5 Barb. 661 | N.Y. Sup. Ct. | 1849
That the plaintiff stood in fact, in loco parentis, to Mary Ann Campbell, that she was his adopted daughter, there is no question. The defendant’s first point rests solely upon 'the supposition that the plaintiff was bound to go farther, and show a legal right to stand in this relation to her, and that the proof was insufficient to establish it. The right to maintain this action depends upon the relation of master and servant—not of parent and child—and it may well be doubted whether courts will look beyond the relations which actually exist, in an action of this character, for the purpose of inquiring by what right they are sustained. In Harper v. Luffkin, (7 Barn. & Cress. 387,) the plaintiff was allowed to recover for the seduction of his married daughter, who had separated from her husband, and returned to reside in his family. Lord Tenterden, in that case, said “ in many instances married women are in fact, hired servants. Such contracts are no doubt liable to be defeated at the will of the husband, but unless he interferes, it by no means follows that the relation of master and servant may not exist, especially as against third persons, who are wrongdoers. It appears to me that it did in fact exist in this-case. And in the absence of any interfe
In Edmondson v. Machel, (2 T. R. 4,) the plaintiff brought an action for an assault and battery upon his niece, by which the plaintiff lost her service, &C. The girl lived with the plaintiff, who was her aunt, though her mother was living. It does not appear from the report of the case that there was any contract between the plaintiff and the mother of the child, giving the former a right to her services, yet the action was maintained.
But it is not necessary to go- the' length of these cases to maintain the present suit. The girl has not heard of her father in fourteen years, and supposes him dead. The jury and court were justified in coming to the same conclusion. She has by the permission, at least, of'her remaining parent, resided in the family of the plaintiff as his child, has rendered him service and obedience, and he, in turn, has educated, protected and supported her ever since she was' seven years of age. And if it were necessary to prove a contract, this long acquiescence on the part of those who might claim her services, and the performance during this time of the'parental duties assumed by the plaintiff, would be sufficient, prima facie, for the' purposes of this suit, to establish it. The' bill of exceptions states that the plaintiff “ took her to' bring up.” This may imply a contract.
For the purpose of prosecuting this suit, the plaintiff stands in the place of a natural parent, which embraces the relation of master, and is entitled to the same kind of redress. (Irwin v. Dearman, 11 East, 23.)
2. The conclusion I have come to on the defendant’s first point involves a decision of the second.- Exemplary damages may always be allowed in this kind of actions, in the discretion of the jury. After a legal cause of action is made out, they have a right to determine whether the plaintiff and his family have suffered in reputation or otherwise, from the wrongful conduct of the defendant, and to award for such injury, what they may deem a suitable pecuniary redress. The authorities cited by the defendant to this point (24 Wend. 424 ; 4 Denio,
A new trial must be denied, with costs.