Dunlap v. Linton

Opinion, Mr. Justice Mitchell: The courts have been always liberal in sustaining actions of this kind, and we have accordingly looked carefully through the present case, with every disposition to save the verdict, but settled principles seem clearly against it. Though no authority has been found on the exact point as to the statute of limitations, yet all the cases treat the seduction as the cause of action, even though it be not actionable unless loss of service follow. Thus, in Chitty’s note to 3 Bl. Com., 143, it is laid down as settled, that “ in that action which is in most general use, viz., a per quod servitium amisit, the father must prove that his daughter, when seduced, actually assisted in some degree in the housewifery of his family; ” and, though the later authorities are that, if the daughter be under age, or [339] over age and residing with the father, service will be presumed if it is within the power of the father to command, yet no change has been made as to the time to which the test shall be applied, to wit, the time of the seduction; and all of our own cases in which the subject is touched at all, go upon the same view. Thus, in Wilson v. Sproul, 3 P. & W. 49, it is said by- Ross, J.: “ The relation of master and servant must exist between the plaintiff and the person seduced, at the time when the injury is committed.” In South v. Denniston, 2 W. 474, it was held that a widowed mother, with whom the daughter did not live at the time of the seduction, could not maintain the action, although the lying-in took place in the mother’s house, and the expenses were paid by her. Gibson, O. J., said the action was founded exclusively on the relation of master and servant, and, the gist of it being the consequential loss of service, “if this right be.divested or expired, the relation can be renewed but by actual service, which, to found an action for the interruption of it, must have existed at the doing of the act of which the interruption is a consequence.....But, a mother being at best in the category of a father who has parted with his right, can maintain the action but on proof of actual service at the time of the seduction.” And this is quoted with approval by Sergeant, J., in Fernsler v. Moyer, 3 W. & S. 416: “ The mother, not being bound to maintenance, can maintain the action only by proving actual service at the time of seduction.” But a case which seems to put the matter beyond further contention is Logan v. Murray, 6 S. & R. 175. There the daughter was seduced during her father’s lifetime, but was not confined until after his death, while living with and rendering service to her mother who was at the expense of the confinement. It was held that an action by the mother could not be maintained. “Whatever damage the mother might sustain,” said Duncan, J., “ arose from an act committed in the father’s lifetime. The daughter was his servant. When the mother became, on her husband’s death, the mistress of the house, the mischief was done; the daughter came into her service pregnant. If the alleged trespass gave her no cause of action, the consequence of the trespass could not.....I agree that this action is considered with great liberality, and that courts of [340] justice have extended it very far in comprehending not only parents, but other relatives in loco parentis; but they have always adhered to the nature of the action; have never extended it to cases where at the time of the injury done the person complaining was not, in contemplation of law, either enjoying the services of others, or having a righiC to retain them.....The lying-in expenses, the support of the daughter, the mental pain she may have sustained, do not of themselves give the cause of action, although in truth the latter forms the principal feature in giving damages.” This case is decisive that the cause of action is the seduction, and that no new action arises from the subsequent results to the plaintiff. It establishes, therefore, that the cause of action in the present case was complete more than six years prior to the writ, and that the statute of limitations was a bar. The defendant’s first point should have been affirmed. Judgment reversed.