Clark v. Fitch, 2 Wend. 459

Clark v. Fitch

2 Wend. 459 | N.Y. Sup. Ct. | 1829

By the Court, Savage, Ch. J.

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 *462injury inflicted upon the subject of his seductive arts, and upon her parents and their family.

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.

*463The only circumstances in this case, which are not found in other cases, are, 1. That the father gave his daughter her time absolutely; 2. He in fact incurred no expense; 3. The suit was not instituted by him. When the daughter left her father’s house, he gave her her time, that is, he allowed her to receive her own earnings, and told her she must provide for herself. The effect of this would be, that if her employer paid her wages during her minority, the father could not compel payment again to him. But, suppose the daughter had become sick and infirm, would not the father have been liable for her support ? and in that event, surely she would be returned to her former situation of servant to her father; and even without any such necessity, I apprehend the paternal rights of the father over the child were not relinquished by what passed between them. There was no consideration for the relinquishment of his daughter’s services, and, in my opinion, he might at pleasure revoke the license he had given his daughter, and call her home and employ her in his service till she should arrive at maturity. If I am correct in this position, then the language of the late chief justice is applicable, when he said in Martin v. Payne, that the father had made no contract hiring out his daughter, and the relation of master and servant did exist, from the legal control he had over her services. This control is always presumed where the daughter is under 21; and Judge Reeve, in his Domestic Relations, p. 292, contends that even where the daughter is an apprentice to another, the father may maintain the action. He says: “ Where a daughter is bound out as an apprentice, living with her master, a rigid adherence to the idea that the loss of service is the ground of this action, would prevent the father’s recovery; but if we consider this action as really having its foundation in another principle, viz. the disgrace of the family, it would be no objection to the maintenance of this action, although the daughter should live as an apprentice to a master.” In the case supposed by Judge Reeve, there would be a difficulty which he does not notice, viz. that the master to whom the daughter was an apprentice would have a right of action, and the defendant would be liable to two suits.

*464This court, in the case of Sargent v. Denison, (5 Cowen, 116,) held that but for the cancelling the indentures of apprenticeship in that case, the mother could not have been entitled to sustain the action,. and that it was not necessary that the relation of master and servant should exist at the time of seduction ; but the question should be, in an action on the case, upon whom has the consequential injury fallen 1 In this case, if I am right in holding that the plaintiff is liable to Hurd for the expense incurred by him about the sickness of the daughter, it follows that the consequential injury has fallen upon the plaintiff; for although he has actually expended nothing, yet he is liable to pay. From these circumstances, it results that the relationship of master and servant existed, that the loss has fallen upon the father, and of bourse he is entitled to sustain the action.

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.