Mulvehall agt. Millward

Mulvehall agt. Millward. The action for seduction can he sustained, where the relation of master and servant exists actually or constructively between the plaintiff and the person seduced at the time of the seduction. It is not requisite that a minor daughter should ha actually in the service of or residing with her father at the time of the seduction, to entitle him to maintain the action. It is sufficient that he was then legally entitled to her services, and might have required them if he chose to do so. Accordingly, where a minor daughter left her father’s and went to work for the defendant, and was seduced and became pregnant by him while in his employ, and remained absent from home till after her confinement and recovery; and there was no proof that the father took care of or expended any thing on her account during her sickness; Held, that he could recover damages of the defendant for her seduction. Appeal from a judgment of the superior court of the city of Mew-York. The action was to recover damages for the seduction of the plaintiff’s daughter by the defendant. The complaint alleged that the defendant debauched and carnally knew Maria, the daughter of the plaintiff, she then and during a long time thereafter being the servant of the plaintiff, and not twenty-one years of age, whereby she became pregnant and sick with child; and by means whereof the plaintiff was deprived of and lost her services, and was put to expense in taking care of her, &c. The answer denied specifically each allegation of the complaint. On the trial in the superior court, before Justice Sandford, in March, 1852, the daughter was sworn as a witness for the plaintiff, and testified that she then resided with her father, the plaintiff, and that she attained the age of twenty-one years in January, 1852; that in November, 1850, she left her home at her father’s and went to-work for the defendant, and that within a' few weeks thereafter, and while in his employ, she was seduced by him and became pregnant; that subsequently, and before the birth of her child, she worked at otÜer places, and finally was delivered of the child at a Mrs. Greenway’s, where she was sick and unable to work during several weeks, by reason of her pregnancy and confinement. There was no evidence showing that she returned to her father’s, from the time she went to work for the defendant until after her recovery from her sickness at Mrs. Greenway’s, or that her father took any care of her, or expended any money on her account during her pregnancy or sickness. When the plaintiff rested, the counsel for the defendant moved the court to nonsuit the plaintiff, on the ground “ that no expense or actual loss of service to the plaintiff had been proved.” The motion was denied, and the counsel for the defendant excepted. Evidence was given by the defendant and the cause submitted to the jury, which rendered a verdict in' favor of the plaintiff for $3000 damages. The defendant tendered a bill of exceptions, and judgment having been perfected on the verdict and affirmed on an appeal to the general term of the superior court, he appealed to this court. J. Van Burеn, for the appellant. A. L. Pinney, for the respondent. [MAJORITY — Edwards, J.] Edwards, J. It was proved upon the trial that the plaintiff’s daughter, at the time of her seduction, was in the defendant’s service, and it did not appear that there was animus revertendi, or that she, in fact, returned to her father’s house until after her confinement. Upon this state of facts it was contended upon the part of the defendant that, as no expense or actual loss of service on the part of the plaintiff was proved, he should be nonsuited, and a motion was made to that effect, which was overruled. In the case of Dean v. Peel, (5 East, 45,) the plaintiff’s daughter, at the time of tier seduction, was under age, but was living in the family of another person, in the capacity of a. housekeeper, with no intention at the time of her seduction of returning to her father’s house, although she did return there while she was under age, in consequence of her seduction, and was maintained by her father. Upon this state of facts it was held, that as the daughter was actually in the service of another person than her father, and as there was no animus revertendi, the action could not be maintained. The rule thus laid down has been since followed in the English courts. (Blaymire v. Haley, 6 Mees. & W. 55 ; Harris v. Butler, 2 id. 539 ; Grinnell v. Wells, 7 Man. & Gran. 1033.) In a few years after the decision in Dean v. Peel a somewhat similar case arose in this state, in which it appeared that the plaintiff’s daughter, who was under age, with the consent of her father, went to live with her uncle, for whom she worked when she pleased, and he agreed to pay her for her work; but there was no agreement that she should continue to live in his house for any fixed time. While in her uncle’s house she was seduced, and got with child. Immediately afterwards she returned to her father’s house, where she was maintained, and the expense of her lying in was paid by him. Upon this state of facts it was held, contrary to the case above cited, that the action could be maintained. In delivering the opinion of the court, Ch. J. Spencer said, “ the case of Dean v. Peel is against the action. In the present case the father had made no contract binding out his daughter, and the relation of master and servant did exist from the legal control he had over her services; and although she had no intention of returning, that did not terminate the relation, because her volition could not affect his rights. She was his servant de jure, though not de facto, at the time of the injury; and being his servant de jure, the defendant has done an act which has deprived the father of the daughter’s services, and which he might have exacted, but' for that injury.” (Martin v. Payne, 9 John. 387.) This decision was afterwards approved of in Nickleson v. Stryker, (10 John. 115.) In the case of Clark v. Fitch, (2 Wend. 459,) it was proved upon the trial that the plaintiff told his daughter that she might remain at home, or. go out to service, as she pleased, but, if she left his house, she must take care of herself, and he relinquished all claim to her wages and services. It was contended that there was a distinction between this case and that of Martin v. Payne, on the ground, 1. That the father had given his daughter her time absolutely; 2. That he had in fact incurred no expense; but it was held that this made no difference, and that the personal rights of the father over the child were not relinquished. . In the recent case of Bartley v. Richtmeyer, (4 Coms. 38,) Bronson, Ch. J., in giving the opinion of the court, says, that “.our cases hold that the relation of master and servant may exist for the purposes of this action, although the daughter was in the service of a third person at the time of her seduction, provided the case be such that the father then had a legal right to her services, and might have commanded them at pleasure.” But it was there held that the step-father had no such right, and consequently could not maintain the action. In Pennsylvania a similar rule has been adopted* (Hornketh v. Barr, 8 Serg. & R. 36; 6 id. 177. See also Mercer v. Walmsley, 5 Har. & John. 27.) And Greenleaf, in bis treatise on evidence, lays it down as the established American rule. (2 Greenl. Ev. § 576.) Whether it be more or less consistent with principle and policy than the English rule, it is now too late to inquire. It is too well established by authority. The case of Dain v. Wycoff, (3 Selden, 191,) was cited on the part of the defendant; but it will be seen, by reference to the opinion delivered in that case that it was decided upon the very distinction which has been laid down in the adjudications referred to. In that case the plaintiff’s daughter was bound out to service to another, and the plaintiff had no right to her services. The judgment should be affirmed. All the judges, except Rugóles, who did not hear the argument and took no part in the decision, concurred. Judgment affirmed.