44 Barb. 577 | N.Y. Sup. Ct. | 1865
There was evidence in this case sufficient to go to the jury upon the question of the relation of master and servant, existing between the plaintiff and her daughter. The slightest degree of service has been holden sufficient to maintain the action, and to allow a recovery for the heaviest damages. (Reeve’s Dom. Rel. 292. Knight v. Wilcox, 15 Bart. 279.) The daughter lived with her mother, and was in the habit of assisting to some extent in doing the work in the family. It is not disputed but that she' performed various acts of service for her mother, the plaintiff, and quite sufficient to meet the requirements of the rule in this action.
The rule is still adhered to, with us, that loss of service is the legal gravamen of the action, (Bartley v. Rightmyer,
All the modern cases hold that the legal gravamen of the action is not the real gravamen, as is apparent when we come to consider the rule of damages recognized in the action; and judges have not unfrequently spoken of the action as resting upon a fiction. In Clark v. Fitch, (2 Wend. 459,) there was no proof of actual loss, and Martin v. Payne, (9 John. 387,) was decided upon the ground that none was necessary; and in Hewit v. Prime, (21 Wend. 79,) it was held that an action may be sustained by a father for the seduction of his daughter, without proving any actual loss of services. It is enough that the daughter be a minor residing with her father, and that he has a right to claim her services. The court of appeals, in the case of Bartley v. Bichtmyer, (4 Comst. 38,) still adhere to the doctrine that the legal gravamen of the action is the loss of services, and that to sustain the action there must be some loss of service. There is no necessity, where the daughter is of full age, to show a contract of service, when she is living with her parents. The presumption is she is a servant if she lives with father or mother. (Reeve’s Dom. Bel.) The real gravamen of the action is not the loss of service. That is a very small item in the measure of damages. The loss of service in many cases could not be considered any thing, in reality, and often when the least service is performed the highest damages are given. The real gravamen of the action is the mortification and disgrace of the family, and the wounded feelings of the plaintiff.
The next and by far the more difficult question in this case is, can the plaintiff, the mother of this daughter, sue alone, and maintain this action while her husband is living, assuming that the relation of master and servant actually
The second section provides that a married woman may bargain, sell, assign or transfer her separate personal property, and carry on trade or business, and perform any labor or service on her sole and separate account, and that the earnings of any married'woman from her trade, business, labor or services shall be her sole and separate property, and may be used and invested by her in her own name.
Section 7 of chapter 172 of the Laws of 1862, p. 344, declares that any married woman may, while married, sue or be sued in all matters having relation to her sole and separate property, &c. in the same manner as if she were sole. (Laws of 1862, p. 344, § 7.)
The question is presented, then, does the loss of service of the daughter in this case have relation to the plaintiff's sole and separate property ?
The second section of the act of March' 20, 1860, above cited, declares that the earnings from carrying on this business
It should give her an action against one who beats and injures her servant, if there is a loss of services consequent thereon. It should give her an action against one Avho seduces and debauches her servant, if there is a loss of service shown. All of these acts directly affect her legitimate business, which the law allows her to carry on, and have a direct relation to the earnings and fruits of her business, and therefore indirectly, if not directly, have relation to her separate property.
It seems to me that as the statute grants to her the independent right to carry on any trade or business on her own account, the same as if she were a single woman, it carries with it by implication, as an incident—as necessary to the very protection of the right granted—these actions against wrongdoers who shall entice away, beat and injure or debauch her servant. And I am not able to perceive why it does not; and where the act directly tends to injuring her business, as the debauching of a servant does, I can not perceive why it has not some relation to her separate property, the earnings of that business.
It is the duty of courts to give this statute such a construction as will afford the protection of law to the rights clearly granted by the act.
It would be simply absurd to hold that under this statute
This is an action for the seduction of the plaintiff’s daughter. The plaintiff is, and was at the time of the seduction, a married woman, residing apart from her husband, who had deserted her, and keeping a boarding house on her own account. The daughter was at the time of the seduction, about twenty-five „years of age, and was carrying on the business of a dress maker, in a shop away from her. mother’s house, ostensibly on her own account, but living in the family of her mother, and performing occasional household services for her, though without any agreement between them, and her mother received the avails of her business.
At the trial the court was asked to nonsuit the plaintiff on two grounds: 1st. That the plaintiff, having a living husband, could not, in her own name, maintain the action. 2d. That the relation of master and servant did not exist between the plaintiff and her daughter, at the time of the seduction. The nonsuit was refused, and the jury gave a verdict in favor of the plaintiff, for $1000.
The judge submitted the question to the jury, whether the relation of master and servant existed, stating to them that “the daughter being upwards of twenty-one years of age, the bare fact that she lived with her mother, is not sufficient evidence that the relation of master and servant existed between them. There must be proof that she rendered some slight service in the family; but the slightest service that the daughter over twenty-one years of age might render is sufficient, prima facie, to constitute the relation of master and servant; and it is not necessary for the plaintiff to prove any particular agreement, to constitute it.” To this the defendant excepted.
It is well settled, that between parent and child, when the child is over twenty-one years of age, and lives with the
The coverture of the plaintiff was no obstacle to such relation between her and her daughter; especially under the existing law of husband and wife. By the statute of 1860, (Laws of 1860, ch. 90,) she had the right to keep a boarding house on her own account, as she was doing, and consequently to employ servants. It follows, that for any injury to her servant, per quod servitium amisit, a right of action accrued to her, equally as if she had been unmarried. This is a necessary incident to the right to carry on business on her own account, and to employ servants therein. And I am inclined to think that for such cause of action a suit may be maintained in her own name, without joining her husband with her.
By the code, § 114, when a married woman is a party, her husband must be joined with her, except in two cases. One is, “when the action concerns her separate property, she may sue aloneand by section 7 of the act of 1860, (amended by chapter 172 of act of 1862,) “any married woman may, while married, sue and be sued in all matters having relation to her property.” And by the same section, “any married woman may bring and maintain an action in her own
In regard to the question of damages, the court was right in holding that the plaintiff was not restricted to compensatory damages. In the recent case of Lipe v. Eisenlerd, (32 N. Y. Rep. 229,) the court of- appeals holds that the right of the jury to give exemplary damages, in such actions as this, is not confined to cases where the plaintiff makes title solely through the parental relation; but such damages may also be given when the reqxúred relation of master and
There can be no doubt that the plaintiff in this case was so connected with the party seduced, as to authorize the jury to consider, and give damages for, her injury received through her daughter’s dishonor.
I do not see any error calling for a new trial, and am of the opinion that it should be denied with costs, and judgment rendered upon the verdict.
Balcom, J. concurred.
blew trial denied.
Barker, Balcom and Mason, Justices.]