Sidebilder
PDF
ePub

At the trial of the cause, the plaintiff to support the issue on his part, produced Margaret Walmsley, his daughter, who proved, that some time in the year her father sent her to the defendant's house to live; that upon her arrival there the defendant told her he had promised her father she should live with him as long as she lived, that he was better able to maintain her than her father was. That she had been at the defendant's more than a year before he spoke indelicately to her. That she usually slept in the room with the defendant's daughter, Mrs. Davis, but her bed in that room being occupied some time in the month of July, 1816, she went to bed in an adjoining room. That during the night, the defendant came into her room, whilst she was asleep, and got into bed with her. That she made resistance, but he stopped her mouth with the sheet, and succeeded in having criminal knowledge of her. That he afterwards lay a considerable time in bed with her, without her making any noise or attempt to alarm the family. That he promised to marry her, or forfeit all he was worth in the world. That whenever Mrs. Davis was away, she did not sleep in the defendant's house 29 except on two occasions, both of which happened after the criminal connexion. That she will be 25 years of age on the 1st of April, 1819; and lived in the defendant's house near three years, and left it five months after she became pregnant. Before she went to the defendant's house to live, she had been living first at Mr. Porter's when she was between 14 and 15 years of age; and after staying there some time, returned to her father's house. Some time afterwards she went to live with Mrs. Savin, from thence she again returned to her father's, and then went to live at Gideon Longfellow's, where she continued a few weeks before she went to live at the defendant's. Upon going to the defendant's to live, she made no contract for wages, but after she had been there some time, the defendant gave her money, and told her, whenever she wanted any to tell him and he would give it to her. That she did frequently ask him, and he always gave her money. That she also received money once from her father, whilst she lived with the defendant, and occasionally got articles out of two different stores, in which she had a credit on her father's account. That whilst she lived in the family of the defendant, she knit, spun and sewed, and attended to house-keeping affairs generally. That she always conceived herself at liberty to leave the family of the defendant whenever she might choose so to do; and frequently went to her father's on a visit, and to help them, when they had a press of work; and ouce went to nurse her stepmother, who was ill. That after the act of criminal connexion, the defendant sent her to a Mr. Williams, in Delaware, where she was delivered of a child; and while there, her brother came to her, and told her, that her father had provided a home for her; but she did not go; and shortly afterwards the defendant came and carried her from Williams' to Wilmington, and from thence she went, at his in

stance, to Philadelphia. At leaving Wilmington, the defendant gave her three dollars. She did not know that her father was apprised of her removal from Mr. Williams', or the place to which she went. On her arrival in Philadelphia, she went to Mrs. Fisher's, and remained there a short time, when her father sent for her, and she went with his messenger to the house of a relation of her's where she has remained ever since. That she would have returned to her father's house, had Mrs. Davis either died or removed, at 30 any time whilst she lived there. The defendant never had connexion with her but once whilst she lived with him; and she never had connexion with any other person. That each time she returned to her father's hause, it was to stay there until she got another place; and she does not know that her father has been at any expense, or paid any money on account of her sickness or lying in. That she was delivered of the child on the 7th of April, 1817, at Mr. Williams', where the defendant had sent her. The first advances made by the defendant, was about a year after she first went to reside at his house, and he made repeated advances between that time and the time he succeeded. That the reasons why she did not quit the defendant's house, after he had made those proposals to her, were that he persuaded her not to remove from his house, and continue to respect his promise to marry her. That she did not consider herself authorized to demand, nor did she expect to recover pecuniary compensation for any services rendered by her in the family of the defendant; nor did she consider the defendant bound to pay her; and that she considered the money given to her by the defendant, as a gift made to her by him in consequence of the services she had rendered about the house. The plaintiff here rested his case; and the defendant then prayed the Court to direct the jury, that the evidence produced by the plaintiff was not sufficient to entitle him to recover. Which opinion the Court [EARLE, C. J., PURNELL and WORRELL, A. J.] refused to give. The defendant excepted. Verdict and judgment for $6,000 current money, damages, and costs. The defendant appealed to this Court.

The cause was argued in this Court before BUCHANAN, JOHNSON, and DORSEY, JJ. by

Gale and Cosdon, for the appellant. They cited 1 Chitty, 47; 5 East, 45; 2 T. R. 166; 10 Johns. Rep. 115; Ld. Raym. 1032; 5 Bos. & Pull. 476.

Chambers and Carmichael, for the appellee. They also cited 2 T. R. 166; 5 East, 47; 3 Burr. 1878; 10 Johns. Rep. 115; Doug. 119; 2 H. Blk. Rep. 187; 4 H. & McH. 547; 3 Wils. 47; 4 Cranch, 71; S Johns. Rep. 495, 496, 505; 9 Johns. Rep. 387.

31

[ocr errors]

The

BUCHANAN, J. delivered the opinion of the Court. objection, that an action on the case will not lie, by a

father, for debauching and getting his daughter with child, per quod servitium amisit, 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 clausum fregit, 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 his daughter, per quod servitium amisit; but for merely debauching a man's daughter, unaccompanied by an unauthorized entry into the father's premises, the action is case, and the loss of service is the gist of the action.

The only question, therefore, is 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 appears 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 daugher 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 control he had over her service, 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 5 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 twentyone 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 * not 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'Adum, 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 a short time before she was seduced; and the Judge before whom the cause was tried, considered 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

32

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, 2 Term Rep. 166, where the daughter was 30 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 authorized 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 instanti 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 de facto, 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 jury, and not within 33 the province of the Court to decide; and 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 evidence 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.

JOHNSON, J. 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 authorize 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 servitium amisit, the daughter was living with the father, she was thirty years of age, and from any thing appearing in the case, 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 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.

* The foundation of the action per quod servitium amisit, is 34 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 remedy, so also where there is no loss or 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 connection 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 to maintain the action; and if, as such, he cannot support the claim, another connection than that of father and child is indispensably necessary.

Where the daughter lives with the father, rendering services, that connection 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 East, 47, the daughter, at the time of seduction, was a minor, not residing with the father. There the suit was not sustained; the reason given for the opinion was, because she never intended to return to the father. I doubt the correctness of that decision, founded on such a reason. For the 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 determined, she has no legal right 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 the father has a right to compel her return, and have the the benefit of her services. Nor is it clear to me, that even with the consent of the father, that she should permanently leave his protec

« ForrigeFortsett »