122 Ky. 53 | Ky. Ct. App. | 1906
OPINION by
— Affirming
Appellant sought by this action to recover of appel-lees, "W. J. Abram and. Eugenia Turner, damages for the alleged unlawful detention by them of her three children — -Carrie E. Turner, aged 14 years; Henry Turner, 10 years; and W. J. Turner, .8 years. The allegations of the petition as amended were, in substance, that appellant permitted her daughter, Carrie E. Turner, to visit appellees-, with- the expectation that they would allow her to return home when appellant desired her to do so, but that appellees refused to let her return, or to let appellant visit her, and likewise refused to let the daughter write to appellant,
The single question presented by the record for our consideration is, does the petition state a cause of action? It will be observed that the petition does not allege any damage from the loss to appellant of the society or services of her children, or that she had any right to their services. Her only complaint was that by the malicious and wrongful acts of appel-lees her children were kept from and not allowed to
The learned author here states the common-law 'doctrine in its naked form, and the harsh consequences possible from the narrow interpretation formerly given it; but such an extraordinary application of it as he suggests is not allowable under the modern decisions. While the courts yet adhere to the old principle that the loss of services is the foundation for the action, it is not essential that the child should be capable of rendering service to the parent, but only that the parent has the right to claim the services of the child. While some of the more recent authorities hold that, to enable a parent to maintain an action for ah injury to, or for harbóring or en
We are, however, of opinion that the lower court ruled properly in sustaining the demurrer to the petition, as it should have alleged that appellant had, by the wrongful acts of appellees, been deprived of the service of her children, and that she was entitled to their services. Furthermore, the petition does not show a right in appellant to maintain the action. In Soper v. Igo, Walker & Co., supra, it was held that the mother of an abducted child, although as much entitled to his services, and as subject to mental suffering from the loss of his society, as the husband and father, could not in her own right main
Judgment affirmed.