120 Mass. 487 | Mass. | 1876
Actual loss of service by the wrongful act of the defendant is the technical foundation of the plaintiff’s action. Such loss of service will be presumed in favor of the father who has not parted with his right, where the daughter is under age and resides with Mm ; Hewitt v. Prime, 21 Wend. 79 ; and, according to the more recent American cases, where he retains the legal right to claim her service, although she resides and is temporarily employed elsewhere. It results from the legal obligation imposed upon him to provide for her support and education, which gives him the right to the profits of her labor. Kennedy v. Shea, 110 Mass. 147, and cases cited. Furman v. Van Sise, 56 N. Y. 435, 444. Emery v. Gowen, 4 Greenl. 33. Clinton v. York, 26 Maine, 167. Griffiths v. Teetgen, 15 C. B. 344. See also note to Martin v. Payne, in Bigelow Lead. Cas. Torts, 286. The father’s inability or failure to support his children does not alone deprive him of this right. Benson v. Remington, 2 Mass. 113.
In the case at bar, the evidence fails to justify a finding by the jury that the father had permanently or temporarily parted with his right to his daughter’s services, or that he had waived
The fact that the plaintiff was also the legally appointed guardian carries with it no right to the service of the ward, and no obligation to support her, except to the extent of the property belonging to her which came to his hands. Gen. Sts. c. 109, § 19. Exceptions overruled.