Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
The question before us is: Can a father maintain an action for the loss of services of his employed adult daughter, and for punitive damages, by reason of her alleged seduction under a promise of marriage, in view of the provisions of N.J.S. 2 A:23-1 et seq. , commonly known as the "Heart Balm" Act?
The complaint alleges that plaintiff is the father of Stephanie Magierowski, unmarried and of good repute for chastity, who lived with him and had been employed at a local plant for some 2 1/2 years last past. He charged that shortly after Stephanie became 21, defendant, of age and single, "did, under the promise of marriage," seduce her,
and as a result she became pregnant and "was unable to perform her usual tasks and duties, employment, and unable to earn monies as heretofore." The first count sought $25,000 damages for loss of the daughter's services and earnings. By way of second count plaintiff asked $25,000 punitive damages for loss of services, medical and hospital expenses, and for shame, humiliation and nervous shock.
The answer set up by way of separate defenses that N.J.S. 2 A:23-1 et seq. was a bar to the action, that plaintiff could not sue for loss of services where the daughter had reached her majority, and further, that she had been emancipated for some period of time. Defendant then moved for an order dismissing the complaint and for summary judgment in his favor, urging the same grounds in support of the motion. The court entered such an order which recited the bar of the cited statute.
Plaintiff argues three points on his appeal: (1) apart from the provisions of N.J.S. 2 A:23-1 et seq. , he may as father maintain an action for the loss of services of his daughter, though over the age of 21, resulting from her seduction by defendant; (2) N.J.S. 2 A:23-1 et seq. does not apply to plaintiff's action, and (3) if the statute be construed to bar the action, it is unconstitutional in that respect. We shall consider the arguments in that order.
Prior to the statute of 1935 (L. 1935, c. 279; R.S. 2:39 A -1 et seq. , now N.J.S. 2 A:23-1 et seq) a female could not bring an action for her own seduction, the reason generally assigned being that having consented to the illicit intercourse she was barred by the application of the maxim, " Volenti non fit injuria." Coil v. Wallace , 24 N.J.L. 291, 315, 318 (Sup. Ct. 1854); Van de Velde v. Colle , 8 N.J. Misc. 782, 784 (Cir Ct. 1930); see also 47 Am. Jur., Seduction , § 80, p. 669; 79 C.J.S., Seduction , § 4, p. 957; 22 Halsbury's Law of England (2 d ed. 1936), 247; Tiffany, Domestic Relations (3 d ed. 1921), 378; 4 Vernier, American
Family Laws (1936), § 252, p. 267; Thibault v. Lalumiere , 318 Mass. 72, 60 N.E. 2 d 349, 158 A.L.R. 613 (Sup. Jud. Ct. 1945). But it has been held that the presence of peculiar circumstances would support an action by the seduced woman, even in the absence of any modification of the common law: force, duress, or overpowering control or influence used to seduce, see Kirkpatrick v. Parker , 136 Fla. 689, 187 So. 620, 121 A.L.R. 1481 (Sup. Ct. 1939), or a confidential relationship between the parties, or the absence of a parent to bring the action, Welsund v. Schueller , 98 Minn. 475, 108 N.W. 483 (Sup. Ct. 1906). See Annotation , 121 A.L.R. 1487, 1488, 1490 (1939). However, even under the strict rule, if a woman sued for breach of promise to marry, the seduction could be shown in aggravation of the damages sustained. Coil v. Wallace , above, 24 N.J.L. , at page 306 ff.; 8 Am. Jur., Breach of Promise to Marry , § 28, p. 868.
Before 1935 there were 14 jurisdictions which by statute changed the common law rule and expressly conferred on the woman the right to sue her seducer for damages if she was then unmarried. 4 Vernier, op. cit. , § 252, p. 267. This right was recognized by judicial decision in three jurisdictions on the theory that feigned issues were abolished and the woman was the real party in interest under the statute requiring the real party in interest to bring the action. Watson v. Watson , 49 Mich. 540, 14 N.W. 489 (Sup. Ct. 1883), and Rabeke v. Baer , 115 Mich. 328, 73 N.W. 242 (Sup. Ct. 1897); Hyatt v. McCoy , 194 N.C. 25, 138 S.E. 405 (Sup. Ct. 1927); Johnson v. Harris , 187 Okl. 239, 102 P. 2 d 940 (Sup. Ct. 1940). See Note, 12 Minn. L. Rev. 190 (1928). Cf. R.R. 4:30-1. The right so given to the woman, by statute or judicial decision, has been criticized as socially unwise and oppressive. Feinsinger, "Legislative Attack on 'Heart Balm ,'" 33 Mich. L. Rev. 979, 986 (1935). New Jersey has recognized no such right.
An action ex delicto did exist at common law in favor of the parent against the seducer. The law of torts had, of course, long concerned itself not only with the protection of interests of personality and of property, but also with
so-called "relational" interests founded upon the relation existing between an individual and one or more other persons. Green, "Relational Interests ," 29 Ill. L. Rev. 460 (1935). Interference with the unimpaired continuance of such relation, particularly in the area of relations within the family, was redressed by a tort action. Green, op cit. , 464; Pound, "Individual Interests in the Domestic Relations ," 14 Mich. L. Rev. 177 (1916). The law developed as an offshoot of the action for enticing away a servant and depriving the master of his quasi -proprietary interest in his services. The wife and minor children were considered, in early common law, as superior servants of the husband and father; loss of their services became the gist of his action. 8 Holdsworth, History of English Law (2 d ed. 1937), 427 ff.; Wigmore, "Interference with Social Relations ," 21 Am. L. Rev. 764 (1887). In recent years, however, the emphasis has shifted from services toward recognition of the more intangible elements in the domestic relation, such as companionship and affection. Prosser, Law of Torts (2 d ed. 1955), § 103, p. 683.
Pound, in the cited article (page 181), observed that parents have three interests in their children that require protection against the world at large: (1) the society of their children -- their custody, control and upbringing; (2) the chastity of the female child, connected with the honor of the family and the self-respect and mental comfort of the parent; and (3) the claim to a child's services, a purely economic claim not differing from the interest in other economic advantageous relations. Cf. , 2 Wigmore, Select Cases on the Law of Torts (1912), " Summary of the Principles of Torts ," § 30, p. 841. The second of these three interests was secured by an action for loss of services based in theory upon the economic interest of the parent with, as Pound puts it, "an incidental reparation for the more significant interest of the parent in the domestic relation."
The law has not always been as ready to protect the relation of parent and child as it has that of husband and wife. It has, perhaps, been most sensitive and given the broadest protection to the parent's interests in permitting the bringing
of an action for illicit intercourse with his female child. In the measure that such action redresses injury to family honor, reputation and the feelings involved in the father-child relation, it is somewhat analogous to the husband's action for criminal conversation. Unwilling to permit the woman a right to sue for her own seduction, the common law did what it could to give an action at least to the parent. The result was the action for seduction, supported by nothing more than a fiction which proved to be as embarrassing as it was ingenious.
It is unnecessary to detail every step of the road by which the common law arrived at the final product -- an action in the parent for seduction of the daughter, based on loss of services due the parent as master from his daughter as servant. For various treatments of the historical background of the action, see Van Horn v. Freeman , 6 N.J.L. 322, 325-327, and note, 329-330 (Sup. Ct. 1796); the concurring opinion of Justice Pennington in Coon v. Moffitt , 3 N.J.L. 583, 590 [ Reprint 169, 176] ff. (Sup. Ct. 1809); Prosser, Law of Torts (2 d ed. 1955), § 103, p. 694. At first the action was trespass quare clausum fregit , the usual charge being breaking and entering the father's house and assaulting his daughter, getting her with child, per quod servitium amisit. Here the technical ground was the breaking and entering of the house; and seducing and getting the daughter with child, with loss of services resulting, was laid by way of aggravation, inter alia enormia. Later, the element of breaking and entering was omitted; the loss of services was the grievance complained of. The action developed as trespass or case for loss of services.
The father, therefore, was not permitted to bring an action simply for the debauching of his daughter, but if there were loss of services consequent thereon, the action would lie. Per quod servitium amisit was the gist of his case in all common law jurisdictions. The transparent nature of this legal fiction was recognized in our earliest cases. In Van Horn v Freeman (1796), above, 6 N.J.L. , at page 325, Chief Justice Kinsey was moved to observe
"* * * it is in general a mere fiction of the law, in order to give some kind of compensation for an injury of the most atrocious kind, which would otherwise be remediless. In these cases, generally speaking, little or no service is either performed by the daughter, or expected from her; and were it not for the highly respectable characters by whom this fiction has been supported and recognized, I should not hesitate to express my opinion, that it disgraces the jurisprudence of the country. Nevertheless, * * * I feel myself bound to adhere to a uniform course of precedents, and, in the present instance, I certainly shall not deviate from them. * * *"
Justice Pennington said in Coon v. Moffitt , above, 3 N.J.L. , at page 590 [ Reprint at pages 175-176], that "it is much to be lamented, that a specific action is not given [to the parent] for the injury, and that courts of law have been compelled to contrive a collateral, in lieu of a direct remedy." Chief Justice Beasley noted, in Ogborn v. Francis , 44 N.J.L. 441, 443 (Sup. Ct. 1882):
"* * * It is therefore the recognized doctrine that the parental relationship is no part of the basis of suits of this character; such suits, as their legal ground, rest exclusively on the relationship of master and servant. I shall not pause to inquire, as is done in some of the decisions in this country, whether this doctrine originated in a barbarous age, and is incompatible with the educated intelligence of our own times, for I cannot forget that the body of the common law had the same origin and much of it has been subject to the same criticisms, and that a court seeks to know what the law is and not what it should be. * * *"
The fiction did not go unnoticed in the jurisdiction of its origin, England. See Sergeant Manning's note to Grinnell v. Wells , 7 Man. & G. 1033, 1044, 135 Eng. Rep. 419, 424 (1844):
"It may be observed, however, that the quasi -fiction of servitium amisit affords protection to the rich man, whose daughter occasionally makes his tea, but leaves without redress the poor man, whose child, as here, is sent, unprotected, to earn her bread amongst strangers."
And see Pickle v. Page , 252 N.Y. 474, 169 N.E. 650, 72 A.L.R. 842 (Ct. App. 1930); Annotation, 72 A.L.R. 847 (1931).
The courts of England have persisted in holding fast to the rule that the loss of services is essential to the parent's cause of action, Grinnell v. Wells , above; Whitbourne v. Williams , 2 K.B. 722; and American courts, generally, have said that loss of services is the gist of the action, without which the action must fail. 47 Am. Jur., Seduction , § 73, p. 664; 79 C.J.S., Seduction , § 10, p. 964; Van Horn v. Freeman, Coon v. Moffitt, Ogborn v. Francis , above; Tittlebaum v. Boehmcke , 81 N.J.L. 697 (E. & A. 1911); Blackman v. Iles , 4 N.J. 82, 88 (1950). However, the tendency in this State, as elsewhere, has from the earliest times been to reduce this element of loss of services to a minimum. Van Horn v. Freeman , 6 N.J.L. , at page 329; Coon v. Moffitt , 3 N.J.L. , at page 586 [ Reprint at page 172]. Any services actually rendered the parent, even of the slightest, such as making a cup of tea (Briggs v. Evans , 27 N.C. 16, 20 (Sup. Ct. 1844), or milking the cows (Bennett v. Allcott , 2 Term Rep. 166, 168 (1787); accord, Coon v. Moffitt , above), suffices. If the seduced daughter was a minor and living in her father's home, it was presumed without more that she performed such services, Noice v. Brown , 39 N.J.L. 569, 572 (Sup. Ct. 1877); cf. Magee v. Holland , 27 N.J.L. 86 (Sup. Ct. 1858) (abduction of infants aged 3-6 years); and even where a minor daughter temporarily lived elsewhere, the father could recover if he still had the legal right to command her services at his pleasure -- i.e. , had not emancipated her from his control, or released his right to her services, or abandoned her -- Middleton v. Nichols , 62 N.J.L. 636, 637-638 (Sup. Ct. 1898); cf. Ogborn v. Francis , above. Thus, courts have embraced the idea of constructive service to support the father's action; the mere right to services was enough, though none were rendered in fact. 47 Am. Jur., Seduction , § 75, p. 666; 79 C.J.S., Seduction , § 10, p. 964 ff.
Not only have American courts been willing to support the fiction of loss of services by recognizing that the right to services without any being performed was sufficient, but the fact of services without the right to them has also been ample
to the purpose. This has been the approach where the daughter was of age at the time of her seduction. If she was in a position where the father could command her services, and she rendered them to him, no matter how slight, recovery would lie. 47 Am. Jur., Seduction , § 75, pp. 666-667, § 81, p. 671; 79 C.J.S., Seduction , § 10, p. 965; Sutton v. Huffman , 32 N.J.L. 58 (Sup. Ct. 1866); Noice v. Brown above, 39 N.J.L. , at page 573; and see opinion of Justice Rossell in Coon v. Moffitt , above, 3 N.J.L. , at page 588 [ Reprint at page 174].
Realistically appraising the lengths to which courts have had to go in order to keep alive and useful the fiction of loss of services, a few jurisdictions logically concluded that the fiction was obsolete and no longer necessary to an action for seduction in the parent. Simpson v. Grayson , 54 Ark. 404, 16 S.W. 4 (Sup. Ct. 1891); Anthony v. Norton , 60 Kan. 341, 56 P. 529, 44 L.R.A. 757 (Sup. Ct. 1899); Snider v. Newell , 132 N.C. 614, 44 S.E. 354 (Sup. Ct. 1903); Dwire v. Stearns , 44 N.D. 199, 172 N.W. 69 (Sup. Ct. 1919); cf. Pickle v. Page , 252 N.Y. 474, 169 N.E. 650, 72 A.L.R. 842 (Ct. App. 1930) (abduction of grandchild), and Annotation , 72 A.L.R. 847 (1931). About one-third of the states enacted statutes to that effect. 4 Vernier, American Family Laws (1936), § 265, p. 461.
Technical loss of services once having been established, the parent's action for seduction was recognized (sub silentio) for what it really was -- an action ex delicto for interference with the family relation. As was said in Briggs v. Evans , 27 N.C. 16, 20 (Sup. Ct. 1844), the plaintiff "comes into court as a master; he goes before the jury as a father." The father, suing as a master, has been permitted to recover not only the value of the services lost -- often so minor as to be minimal -- but damages for medical and other expenses for the care of the daughter, for loss of her society and comfort, for his wounded feelings, for the dishonor brought to ...