Art. 15. New Trial for Insufficient or Excessive Damages.

Terwilliger, 42 Hun, 310; s. c., 116 N. Y. 530, opinion Folger, J. See "Joint Tort Feasors," chaps. IV, VI.

ARTICLE XV.

NEW TRIAL FOR INSUFFICIENT OR EXCESSIVE DAMAGES.

"that

"I should be sorry to say," observes Lord Mansfield, in cases of personal torts, no new trial should ever be granted for damages which manifestly show the jury to have been actuated by passion, partiality, or prejudice. But it is not to be done without very strong grounds, indeed, and such as carry internal evidence of intemperance in the minds of the jury." Addison on Torts, 1199.

A verdict on the question of damages is conclusive, unless there is reason to believe that the jury has been misled by passion or prejudice, or governed by some improper influence, or disregarded the law. Minick v. City of Troy, 19 Hun, 253; Kiff v. Youmans, 20 Hun, 123.

The discretion of the court in setting aside a verdict as excessive must be exercised within the latitude fixed by rules and precedents. Quirk v. Siegel-Cooper Co., 26 Misc. Rep. 244, 56 N. Y. Supp. 49, affirmed in 43 App. Div. 464, 60 N. Y. Supp. 228. It is said in McDonald v. Walter, 40 N. Y. 551, "A verdict for a grossly inadequate amount stands upon no higher ground in legal principle, nor in the rules of law or justice, than a verdict for an excessive or extravagant amount. It is doubtless true that instances of the former occur less frequently, because it is less frequently possible to make it clearly appear that the jury have grossly erred. But when the case does plainly show such a result, justice as plainly forbids that the plaintiff should be denied what is his due, as that the defendant should pay what he ought not to be charged."

This case, with others, is cited and followed in Morrissey v. Westchester Electric R. Co., 30 App. Div. 424, 51 N. Y. Supp. 945. In Crane v. Bennett, 77 App. Div. 102, 79 N. Y. Supp. 66, a verdict of $40,000 was held to be excessive and reduced by the Appellate Division to $25,000.

In Leavitt on Negligence, at p. 769, will be found memorandum of authorities as to verdicts claimed to be insufficient or excessive and set aside or upheld.

SUBDIVISION 1. Early rule- Predicated on loss of services. 287 2. Ancient doctrine criticised - Modern rule. 288

SUBDIVISION 1.

Early Rule-Predicated on Loss of Services.

An action lies by a parent for the abducting, enticement, or wrongful harboring of a child, as well as for its seduction. on Torts, 272.

Hale

Bigelow on Torts (7th ed.), § 256, states: "It is doubtful whether any action lies by a parent for the mere enticing away of his minor daughter (or son), or for harboring the child after notice that the harboring is without the parent's consent." Citing Taylor v. Neri, 1 Esp. 386.

In Magee v. Holland, 3 Dutch. (N. J.) 86, decided in 1858, it was held: "The law seems to be now settled that the father cannot recover damages for the abduction of his children; the uniform language of the cases being, that he can only sustain an action on the case where there has been actually or constructively a loss of service.

[287]

Art. 1. Elements of the Wrong.

“Injuries that may be offered to a person considered in the relation of a parent were likewise of two kinds: 1. Abduction, or taking his children away; and 2. Marrying his son and heir without the father's consent." 3 Bl. Comm. 140.

"It has been disputed, but the better opinion is, that the father has an interest in his legitimate child, sufficient to enable him to support an action in that character for taking the child away, he being entitled to the custody of it." 3 Bl. Comm. 140, note. Citing Cro. Eliz. 770; 23 Vin. 451; 2 P. Wms. 116; 3 Co. 38; 5 East, 221.

But, adds the note: "No modern instance, however, of such action can be adduced; and it is now usual for the father to bring his action for any injury done to his child, as for debauching her, or beating him or her, in the character of master."

"As to the other, of abduction, or taking away the children from the father, that is also a matter of doubt, whether it be a civil injury or no." 3 Bl. Comm. 140.

The rights of parents are in substance thus stated in Bishop on Non-Contract Law, §§ 373, 374: "A minor child is ordinarily in legal contemplation his father's servant, but he is not necessarily such. The law invests the father with a right to the services of his minor children, male and female, while he supports them. Therefore, one who entices such a child away liable to him in damages." Citing Butterfield v. Ashley, 2 Gray, § 374.

SUBDIVISION 2.

Ancient Doctrine Criticised - Modern Rule.

*

*
*

is

The evils resulting from founding an action upon a fictitious loss of services are made clear by the action for abduction. The real injury is to the parent's right of custody, society, and affection of the child; and to the normal parental sense there must always appear to be a grotesque, not to say inhuman quibble, in basing the recovery upon right of services.

It should be noticed, moreover, that the reasons which support the fiction of service in an action for seduction of a daughter do not here obtain. It is probable that the courts have adhered to the necessity of showing services in seduction, because in such cases the parties are, to some degree, in pari delicto. This objection does not exist in an action of enticement of a young child, or in the case of forcible abduction of any minor.

Art. 1. Elements of the Wrong.

As might be expected, the tendency of modern decisions has been to get rid of the fiction in this action.

Of the foundation of the action the court, in Kirkpatrick v. Lockhart, 2 Brev. (S. C.) 276, says: "In truth and justice it (the fictitious loss of service) forms no essential ingredient in the cause of action and is unworthy of the notice of an enlightened and feeling judicatory. We are, therefore, of opinion there is no necessity to resort to this absurd fiction to support an action so well founded in justice, reason, and policy. The true ground of action cannot be the loss of service, for a child may be of an age so tender or of a constitution so delicate as to be incapable of rendering any service. The true ground of action is the outrage and deprivation; the injury the father sustains in the loss of his child; the insult offered to his feelings; the heart-rending agony he must suffer in the destruction of his dearest hopes, and the irreparable loss of that comfort and society which may be the only solace of his declining age."

"A father has a right of action against every person who knowingly and wittingly interrupts the relation subsisting between himself and his child, by enticing or abducting such child away from him, or by harboring the child after he has left the father's house. The action lies also on behalf of the mother after the father's death or on behalf of one standing in loco parentis. The gist of the action for the abduction of a child would seem to be not the loss of service, but the loss to the parent of the comfort and society of the child, though the authorities are not in harmony upon the question." 1 Am. & Eng. Encyc. of Law (2d ed.), 167, 168.

The injury which one may suffer in the relation of parent seems; at the common law, to be limited to an action for the recovery of damages for being deprived of the child's services. The action is, therefore, planted rather upon a loss in the character of the master of a servant than in that of the head of a family. This sometimes leads to results which are extraordinary, for it seems to follow, as a necessary consequence, that if the child, from want of maturity or other cause, is incapable of rendering service, the parent can suffer no pecuniary injury, and, therefore, can maintain no action when the child is abducted or injured. Such have been the decisions." Cooley on Torts (2d ed.), 268, citing Hall v. Hollander, 7 D. & Ry. 133; s. c., 4 B. & C. 660; Eager v.

Art. 2. Remedies.

Grimwood, 1 W., H. & G. 61; Grinnell v. Wells, 7 M. & G. 1033; 8 Scott N. R. 741. In the last case it was intimated that if the abduction was of a helpless child there can be no action, because the child is incapable of performing services. The doctrine is criticised by Cooley, who doubts its soundness, saying that the services of a child, no more than those of a wife, are to be estimated by their merely physical and gross standard; they do not consist in the hewing of wood and drawing of water merely, but they are such returns of affection as the child in his condition is capable of; and many a parent has been made to feel that these, in the case of afflicted and helpless children, are often beyond all estimate.

Criticising Hall v. Hollender, 4 B. & C. 460, Webb's Pollock on Torts, at p. 282, says: "But this case does not show that, if a jury chose to find that a very young child was capable of service, their verdict would be disturbed."

The criminal action for abduction is provided for by section 282 of the Penal Code.

As to facts necessary to be shown to prove the crime, see People v. Plath, 100 N. Y. 590.

SUBDIVISION 2.

The Civil Action.

SECTION 1. When the civil action lies

2. When the civil action does not lie...

PAGE.

290

292

§ 1. When the civil action lies.- Of the right to a civil action for abduction, the court, in Lawyer v. Fritcher, 130 N. Y. 239, says: "It is well settled that he who unlawfully interferes with