Keller v. Donnelly

Le Grand, C. J., delivered the opinion of this court. This action' was instituted by the appellee-against the appellant, to recover damages for the seduction of her daughter, per quod servitium amisit. It appears from the evidence that the daughter was born on the 2nd day of August 1829.- The evidence showing an acquaintance between the defendant and the daughter is first found in a letter from him to her,- dated the 14th day of July 1847. This letter alludes to previous interviews between the parties, but does not state when they took place. It also alludes to a conversation had in which she expressed a desire to leave her mother’s house,- and expresses a willingness, if such should be her determination, to provide for her. There is nothing, however in the letter intimating there had been any sexual intercourse between them. There was evidence from which it appeared that the daughter had left the house of her mother sometime in the month of July 1847, and gone to the house of a Mrs. McGee, where the defendant visited her. These facts are sufficient to present the question which lies at the foundation of the suit, which is, whether the mother can maintain the action for the seduction of her daughter? In the case of Mercer vs. Walmsley, 5 Harr. & Johns., 27, the right of the father to maintain the action was fully recog [217] msec!, whether the daughter be above twenty-one years of age or not, provided, if she be over twenty-one years of age at the time of her seduction, she be in the service of the father. During her minority the father is entitled to command her services, and the law therefore establishes between father and child constructively the relation of master and servant. This doctrine runs through nearly all the cases; but in regard to the mother there has been a great difference of opinion, some of the courts, on the fullest argument and investigation, utterly denying the right of the mother as such to sustain this action. It would be unprofitable in the view we have of the case now before us to review the various decisions on this point. The cases will be found very fully collected and commented on in the case of Bartley vs. Richtmyer, 4 Comstock, 43. But whatever may be the true character of the guardianship which the common law casts upon the mother, one thing is certain, that during the minority of the child any one standing in loco parentis, and she being in their service, may maintain the action. 2 Carr. & Payne, 303. 2 Term Rep, 4. 11 East, 23. 3 Watts & Seargt., 416. The policy of the legislation of this Staté in regard to females is, that until they are eighteen years of age they are to be considered minors, and where the mother is left the natural guardian she is entitled to her services, unless under the law the girl be apprenticed to serve at some trade or employment until she arrive at that age. The act of 2834, eh. 228, expressly recognises the mother as the natural guardian of her children, making no distinction between males and females. This act, when taken in connection with the other acts of Assembly fixing the period of eighteen years when a female shall be entitled to her estate, and to which she may be apprenticed, in our judgment, point to the period up to which the mother is entitled to the services of her female children, and we are clearly of the opinion, whatever may be the law elsewhere, that if the daughter be debauched before she is eighteen years of age and she be in the service of the mother, that the latter may maintain an action against the seducer. [218] In the case before us the girl was under eighteen when she left the house of the plaintiff. The slightest evidence will suffice to prove the relation of servant. There is testimony in the case from which the jury had the right to infer it. The witness, Mrs. McGee, proves distinctly and positively that she had seen the girl working about the house of the mother one year before she left it, and this is all sufficient to raise the presumption. We think the court improperly granted the first prayer of the plaintiff It puts it to the jury to find whether the girl was debauched at any time before she was twenty-one years of age. We have already said that we do not consider the mother as entitled to command the services of the daughter after she is eighteen years of age, and clearly if the seduction took place after she was over eighteen years of age the plaintiff cannot maintain the action.- The gist of the action is, that the parent being entitled to the services of the child, is permitted to maintain an action for the loss of those services consequent upon her being debauched.- If the girl was hot in the service of the mother, and was over eighteen years of age when she was debauched, the mother could not maintain the action, for the very essence of it would be wanting. It would scarcely be contended that if the girl had been bound ah apprentice and the time of her indent ote had expired, that the mother would be entitled to recover her subsequent earnings; and yet, if this prayer of the plaintiff be correct, such -is its effect. We think the second prayer of the plaintiff is erroneous also. It speaks of the minority of the girl without defining what period of time is covered by that term, and therefore was calculated to mislead the jury, the more particularly so as it was granted in connection with the other prayer, in which the term twenty-one years is mentioned as ■the period up to which the mother was entitled to the services of the girl. We concur with the court below in the rejection of the .prayers of the defendant. The defect in the first prayer is, .that it confines the right of recovery of the plaintiff to what [219] was done by the defendant while the girl was under the roof of the mother. The objection to the second prayer is, that it does not negative the fact that she was induced to leave the house of her mother before she was eighteen years of age. If the girl was induced to leave before she was eighteen years old and her seduction took place afterwards, the mother could recover, because being entitled to her services, and the loss of them being the gist of the action, it was a wrong on the part of the defendant to entice her servant from her duty. The same objection applies to the fourth prayer. In regard to the third, it is only necessary to say there is evidence from which the jury might infer an improper intercourse between the defendant and the daughter of the plaintiff. We think the testimony of Dr. Metcalf was improperly admitted for the purpose for which it was offered, but think it was admissible in support of the testimony which had previously been given. Whilst what occurred when the girl was twenty-three years of age could not give a cause of action, it might serve to illustrate and explain what took place five years previously. Had the testimony been offered generally it would have been admissible. 6 Gill & Johns., 488. Judgment reversed and procedendo awarded.