73 A. 301 | N.H. | 1909
The question here presented is whether the plaintiff, whose son was instantly killed through the negligence of the defendants, can maintain an action for damages for the loss of the son's services from the time of his death until he would have attained his majority. It is conceded that there is no statute giving a right of action in such case. The plaintiff's contention is that recent decisions in this state recognize the existence of a right of action for damages for loss of service between death and majority; that at common law a father has an absolute legal right to the services and earnings of his minor son; that by reason of the defendants' negligence the plaintiff has been deprived of this right; that as the party possessing the right and the one who has infringed upon it are both in existence, the question of the survival of actions, urged as a reason for the conclusion reached in Wyatt v. Williams,
The recent cases upon which the plaintiff relies are Carney v. *282
Railway,
In Wyatt v. Williams, supra, the court said: "At common law, for the killing of a human being, no civil action could be maintained against the person who caused it, . . . by a person standing in the relation of . . . father or master to the person killed, and the law was the same, whether the act which caused the death was felonious or not." And after discussing the various reasons assigned for the holding, it says that the rule is founded upon public policy, and if the reasons assigned "are various and not altogether consistent, yet the rule has been too long established, and too generally recognized as a settled principle of the common law, to be now shaken by anything short of a legislative act." This case was decided in 1861, and from that day to this no action has been brought in which the parent has been allowed damages for loss of services after the child's death — a fact reasonably conclusive as to the law in this state and of the understanding of the profession upon the subject. State v. Railroad,
But there seem to be other substantial reasons why this action cannot be maintained. In Campbell v. Cooper,
In Jenness v. Emerson,
In Kelley v. Davis,
In Hammond v. Corbett,
In Aldrich v. Bennett,
From these decisions it appears that the parent's right to the services and earnings of his minor child are not absolute, but contingent upon his actually providing support for the child and of his retaining parental control over him; and that when he ceases to provide support, or voluntarily or by operation of law releases his parental authority, his right to the child's services and earnings ceases. Because of these reasons, the decision in Wyatt v. Williams, and the fact that no action of this nature has ever been maintained in this state, we are of opinion that the demurrer should be sustained.
Demurrer sustained.
All concurred.