Mercer v. Walmsley

delivered the opinion of the court.

*31The objection, that an’action on the case will not lie -by a father for debauching and getting his daughter with child, per quod servitium ami'sit, cannot be maintained either on principle or authority. "Where a man illegally enters the house of another, and debauches his daughter, the father may have an action of trespass quare clausumfregit, and lay the debauching of his daughter, and loss of her services as consequential; or he may at his election, bring an action on the case for debauching Ills daughter, per quod servitium amisit; but for merely debauching a man’s daughter, unaccompanied by an unauthorised entry into the fa-; ther’s premises, the action is case, and the loss of service is the gist of the action.

The only question, therefore, in the case before us is, whether the evidence exhibited in the bill of exceptions is such as to enable the plaintiff to recover? and we clearly think that it is not. Margaret Walmsley, the daughter, the only witness examined at the trial, was produced by the father himself, and from his own .shewing it appeals that she was upwards of twenty-one years of age, was not his servant de facto, and did not live with him at the time she was debauched; but that she was living at the house of the defendant, where she had lived more than a year, doing different descriptions of work, and attending to the affairs of the family generally.

A father may maintain an action for debauching his daughter when under age, per quod servitium amisit, whether she was living with him at the time the offence was committed or not; for from the legal controul he had over her services, the law implies the relation of master and ■servant, unless in the case of her not living with him he had, by some act of his own, destroyed that relation. She is his servant de jure, and by debauching her an act is done that deprives him of services, which he might have exacted. In the case of Dean vs Peel, reported in 5th East, 47, it was held, that the daughter being in the service of another, and having no animus revertendi, the relation of master and servant had ceased to exist, and that therefore the father could not maintain the action. But it is much questioned whether merely by her volition a daughter under the age of twenty-one years, can so divest her father of his power to reclaim her services as to affect his right of action. But when a daughter is over the age of 21, and *32not in the actual service of her father when the injury is done, he cannot sustain the action. And so are all the authorities except the case of Johnson vs M'Adam, cited in the case of Dean vs Peel. In that case. the daughter was under the age of 21 when she left her father’s house, but attained that age á short time before she was seduced; and the judge before whom the cause was tried, considering it a middle case, saved the point; there was no new trial moved for, and the question was never afterwards decided. But it appeared in summing up the evidence to the jury, that the judge went on the ground, that from the circumstances of the case she might be considered as continuing to be a part of her father’s family. If a daughter be living with her father, and in his service, though over the age of 21, the action may be sustained, and any slight service will be sufficient to raise the inference of fact, that she was his servant; as in the case of Bennet vs Alcott, 2d Term Rep. 166, where the daughter was SO years old. But where the daughter was above the age of 21, and in the service of another at the time of the injury, the action cannot be maintained by the father.

In this case it is contended that the daughter was not the servant of the defendant, there being no contract for wages; but let it be remembered, that he frequently gave her money in consideration of the services she rendered in his house of a menial nature, and authorised her to call for money whenever she wanted it, and that she was living with him at the time; and it is enough to defeat the action that she was not living with her father, but with another. It is only where a daughter, being above 21, was living with her father, that a slight act of service is held to be evidence of her being in fact his servant; and it is not like the case of an infant daughter, living out of her father’s family, where the law ^implies the relation of master and servant, for eo instantfg that the daughter reaches the age of 21, the relation of master and servant de jure ceases to exist, and the law will not imply it. It must be shewn that she was her father’s servant defacto at the time, &c. which cannot be when living in the family of another, as-in this case.

It has been urged in argument, that whether Margaret Walmsley was the servant of her father or not, at the time she was seduced, was a fact proper to be found by the ju*33l-y-, and not within the province of the court to decide; áíid on that ground the refusal of the court to direct the jury, that the evidence produced by the plaintiff was not sufficient to support the issue on his part, is defended. But the principle, that the jury is the proper tribunal to judge of the facts, in a cause that is tried before them, is not applicable to this case, and cannot be brought in aid of the argument. Here the evidencé was all on the side of the plaintiff, and the facts on which he rested his case appear in the bill of exceptions. These facts shew that his daughter was more than 21 years old, was not in his family, but living in the house of the defendant, at the time she was debauched. From his own shewing, therefore, it is proved, that she was not in his service at the time of the injury complained of, and the jury could not be left to infer that she was, in direct opposition to the only proof in the cause, and that proof too, produced by himself; there was nothing to be found by the jury* The bill of exceptions exhibits the plaintiff’s case, his supposed cause of action; and the question was not a question of fact, whether she was in the service of her father or not, but whether, not being in his service, and above the age of 21, the action could be maintained; which was a sheer question of law for the court to decide; and the law being clear that it could not, the court ought so to have directed the jury.

A father cannot sustain an action for the seduction of his daughter of full age, not residing with him; and it seems doubtful whether the action is maintainable if she is living with him, unless she is in the habit of rendering services to her father; and although they may be inconsiderable, yet they would seem essentially necessary to authorise him to sustain the action.

In the case of 2 Term. Rep. 166, where the action was brought for the seduction of the daughter, per quod servitimn amisit, the daughter was living tvith the father, she was thirty years of age, and from any thing appearing in the ease, never had left her paternal roof. Even those circumstances, it would seem, were inadequate to the maintaining of the action, unless she was in the practice of rendering services to, or working for, the father; which was relied on as the ground of the determination sustaining- the action.

*34The foundation of the action per quod servilium amisii, is the right of the plaintiff to those services, for the loss of which he claims compensation. For, as for every loss or injury there is a reiVxedy, so also where there is no loss oi* Injury no suit can be sustained. No person can complain and claim a compensation for the loss of services, unless he had a right to those services; and no father can complain in law for the seduction of his daughter of full age. acting for herself, unless the right to the suit depended on the connexion of father and child, and if that was of itself sufficient, then it would follow, that a father in all cases could maintain the suit, a position not maintainable.

It is believed that all the cases which have been produced establish incontrovertibly, that the father, as such, is incompetent 10 maintain the action; and if, as such, he cannot support the claim, another connexion than that of father and child is indispensably necessary.

Where the daughter lives with the father, rendering services., that connexion is sufficient, even when she is at the time of the seduction of full age. Where she is a minor, whether residing with him or not, the suit can be sustained, because he has a right to her services, and can control her.

In the case of 5 Hast, 47, the daughter, at the time of seduction, was a minor, not residing with the father. There the suit was not sustained; fee reason given for fee opinion was, because she never intended to return to the father. I doubt the correctness of feat decision, founded on such a reason. For fee right of the father to the services of the daughter,during minority, depends not on her. Let her design to leave him be ever so determihed, she has no legal i%ht so to do, or when from under his roof, she has no right to form a determination never to return; and if such a determination is made, still fee father has a right to compel her return, and have fete benefit of her services. Nor is it clear to me, that even with fee consent of the father, that she should permanently leave his protection, would the case be materially different; for as no contract between fee father and minor daughter would be binding, a stipulation or understanding that she should permanently leave him, and -shift for herself, would be nugatory. Hut feat is not the case now before the court. It will be time enough ultimately to determine what resjject should be paid to the cgse m *353 East, when a similar cause is brought before the court-I say, what résped, for it is no authority bidding on this C0Urt- " '

The case in 5 East, and the case of Johnson vs. M'Adam, were mainly relied on by the appellee in this case- The case in East, as establishing the position, that the gist of the adion was the animus révertendi, and that where that existed, whether the seduction took place while living with her father or not, whether a minor, or of full age, was immaterial.

The right to sustain the suit cannot depend on that principle. The right of the father to claim a compensation for the loss of services, must rest on his legal right to those services; it rests on a more solid foundation than Ms daughter’s intention.

It may be sufficient to remark, that the case of Johnson vs. M'Adam, was a nisi prizes decision, made by one judge only, who undertook to draw a line of discrimination, not warranted, in my opinion, by the previous decisions. That case could only have been sustained on the ground of an express or implied contract existing between the father and daughter, that she would serve him. But the case of Johnson vs. M'Adam is distinguishable from the case before the court; and if it was not, it cannot be called an authority obligatory on this court.

The decisions that have taken place in the State of New York, place the action on the correct principle or foundation, that is, the right to the services of the daughter express or implied; it is believed, on a careful examination, it will be found that it is the gist of the action.

In 10 Johns. Rep. 115, the suit could not be sustained, the daughter having been of full age, and occasionally working out for wages, although she was in the habit, of applying those w'ages to the accommodation of her parents.

In a case like that, there must have been every, inclination on the part of the court to sustain the suit, and had they pursued the course that was adopted, in Johnson vs. M'Adam, it would have been described,, as á middle case, and the action would have been maintained; for by the same prin ciple; that ruled the case before Justice Wilson, the judges of New York might have inferred, that as the daughter was in the habit of applying her wages to the benefit of her father’? family, there was an implied agreement *36she should so apply them, and consequently, by the act of the defendant, the father was deprived of her services, and the suit could be sustained. 'But such was not the decision. It seems to make a material difference in the estimation of the counsel for the appellee, that before the father can be deprived of his claim to services, when the daughter is of age, that some other person, under a subsisting contract between him and the daughter, should have a right to them. But it is not necessary, in order to defeat the suit, that that should be the case. If she is a minor, the father rightfully claims; if of age and hired out, the master claims; if of age, not residing with her father, she is her own mistress, and works for herself, and no person can legally complain of being deprived of her assistance.

JUDGMENT REVERSED.