54 Pa. 375 | Pa. | 1867
The opinion of the court was delivered, by
This was an action by a widowed mother
The son, a young man eighteen years of age, lived with his mother, and occasionally earned money for her by small jobs of labor, and she nursed him after he was hurt, and furnished medical attendance. The evidence was sufficient, had the action been by a father, to establish the relation of master and servant, and it ' is in right of such a relation, rather than in her character of parent, that the mother claims damages in this action. There was no evidence of an express contract between the mother and son by which she was entitled to his services, and at law she has no implied right to them.
A father is bound by law to support and educate his children, and is entitled to the correlative right of service, but a mother not being bound to the duty of maintenance, is not entitled to the correlative right of service, and the relation of mistress and servant can be constituted between them only as it may be constituted between strangers in blood, save that less evidence would perhaps be sufficient to establish it: South v. Denniston, 2 Wright 477 ; Leech v. Agnew, 7 Barr 21.
By the Act of 16th June 1836, the mother of every poor person not able to work, if she be of sufficient ability, may be charged to relieve such poor person at a rate to be prescribed by the Court of Quarter Sessions, under pain of forfeiting a sum not exceeding twenty dollars a month; but her right to such an action as the present cannot be rested upon this contingent liability. It is true that the injury her son received increases the probability of his becoming chargeable upon her under the statute, but no liability has yet attached, and no statutory proceeding has been instituted. If the action was grounded upon such a statutory liability, it would be set forth in the declaration, and the damages wrould be limited to the statutory measure. In actions for seduction, where the loss-of service is the gist of the action, the cases have gone very far in implymgXnghtoT^emceñí very slight evidence
Í Torts that spring from contract, that consist in mere omission of a contract duty, are strongly distinguished from the above. class of wrongs, and for these no legal remedy exists except by an , action on the case, and in this class of cases the action must be ' by the party injured, and cannot be brought by the master orw mistress. The late case of Alton v. The Midland Railway Co., reported in the Jurist of August 1865, p. 672, is full to the point. It was an action on the case against a railway company for carelessly carrying the servant of the plaintiff, one Charles F. Baxter, whereby he was injured and the plaintiff lost his services. Plea that the defendants contracted with the said Baxter and that they did not contract with the plaintiff. Demurrer to the plea. The case was very fully argued upon the authorities, and Erie, C. J. of Common Pleas, in the course of his opinion, said: “ I take the/ law to be clear that where a master loses his servant’s services 1 by an act ex delicto the master has a right of action for the lossi he has sustained. But in all cases where the master has recovered l the injury has arisen from a wrong; and there is no instance \ where damages have been given in breach of a contract. Look- I ing at all the authorities there is not one in which the master re- \ covered for a consequential damage in a contract between the servant and the defendant.” Equally emphatic and precisely to the same effect were the seriatim opinions of Willes, Byles and Smith, Justices.
The duty to carry him safely was a duty which the company owed to him., and, said Byles, J., in the case cited from the Jurist, “ the law is clear and it would lead to alarming consequences if it were otherwise, that no man can bring an action for breach of duty but for a breach of duty to himself.”
/ Thus, then, this case stands — an action by a mother who has no I common-law right to the services of her son and no special con-1 tract which constitutes her his mistress. But if she really stood 4n that relation to him, her action is founded upon breach of a contract to which she was a stranger and which was not made in her service, as that in Alton’s case was made in the course of the master’s business. It' belongs not to the category of actions for I seduction, and no precedent has been shown to justify it, whilst 1 the English judges declare that in that country, so fertile in precedents, not one exists for such an action. When to these considerations we superadd the legislation which, both in England and in this country, has been necessary to give mothers a right of action for negligence that causes the death of a child, it seems very obviously our duty to declare that the action ought not to have been sustained and that the judgment must-be reversed.