O'Brien v. Philadelphia

Opinion by Mr. Chief Justice Mitchell, The right of action of a father for injury to a child was based on his duty of support and his consequent right to the services of the child. The common law which paid no heed to merely sentimental considerations or matters of feeling put the action on the basis of master and servant. Even the most serious of all, the seduction of a daughter, was redressed as an injury to the father as master, per quod servitium amisit. The mother being under no obligation to support had no corresponding right to service. This was the state of the law when the Act of June 26, 1895, P. L. 316, was passed. By its provisions “ a married woman, who is the mother of a minor child and who contributes by the fruits of her own labor or otherwise towards the support, maintenance and education of her said minor child, shall have the same and equal power, control and authority over her said minor child and shall have the same equal right to its custody and services as is now by law possessed by her husband who is the father of such minor child.” It is true as argued by appellant that- the primary purpose of this statute was to [409] enlarge the rights of the mother in cases of dispute between the parents of a minor child. This is apparent from the second section which subjects all such dispute to the discretionary authority of the courts. But unless we totally disregard the clear meaning in the language used we must give the act a wider application. The mother who without compulsion voluntarily does what the father is under legal obligation to do, i. e., supports the child “ shall have the same equal right to its custody and services, as is now by law possessed by” the father. In the present case if the father were now supporting the child, his right of action could not be questioned. As he is not doing so but the mother is, her right to the services is by the statute the same as his would be, and her right to sue for their loss must necessarily be the same. What would be the result if both parents had been supporting the child and were now disputing the right to sue for loss of services we need not now consider. Appellant relies on Kelly v. Traction Co., 204 Pa. 623, as giving a different construction to the act of 1895, but, examined on its facts, it is an entirely different case. There the father was alive when the injury to the child occurred, and he brought an action in his own right as father and in the son’s right as next friend. Before the trial the father died and the mother was substituted as next friend but by some oversight the jury were allowed to give a verdict to the mother in her own right. This was reversed on the ground that the right of action at the time of the injury having been in the father it was not split by the statute upon his death, and there was no evidence in the case to show a right of action in the mother under the statute. Judgment affirmed.