Lampman v. Hammond

E. Darwin Smith, J. If the plaintiff was the father of the young woman seduced, his right of action would be undeniable and probably unquestioned. Such right of action is based on the relation of master and servant, and not upon that of parent and child, but the father may maintain the action for the seduction of his minor daughter upon the presumption, without proof, of a loss of service, because he is entitled to command such service. Bartley v. Richtmyer, 4 N. Y. 38; Mulvehall v. Millward, 11 id. 346; White v. Nellis, 31 id. 406. The real question in the action is, can the mother, after the decease of the father, maintain such action. In Reeve’s Domestic Relations, p. 293, it is said: “ This action is • maintainable, where the father is deceased, by any one who stands in loco parentis, as by a mother or aunt.” Also, see 2 Kent Com. 205. On the death of the father, during the minority of the child, his authority and duty, by the principles of natural law, devolve upon the mother. Id. 206. While a minor daughter is living with her mother, after the decease of her father and while her mother is acting as her guardian, in fact in taking care of her, controlling her time, nurture and education, and the daughter is yielding to her the obedience and service of a child to her parent, the mother must be entitled to maintain this action, for loss of services and through that species of fiction for the greater injury done to her by the seduction and ruin of her [295] daughter, and the disgrace brought upon her and her family. Gray v. Durland, 50 Barb. 102; S. C., 51 N. Y. 424. The fact that the plaintiff, since the decease of the father of the seduced daughter, has intermarried again and has a second husband living, does not, I think, under the circumstances of this case, affect the question or change the rule. The proof in the case shows, that though the plaintiff has nominally a second husband living, she is really the head and support of the family; that she in fact owns and is possessed of a farm, which she carries on and cultivates as her own,'and as her own separate business and estate; and that the daughter seduced was but sixteen years of age, and was at work for the defendant, upon a contract for wages made with him by the plaintiff at 82.50 a week, which wages were payable and paid to the plaintiff, and the contract of service was to continue during her pleasure. The daughter, while thus at work for the defendant, at the time of her seduction was really in law andjn fact in the service of her mother, in respect to the wages she was earning, and which, by contract, the defendant was bound to pay to her. The defendant had thus recognized the plaintiff’s right to the services of her daughter, and cannot be permitted to deny that right after the seduction, to avoid the consequences resulting from his abuse of the trust reposed in him by this mother. The plaintiff, I think, is fully entitled to maintain this action within the principle asserted in the case of Gray v. Durland, supra, and of Fensler v. Moyer, 3 Watts & Leavy, 416; Manvell v. Thomson, 2 C. & P. 303; Ingersoll v. Jones, 5 Barb. 663; Sargent v. Dennison, 5 Cow. 106; and notwithstanding the fact that the plaintiff is a married woman within the case of Badgley v. Decker, 44 Barb. 577. We have no doubt that this action was properly brought and was correctly disposed of at the circuit, and that a new trial should be denied and judgment ordered upon the verdict. New trial denied.