to bring a suit when arrived at majority, free from parental control and under counter influences, against his own parent, either for services accruing during infancy, or to recover damages for some stale injury, real or imagined, referable to that period, appears quite contrary to good policy. The Courts should discourage such litigation, and so upon corresponding grounds the parent's suit, as to cause of action referable to the period and relation of tender childhood."

CHAPTER V.

RIGHTS AND LIABILITIES OF PARENTS IN RESPECT

OF TORTS DONE TO OR BY THE CHILD.

RIGHT OF PARENT TO MAINTAIN ACTION FOR TORT DONE
TO CHILD.

PAGE

557

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RIGHTS OF PARENTS AND CHILDREN UNDER LORD CAMPBELL'S

Аст .
LIABILITY OF PARENT FOR CHILD'S TORTS COMMITTED WITH
HIS CONSENT AND KNOWLEDGE

THE subject-matter of this chapter will be divided under two heads, namely, how far a parent may maintain an action for torts done to his children; and how far he may be rendered liable for torts committed by his children.

to maintain

done to child.

(1) The right of the parent to maintain an action for a tort Right of parent done to his child is based upon the relation or quasi-relation of action for tort master and servant. A child who is under age or adult may maintain an action for damages in respect of a tort or injury committed upon him;' but under certain circumstances the parent may also claim indemnity for the injury, whether it be an assault and battery, injury by negligence, or seduction of child from home, or the like. A parent has a right of action for an Loss of injury done to his child by the wrongful act of another, if the parent gist of child is old enough to be capable of rendering him some act of action. service, and can be treated in law as his servant; in other words, a parent as such has no remedy for an injury done to his child, and cannot recover for it, unless the latter can be treated

1 Jay v. Whitfield, cited 3 B. & A. 308.

2 Add. Torts, 531; Hall v. Hollander, 4 B. & C. 660: Grinnell v. Wells, 7 M. & G. 1033.

services by

Enticement

and harbour

in law as his servant. Thus, where an infant two and a half years old was injured by the defendant's carriage, his father was nonsuited in an action for damages in respect of the injury, on the ground that the loss of service being the gist of the action, and the child being incapable of rendering any service because of his tender age, the action could not be maintained.' The parent must allege in his action that it is the tortious act of the defendant per quod servitium amisit," &c., but in a case of an assault or injury of this nature no evidence of service is necessary beyond that which the law will imply as between parent and child.a The incidental expenses incurred in consequence of the injury can be recovered; but where the loss of service by the parent cannot be sustained, it is very doubtful whether the parent could recover for such expenses, though under an obligation to incur them.3

The parent may also sustain an action against a person for ing of children, Wrongfully depriving him of his child's services, either by enticing him away, or by improperly harbouring it after it has left its home. Enticement is where the child is removed from the parental control without force; abduction, on the contrary, necessitates the employment of some force. Here again the right of action depends upon the relation of master and servant. If the parent has relinquished his right to the child's services, he cannot maintain such action, but as long as the child remains under his roof, his right to do so exists. Thus, an action will lie for enticing away the plaintiff's daughter, though there be no allegation that the defendant debauched her, or that there was any binding contract of service between her and the plaintiff." And where the plaintiff's daughter, nineteen years old, resided with him as a member of his family, and assisted him in his business, by means of a fictitious letter of invitation dictated by the defendant, procured her mother's consent to her quitting her home for a few days, and left, and the defendant took her to a lodging-house, where he cohabited with her for nine days, after which she returned home, it was held that there was a sufficient continuing relation of master and servant de facto, and sufficient evidence of a wrongful enticing away of the daughter by the defendant, to entitle the plaintiff to maintain the action. So, too, where a person hires a girl as a servant, and withdraws her from her father's service for the very purpose of getting possession of her person and seducing her, this fraudulently concocted 1 Hall v. Hollander, 4 B. & C. 600. 2 Evans v. Walton, L. R. 2 C. P. 615. See Grinnell v. Wells, 7 M. & G. 1033; Hall v. Hollander (ubi sup.). In America there is a tendency to be more liberal towards the parent. Sch. Dom. Rel. s. 258. 4 Evans v. Walton (ubi sup.). 5 Ibid.

service does not put an end to the relation of master and servant previously subsisting between the daughter and her father, who may maintain an action for the seduction.1 As this action is founded on the loss of services, the right of the parent to bring it does not seem limited to the infancy of the child. Where the girl enticed away or abducted for immoral purposes is under eighteen, the guilty party may be criminally punished."

"To afford shelter is one thing; to encourage filial disobedience Harbouring another. The mere employment of a runaway child does not a child. amount to enticement. But where it appears that the defendant, knowing that the son had absconded from his father, boarded him in his family and allowed him to work on his farm as he pleased, doing this with the intention of aiding or encouraging, or with the knowledge that it aids and encourages the son to keep away from the father, he is liable to this action." If the defendant had derived any benefit from the labour and services of the child, the parent would be entitled to recover the amount. The right to bring such actions belongs to the mother on the death of the father. It would also belong to her if on divorce or judicial separation she had the care and custody of her child; but there does not appear to be any authority one way or the other for her being able to maintain the action when she voluntarily lives apart from her husband, and is not judicially separated from him.

seduction of

daughter.

The next point to be considered is the right of the parent to Action for maintain an action for damages for the loss of services consequent upon the illness of a daughter who has been seduced and thereby become pregnant. This right of action is so clearly based (though fictitiously) upon the relations of master and servant, that to discuss it under the head of master and servant would not only have been possible, but perhaps more logical than in this present chapter. In a treatise on the law of master and servant it must of course find a place; but inasmuch as a large majority of the actions are brought by parents in respect of the seduction of their daughters, and not by masters in the popular sense of the word for the seduction of their servants, it has been thought possible, without an excessive violation of the logical treatment of the subject, to discuss this action when dealing with the law of parent and child.

1 Speight v. Oliviera, 2 Stark. 495.

2 See Harper v. Luffkin, 7 B. & C. 387. 3 48 & 49 Vict. c. 69, s. 7. See Reg. v. Prince, L. R. 2 C. C. R. 154. 4 Sch. Dom. Rei. s. 260.

5 Foster v. Stewart, 3 M. & S. 201. In America it is the law that the father may sue on the basis of a contract for his absconding son's wages, but is put to his election; and the suit in tort against the employer, for unlawfully enticing, or harbouring his minor child, precludes the action of assumpsit for wages earned. Thompson v. Howard, 31 Mich. 309 (Amer.).

Relation of

vant necessary.

The basis of this action is the relationship of master and servant, master and ser- with the loss of the services of the daughter consequent upon the wrongful act of the defendant; and, as will be seen, the services rendered by the daughter may not only be very slight, but even constructive, that is, implied by law rather than evidenced by facts.1 The daughter herself has no remedy against her seducer, nor her parent, if the seduction does not result in pregnancy and sickness, because, as it has been said, her own incontinence shall not be the means of obtaining a pecuniary compensation for any loss she may have sustained through it.3 But it was found necessary to punish seducers, and this action, whether founded on trespass or on the case, was devised for their punishment.

Damages for injured feelings may be given in an

action for seduction.

Services need not be valu

tive sufficient.

There is an important difference between the action brought by the parent or master for an assault and battery, &c., on his child or servant and this action, for in the former no compensation is to be given for wounded feelings, whereas in this action what are known as "sentimental damages" may be given. This is an instance of the bad logic of the action as now founded. Tindal, C.J., in Grinnell v. Wells, thus states the law: "As the father is only liable under the statute (43 Eliz. c. 2, s. 6) to maintain his daughter where he is of sufficient ability so to do, and as the damages recoverable by the father when he brings the action are, confessedly, not limited to the actual expenditure of his money, but may be given according to the circumstances of aggravation in the particular case, the right of action to recover compensation would be confined to persons of ability to maintain the daughter, and would be denied to the poorer orders of the community-a result that would be most unreasonable."*

Provided the relation of master and servant can be proved to able, construc. have existed between the person seeking compensation and the person debauched, the services rendered by the latter to the former need not be real valuable services, but constructive services would be sufficient; and it is only necessary that the parent or master should have the legal right to an interest in them. Thus, others besides the father may maintain this action; a stranger in blood where the relation of master and servant exists between

Who may maintain action.

1 Fores v. Wilson, 1 Peake, 77; Grinnell v. Wells, 7 M. & G. 1033; Eager v. Grimwood, I Exch. 61; Manley v. Field, 7 C. B. N. S. 96; Terry v. Hutchinson, L. R. 3 Q. B. 599. 2 Eager v. Grimwood (ubi sup.).

3 Saterthwaite v. Duerst, 5 East, 47 n.

4 7 M. & G. 1033, 1043. But, as the learned reporter notes: "It may be observed, however, that the quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leave without redress the poor man, whose child.... is sent unprotected to earn her bread amongst strangers."

5 See Evans v. Walton, L. R. 2 C. P.615. In America the rule as to constructive service is carried even further than over here. Sch. Dom. Rel. s. 261.