§ 28. Sole traders.-A married woman may, upon proper proceedings had, become a sole trader, and as such may sue and be sued alone, without being joined with her husband, in reference to all property used by her in her business, or property and profits acquired therefrom.56 Upon her first engaging in such trade it is presumed to be with funds of the community.57 The property acquired by her is separate, but is not to be classified with the separate property described in the act defining rights of husband and wife as to separate and community property.58 § 29. For injuries to minor child or servant.-Both at the common law and under the code, the master may recover damages for injuries to his servant or minor child. The gist of the cause of action is the loss of the service of the servant or child. Under the code it is provided that a "father, or in case of his death or desertion of his family, the mother, may maintain an action for the death or injury of a minor child, and a guardian for the death or injury of his ward, when such death or injury is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed by another person, who is responsible for his conduct, also against such other person. 1959 Where the mother is divorced on the grounds of extreme cruelty, consisting in driving her and infant off at point of a pistol, and showing that the father had not contributed to their support since divorce, it is a desertion within the meaning of this section, and the mother may maintain action for death of the infant. Under this section the minor may sue by his guardian and recover for the injuries he has sustained; or the parent may sue and recover for the damages sustained by him. If the minor sue, he cannot recover for the special damages sustained by the parent; and the parent may bring and sustain his action for such special damages, notwithstanding the recovery by the child. If the child do not sue, the parent cannot, in the same action, recover his 56 Cal. Code Civ. Proc., §§ 1812-1819; Idaho Rev. Codes, §§ 3884-3888; Mont. Rev. Codes, §§ 7376-7377; Nev. Comp. Laws, §§ 545-549. 57 Bashore v. Parker, 146 Cal. 525, 80 Pac. 707. 60 58 Camden v. Mullen, 29 Cal. 564. 59 Cal. Code Civ. Proc., § 376. See Munro v. Dredging Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303. 60 Delatour v. Mackay, 139 Cal. 621, 73 Pac. 454. special damages, and also the damages which the child might recover, if he brought suit by his guardian, the action, when brought by the parent, being one of that class which is permitted to be brought without joining the person for whose benefit it is brought, and unless the action, when brought by the parent, is to be regarded as for the benefit of the minor, there would seem to be no obstacle in recovering in an action brought by the child. In actions for injuries resulting in death, the measure of damages is left to the sound discretion of the jury. Under the Colorado statute (Gen. Laws, 1877, p. 343), if the deceased be a minor, the father and mother may join in the suit and each shall have an equal interest in the judgment. But the joining of the father and mother is permissive, not imperative, and either may sue alone. Under the California statute (Code Civ. Proc., § 377), an action for an injury resulting in death can be brought by either the heirs or the personal representative, but separate actions cannot be brought or maintained. by both, and a former recovery by an executor may be pleaded and proved in bar to an action subsequently brought by the heirs of one killed through the negligence of the defendant.62 99 63 61 § 30. For seduction. The codes have made great changes in some of the states in the rules of the common law in regard to the liabilities for seduction. Section 374 of the California code provides that "an unmarried female may prosecute, as plaintiff, an action for her own seduction, and may recover therein such damages, pecuniary and exemplary, as are assessed in her favor. Section 375 provides that "a father, or in case of his death or descrtion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service." Neither of these sections imposes any restrictions upon the right to maintain the action. The unmarried female, whatever her age, whether living with her father or guardian, or not, may maintain the action. 61 Pierce v. Conners, 20 Colo. 178, 46 Am. St. Rep. 279, 37 Pac. 721. 62 Hartigan v. Southern Pacific Ry. Co., 86 Cal. 142, 24 Pac. 851. Nor does the right of the 63 As to the meaning of the word "seduction" as used in this section of the code, see Marshall v. Taylor, 98 Cal. 55, 35 Am. St. Rep. 144, 32 Pac. 867. 64 father or guardian depend upon the question whether the female is living with or in the service of the father or guardian. Some questions as to the measure of damages, and the right to maintain several actions for the same seduction, arise which are not free from difficulties. If the female who has been seduced be at the time a minor, and living with her father, the loss of service accrues to him. Can she recover for that? May she maintain the action and recover all other damages, and her father maintain a separate action and recover for the loss of services? If so, can he recover anything more unless he has incurred expenses directly caused by the seduction? In some states each one may recover both actual and exemplary damages. If the seduction occurs after she has attained her majority, can the father maintain any action therefor? If he can, does the recovery go for his benefit, or only for the daughter's? Would a recovery by him bar an action brought by the daughter? Or a recovery by the daughter bar an action brought by the father? Section 3339 of the Civil Code declares, "the damages for seduction rest in the sound discretion of the jury." Section 49 of the Civil Code provides, "the rights of personal relation forbid: 3. The seduction of a wife, daughter, orphan sister, or servant. The rule in relation to actions for torts is, that "the person who sustains an injury is the person to bring an action for the injury against the wrongdoer." Under the Penal Code of California seduction is a felony. At common law no action could be sustained for damages in cases where the wrong amounted to a felony. These provisions of the Code of Civil Procedure, however, give the right to maintain the action, but whether the common-law rule that an action based upon a tort cannot be maintained by any one who has not suffered legal damages is changed by these provisions, is not free from difficulty. The seducer may be a married man,65 and a married woman may be seduced, but she cannot recover under section 374.66 It is true that formerly the woman who was seduced could not maintain the action, having (on the ground of volenti non fit injuria) suffered no legal wrong; and the person who can bring an action is the parent or master, who sues, in theory at 64 Stevenson v. Belknap, 6 Iowa, 97, 71 Am. Dec. 392 65 Marshall v. Taylor, 98 Cal. 55, 35 Am. St. Rep. 144, 32 Pac. 867. 66 Rea v. Tucker, 51 Ill. 110, 99 Am. Dec. 539. least, for the wrong to him, viz. the loss of service. The action, therefore, could be brought by any one who stood in the relation of master to the woman seduced, whether he were merely the master, or the parent, brother, or other near relative of the woman. Nor was it any objection that the woman was of age at the time of the seduction; and it has been held, in a case where she lived with her father and acted as his servant, no objection to the action that she was a married woman." But service of some sort was held to be absolutely essential. Where, therefore, the daughter was living independently, and supporting herself and the family, neither the parent nor any one else could maintain an action for her seduction.68 67 Under section 375 of the California code, it is plain that the "service," which was formerly essential, is dispensed with as a foundation of the right of the parent to sue; and we may, therefore, conclude that the parent has the right now, independently of any loss of services, to recover to the same extent as formerly. If this be true, it would follow that a recovery by the parent would be a bar to an action brought by the daughter; and that a recovery by the daughter would be a bar to an action brought by the parent for more than special damages (if any were sustained) which from their nature could not have been included in the former recovery. Section 34 of the Oregon code is identical with section 375 of the California code, but section 35 of the Oregon code restricts the right of an unmarried female to sue for her own seduction to those over twenty-one years of age; and further provides that the prosecution of an action. to judgment by the father, mother, or guardian, as prescribed in section 34, shall be a bar to an action by such unmarried 67 Harper v. Luffkin, 7 B. & C. 387. Under the Iowa code (§ 2556), no action can be maintained by a parent for the seduction of an adult child. Dodd v. Focht, 72 Iowa, 579, 34 N. W. 425. 68 Manly v. Field, 29 L. J., 79 C. P., 7 Com. B. (N. S.) 96. It has been held that a father may recover for the loss of service of his infant daughter caused by her being gotten with an illegitimate child, although she was not at the time actually in his service, provided he still retained the legal right to reclaim such ser vice; Lavery v. Crooke, 52 Wis. 612; 38 Am. Rep. 768, 9 N. W. 599. See Lawyer v. Fritcher, 130 N. Y. 239, 27 Am. St. Rep. 521, 29 N. E. 267, 14 L. R. A. 700; Simpson v. Grayson, 54 Ark. 404, 26 Am. St. Rep. 52, 16 S. W. 4. So an imbecile daughter over the age of twenty-one years is to be regarded as a minor, for the loss of whose services by reason of seduction the father may recover, so long as she remains at his home or under his control. Hahn v. Cooper, 84 Wis. 629, 54 N. W. 1022. female. Under section 450 of the New York Code of Civil Procedure, a wife may maintain an action in her own name and for her own benefit, without joining her husband as a party, against one who has enticed him from her, alienated his affection, and deprived her of his society." 69 Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553. So in Ohio: Westlake v. Westlake, 34 |