the rule is still adhered to with us that loss of service is the legal gravamen of the action. There the daughter became pregnant and then lived with plaintiff till the birth of the child. The doctrine is also stated in the same way in Bartley v. Richtmyer (4 N. Y., 38); Lipe v. Eisenlerd (32 id., 236); while the court say that damages are given “ to redress a moral outrage and punish libertinism,” they reaffirm the doctrine that there must be a loss of service or the action will fail.
So in the brief memorandum in Lawrence v. Spence (99 N. Y., 669) it is stated, in affirming the recovery, that the result of the seduction was a loss to the father of his daughter’s services. We find no later authority than these. It is true that it has been said that the service owing may be a fiction, as, for instance, in case of a wealthy father whose daughter renders no actual service. Courts have held that the relation of master and servant in such cases was *594enough, although no real service was rendered. While this may bo sufficient to show that service was owing, there must be proof that there has been a loss to the plaintiff.
Now, since the learned justice took from the jury every considera, tion of the death of Edith, as being too remote, we are limited, in considering the loss of service, to the time prior to her taking poison. Her sister was on the , stand and could have testified to Edith’s physical condition. But no such testimony was given. The sister herself also took poison about the same time and probably from the same package, but recovered from the effects. And there is no reason to suppose that her act was occasioned by any seduction or that she had been incapacitated from working. If it should be said that the taking of Edith from her home caused damage to the father, the answer is that this action is for the seduction. It is only for seduction that punitive damages may be given. Actual damages only could be recovered for the mere carrying away. The same rule seems to prevail in other States, as to the necessity of showing 'a loss of service. In Abrahams v. Kidney (104 Mass., 222), it was said that if the proximate effect of the seduction was mental distress, impairing health and ability to labor, this was sufficient; but if the loss of health was caused by mental suffering produced by shame resulting from exposure, it was not sufficient. The seduction was not the proximate cause. Again, the fact of service must be proved. (Sutton v. Huffman, 3 Vroom [32 N. J. L.], 58; Humble v. Shoemaker, 70 Iowa, 223.)
It would seem that by statute in Yirgina, Michigan and Kentucky it is not necesary to aver or prove loss of service. And the enactment of such statutes shows that without them it would be necessary to prove a loss of service. We find no casé in which not only the service but the loss was fictitious also. In every case cited there has been evidence from which might justly be inferred inability, partial at least, to render service. But in this case the jury must have inferred from the fact of suicide that, during the day and a half previous, Edith was distressed in mind, and that such distress was occasioned by the seduction, and then must have inferred that such distress rendered her incapable of work. Of all this we see no evidence.
We may test this question in another way. Suppose that in this *595action no exemplary or punitive damages could be granted. Could there possibly have been a recovery of any amount whatever for actual damages? "Would not a court have said unhesitatingly that on this evidence no verdict for any amount of actual damages could stand? But there must be actual before there can be punitive damages.
The defendant denies the seduction. But if the verdict of the jury is correct, he committed a grievous wrong, more inexcusable on account of his age, and his evident influence over the plaintiff and his family. The result has been very lamentable. "We have no sympathy for him if he is guilty. "We may even wish that the legislature would say that “a father whose daughter has been seduced shall maintain am action for the injury done to his wounded honor and parental feelings.” But such is not the law. (Clark v. Fitch ut supra.)
It is not for us to legislate or to violate legal principles under the stress of a case like the present. We must adhere to rules, whatever our sympathies may be. Nothing leads to more incorrect decisions than an effort to do what is thought to be just in a special case by a little evasion of well settled law. Hence comes the worst of evils, uncertainty in the law and judgment “ according to the size of -the chancellor’s foot.”
For these reasons I think the judgment should be reversed and a new trial granted, costs to abide the event.
Judgment and order affirmed, with costs,