Kennedy v. Shea

110 Mass. 147 | Mass. | 1872

Ames, J.

In order to maintain an action of this description, fche plaintiff is required to prove that the relation of master and lervant between himself and his daughter existed, either in fact or constructively, at the time of the seduction. According to numerous decisions of the courts of New York, Pennsylvania, and some other states of our Union, this relation is sufficiently proved by evidence that the daughter was a minor, and that the father had a right to her services. Those decisions also lay down the rule that the effect of such evidence is not impaired by the fact, that, at the time of the injury, she was not living in her father’s family, but was in the actual employment of another person It was held that such a fact would not justify the inference that the father had abandoned any of his paternal rights, unless the daughter had been actually bound out as an apprentice. In other words, the relation results constructively from his right to reclaim the custody of her person, from his responsibility for her education, and from his obligation to support her if she should become sick or disabled while so absent from her home. Martin v. Payne, 9 Johns. 387. Nickleson v. Stryker, 10 Johns. 115. Clark v. Fitch, 2 Wend. 459. Bartley v. Richtmyer, 4 Comst. 38. Mulvehall v. Millward, 1 Kern. 343. Hornketh v. Barr, 8 S. & R. 36. Vanhorn v. Freeman, 1 Halst. 322. Mercer v. Walmsley, 5 Har. & J. 27. With regard to her earnings, the privilege allowed to her to retain a portion of them in her own hands, in order to purchase clothing, must be considered as permissive only. There is nothing in the report inconsistent with an absolute right on the part of the father to terminate her engagement with her employer, and to require her at any moment to return to his own house. As against the excepting party, it is to be presumed that he offered to prove every fact that he was in a. condition to prove, having a tendency to disprove the existence of the relation of master and servant between the plaintiff and his daughter. There having been no attempt to prove the contrary, it may be assumed that she had never been emancipated from the paternal control, and that her father was entitled to her earnings, so that she was de jure his servant. So far as the American an thorities go, therefore, the plaintiff has done all that was incumbent upon him in this part of the case.

The rule adopted in the English courts apparently requires that the relation of master and servant should be proved witi greater strictness where the daughter does not reside under the paternal roof ; and according to Thompson v. Ross, 5 H. & N. 16, the action cannot be maintained if, at the time of the seduction, she was a domestic servant in a family other than that of her father. But it is well settled, even under the English rule, that the amount and value of the actual service to the father are of but little importance, and that any service, however slight, is sufficient. Bennett v. Allcott, 2 T. R. 166. It is enough if the father had a right to her services, and if some service was rendered. The case finds that he was entitled to her services a portion of every week, and that she was actually employed on Sundays at his house, in cooking and other domestic work, upon his requirement. If so, her entire service did not belong to her employer, Warner, and the action could well be maintained even under the English decisions. See judgment of Bramwell, B., in Thompson v. Moss, ubi supra.

The evidence which was admitted under objection, as to the fact that the daughter lived and rendered services in her father’s family, for about two weeks, several months after the seduction, although perhaps open to objection as immaterial, cannot have had any effect upon the verdict, and does not have any bearing upon the plaintiff’s right to recover. The jury were instructed that the relation must be proved to have existed at the time of the seduction.

As the gist of the action is the debauching of the daughter, and the consequent supposed or actual loss of her services, it is. immaterial to the plaintiff’s claim under what special circumstances the injury was wrought, or whether it was accompanied with force and violence or not. The action will lie, although trespass vi et armis might have been sustained. It would be no defence, -that the crime was rape, and not seduction. Furman v Applegate, 3 Zab. 28. The father in such cases may always seek his remedy in an action on the case. Bennett v. Allcott, ubi supra. Chamberlain v. Hazelwood, 5 M. & W. 515. 2 Greenl Ev. § 571.

As to the statute of limitations, there was evidence to the effect that the defendant had been absent from the state for year» after the cause of action accrued. The number of years was not stated by the witness with precision, the expression being two, three or four years. As the defendant himself must have had knowledge on this subject, and made no attempt to show what the exact number of years was, it was evidence proper to be laid before the jury. It is impossible to say that there was no evidence on the subject. Exceptions overruled.