2 Wend. 459 | N.Y. Sup. Ct. | 1829
It is true, indeed, “ and pity ’tis, ’tis true,” that this action is founded technically upon the supposed loss of service alone, the father and daughter being considered as standing in the relation of master and servant; yet it is perfectly well known that the actual loss of service constitutes very little or no part of the real ground of the action. The largest verdicts are often, and, most generally, given in cases where the daughter rendered no real service to the parent. The action is supported, not so much to remunerate in damages for the loss of service and expenses incurred, as to punish the offender for his dishonorable and disgraceful conduct, by way of atonement for the
The father is not permitted to maintain this action, unless he can shew the relation of master and servant existing either actually or constructively. If the daughter is above twenty one years of age, the father cannot prosecute unless the daughter resides with him and performs some acts of service, and any acts, however slight, will answer the purpose ; but if the daughter is under 21, he may maintain the action, although she does not live with him, and is servant de facto to another, provided she is servant de jure to him -T and in ascertaining whether the daughter is the servant, I apprehend the same liberality is to be extended to the father whose daughter within the years of minority is debauched, as to him whose daughter is above that age. It is, indeed, a legal fiction to call the daughter a servant who renders no service in fact, except, perhaps, making tea, mending stockings, &c. and is not under the control of her father. And it is also something like fiction to give the appellation of servant to a daughter who has been permitted, during her minority, to place herself in the service of others, and receive the wages of her own earnings for her own use. It would comport much better- with common sense to say that a father, whose daughter has been seduced, shall maintain an action for the injury done to his wounded honor and his parental feelings; but such is not the law, and unless a party brings himself within the established principles in cases of this kind, he cannot maintain his action.
This case is, in many of its circumstances, like that of Martin v. Payne, (9 Johns. R. 387.) In both, the daughter when seduced was in the service of another person; in both, the daughter, but for the seduction, considered herself as emancipated from her father’s control. In Martin v. Payne, the daughter, after seduction, returned to her father, who paid the expenses resulting from her situation ; in this case, the daughter did not return, but a friend paid those expen- - ses, and claims the same from the father, who is liable to pay them.
But it is said the plaintiff never instituted this suit in fact. Whether he did or not seems to me not a matter of inquiry upon the trial. If he sanctions the suit, though commenced without his orders, he has a right to do so ; and if he should disapprove it, the proper course to put an end to it is by motion. The attorney is responsible for any improper use of the plaintiff’s name. The witness may not know whether the plaintiff has or has not directed or approved the suit.
I am of opinion, therefore, that the judge at the circuit was correct in refusing to nonsuit the plaintiff, but that the jury were misled by his charge. He correctly rejected evidence of a promise of marriage, (1 Johns. R. 299 ;) but he stated that there had been no seduction, no courtship which proved an intention of marriage. It appears from the testimony that the defendant had continued his attentions to the daughter, for several months before the seduction, which seems to me sufficient on that point; and in the view that I have taken of this subject, the judge also erred in saying that the plaintiff had no right to his daughter’s services.
There must therefore be a new trial, costs to abide the event.