5 plaintiff and the person seduced,' a brother,' an aunt, and an adoptive father. Whether a married woman living with her child apart from her husband, but not judicially separated, could maintain the action is doubtful. But the right to bring an action of this sort does not pass to the trustee of a master who has become bankrupt, as the trustee would have no right to make a profit of a man's wounded feelings. It is not necessary that the daughter should be under age; and the real question is whether or not she has been emancipated from her father's control; consequently, where a married daughter was living with her father, and performing various acts of service for him, the father was held entitled to bring the action on the establishment of the relationship of master and servant between him and his daughter, and that the defendant as a wrong-doer could not set up the right of her husband to the services of the plaintiff's daughter; on the contrary, if the plaintiff's unmarried infant daughter be in the service of another at the time of her seduction, the action will not lie. The following cases will show the circumstances under which this action may be sustained, and when it will fail, and that the relationship of master and servant and consequent loss of services on the part of the former are absolutely necessary to its successful maintenance. 9 8 successful. Where the person seduced resides at the plaintiff's home, no When action proof of actual service need be given if the plaintiff has the right to demand her services; very slight evidence of such services is requisite, such as milking cows,10 making tea," and the like; and this equally for a niece as for a daughter. The person seduced need not be at the beck and call of the plaintiff, as where the plaintiff's daughter lived with her brother, but went every day to her father's house to do all the household work; or where she resided some distance off, but acted as mistress of a household belonging to her father; or was temporarily engaged in service,15 or only performed services for him after her day's work was over." The action has also been maintained where she had left her situation, and was seduced on the way home to her father's house," for a fresh entering into her father's service on her leaving her 316. 1 Fores v. Wilson (ubi sup.). 14 3 Edmondson v. Machell, 2 T. R. 4. 8 Maunder v. Venn, M. & M. 323. 13 2 Howard v. Crowther, 8 M. & W. 601. 16 and see O'Reilly v. Glavey, 32 L. R. Ir. Manvell v. Thomson, 2 C. & P. 303. Action unsuccessful. to return to situation was assumed.' Where the father's control over the services of his daughter is put an end to by the wrongful act of the defendant, the defendant will not be allowed to avail himself of his own wrong, but the service will be deemed to be continued through the tortious interruption.2 6 5 This action cannot be maintained where there has been only seduction, and no pregnancy and sickness causing loss of service,3 for some proof of loss of service is necessary, or where the plaintiff has connived at his daughter's unchastity, or where the person seduced is in the service of another, and she is seduced by her own master, where he has not hired her for purposes of Mere intention seduction, whether intending to return to plaintiff's on the father's house termination of the services or not, even though the seduction during her temporary absence from work took place under her parent's roof, or where the relation of master and servant is contracted after the seduction, for the loss of service cannot then be made the foundation of the action." Where the daughter seduced is the real head of the house, this action is not maintainable by her father.12 immaterial. Rights of parents and 10 For the evidence to be adduced in aggravation of damages because of the heartless conduct of the defendant, or in mitigation. because of the conduct of the person seduced, see Addison on Torts, 13 and Smith's Master and Servant." As a necessary branch of this subject, the right of the parents children under to recover damages for injuries causing the death of children, and Lord Campbell's Act. the corresponding rights of children to recover damages for injuries causing the death of their parents, will next be discussed. It was and is a rule of law, that if the injuries wrongfully inflicted upon a servant cause his immediate death, the master has no right of action; thus, if a father was supported by his son, who was killed on the spot by the negligent and wrongful act of some third person, his father could not maintain an action against the wrong-doer; though if the son lingered, however short a time, the father might bring his action under Lord 1 See Gladney v. Murphy, 26 L. R. Ir. 651. 15 2 Speight v. Oliviera, 2 Stark. 493; Long v. Keightley, 11 Ir. C. L. 221; see also Evans v. Walton, L. R. 2 C. P. 615. 4 Grinnell v. Wells, 7 M. & G. 1033. 8 Blaymire v. Haley, 6 M. & W. 55; 3 Saterthwaite v. Duerst, 5 East, 47 n. 5 Reddie v. Scoolt, 1 Peake, 316. Butler, 2 M. & W. 539; Thompson v. Ross, 7 Gladney v. Murphy (ubi sup.). Gladney v. Murphy (ubi sup.). 10 Hedges v. Tagg, L. R. 7 Ex. 283. 11 Davies v. Williams, 10 Q. B. 728. 12 Manley v. Field, 7 C. B. N. S. 96. 15 Higgins v. Butcher, Yelv. 89; Baker v. Bolton, 1 Camp. 493; Osborn v. Gillett, L. R. 8 Ex. 88. In this case Bramwell, B., dissented from the majority of the Court and held that the action would lie. His Lordship said that the rule of law as set out above was derived from a mistaken apprehension of the maxim, "actio personalis moritur cum persona," and that the "death of the action" referred to the incapacity of the deceased to bring the action, which died with him, but did not refer to the right Campbell's Act, 1846.' The preamble of that statute says that 4 sa mère The action must be brought within a year from the death," whether by the personal representatives, or the persons beneficially interested. A child en ventre sa mère, but not a bastard,' is Child en ventre within the remedy of Lord Campbell's Act. Contributory negli- within the Act. gence on the part of the deceased will be a bar to the representatives of the deceased maintaining the action. There must be some proof of damage or the action will fail," but a reasonable expectation of pecuniary advantage may be taken into consideration by the jury. It has been held in the Irish Exchequer Division that where the value of the services of the deceased was greater than the cost of the support of the deceased, the death would not entitle the relative who complained of the death to compensation; but it has been also held that where it can be shown that the services of the deceased had a distinct pecuniary value, and were of more value than the cost of the support of the deceased, though no actual evidence is given of the exact amount of the value of the services or of the keep of the deceased, there is a case to go to the jury for pecuniary compensation." which a master had to bring an action for loss of services occasioned by the injury or death of his servant. In 1881 his Lordship was of the same opinion: see Solicitors' Journal, Aug. 27, 1881, p. 813. Some of the American Courts support the view taken by Lord Bramwell. 9 & 10 Vict. c. 93. 1 2 Sykes v. North Eastern Railway Co., 44 L. J. C. P. 191. 3 9 & 10 Vict. c. 93, s. 3; 27 & 28 Vict. c. 95, 8. I. 4 The George and Richard, L. R. 3 A. & E. 466. 5 Dickinson v. North-Eastern Railway Co., 33 L. J. Ex. 91. Dynen v. Leach, 26 L. J. Ex. 221; Waite v. North-Eastern Railway Co., 28 7 Duckworth v. Johnson, 29 L. J. Ex. 25. L. J. Q. B. 258. 8 Pym v. Great Northern Railway Co., 31 L. J. Q. B. 249. 9 Hull v. Great Northern Railway Co. (Ireland), 26 L. R. Ir. 289. The Court in this case disapproved of Duckworth v. Johnson (ubi sup.). 10 Wolfe v. Great Northern Railway Co. (Ireland), 26 L. R. Ir. 548. In this case the Court of Appeal approved of Duckworth v. Johnson (ubi sup.), and held that the onus of proof required in the case of Hull v. Great Northern Railway Co. (ubi sup.), was satisfied, and the onus of disproof was shifted to the defendant company. Action by children. Declaration of title. Liability of parent for child's torts committed with his consent and knowledge. Damages for "wounded feelings," or for funeral expenses, cannot be given. This action can be brought by the child for injuries resulting in the death of the "parent"; and the principles which have been laid down above as regulating the bringing and maintaining of actions in the case of parents are the same as those in the case of children. Where executors receive money by way of compensation for injuries causing the death of their testator without bringing an action under this Act, but proceed in the Chancery Division for a declaration as to the persons entitled, the Court can distribute it among the relatives of the deceased who are entitled to it as having suffered damage by the death of their relative, as though it were a jury under this Act.* (2) Liability of Parent for Torts done by Child.-The liability of a parent for the torts of his children is quite different to that which the law imposed (and does to a partial extent now impose) upon the husband for the torts of his wife, whether committed before or during marriage; for marriage by the common law operated as a conveyance of the wife's property to the husband, and the only redress the injured party had by way of pecuniary compensation was to sue the husband as well as the wife. But the father's pecuniary interest in his unemancipated children is limited to the wages they earn in service. If the father authorized the tort, or clearly ratified its commission, he would be liable; or if he employed his child in a particular employment, and in the course and scope of that employment the child committed a tort, no doubt the principle which renders a master liable for the tortious acts of his servant committed within the scope of his employment and limits of his authority would be applied, and the father held liable for the tort. But there is a dictum to the effect that "the tendency of juries, where persons under age have incurred debts or committed wrongs, to make their relatives pay, should be checked by the Courts," on the ground that "no man ought, as a general rule, to be responsible for acts not his own." On the whole, it may be stated as a rule that a father is not liable in damages for the torts of his child committed without his knowledge, consent, or sanction, and not in the course of his employment of the child." 1 Blake v. Midland Railway Co., 21 L. J. Q. B. 233 2 Dalton v. South-Eastern Railway Co., 27 L. J. Č. P. 227; see Osborn v. Gillett, L. R. 8 Ex. 88. + Bulmer v. Bulmer, 25 Ch. D. 409. 6 Per Willes, J., in Moon v. Towers, 8 C. B. N. S. 611, 616. CHAPTER VI. ILLEGITIMATE CHILDREN. WHO IS A BASTARD? . PAGE 566 BASTARD WITHIN THE PROHIBITED DEGREES OF KINSHIP 566 568 DISABILITIES: BASTARD CANNOT INHERIT, OR SUCCEED AB NOT WITHIN LORD CAMPBELL'S ACT. CANNOT HAVE A TESTAMENTARY GUARDIAN APPOINTED 569 571 571 571 572 DEFECTIVE POWERS NOT SUPPLIED IN HIS FAVOUR CUSTODY OF BASTARD CHILD: PRIMARY RIGHT OF CUSTODY IN MOTHER PROVIDENT NOMINATIONS AND SMALL INTESTACIES ACT, 1883 NO LIABILITY INDEPENDENTLY OF STATUTORY ORDER. AGREEMENT WHERE A CHILD IS TO BE SUPPORTED VALID BASTARD'S SETTLEMENT THAT OF MOTHER HOW FATHER'S LIABILITY ENFORCED BY MOTHER BY ORDER RIGHT OF APPEAL OF FATHER AGAINST ORDER 573 575 MAINTAIN 575 576 |