Davidson v. Abbott

The opinion of the court was delivered by Redfield, J.

This is an action on the case for debauching the plaintiff’s servant and daughter, Helen Davidson. The daughter is thirty-one years of age, and the mother a widow. The exceptions state that the daughter Helen lived at home with her mother, and assisted her about the household work, and did errands for the family, and worked in the mill, or factory, most of the time since she was fifteen years of age, and paid in her wages for the support of the plaintiff’s family. The relation between the mother and daughter, (except such distinction as the law works) was the same before and since Helen’s majority. The mother managed the household, and used Helen’s wages in the support of the family. No contract between the two was proved, except such as may arise by implication. The court directed a verdict for the defendant, on the ground that the plaintiff could not maintain this action.

“ It is not necessary to prove an actual contract for service, but the relation of master and servant must subsist, at least in some degree, though a very slight degree will be sufficient; proof of the most trifling acts of service, such as milking the cows, or making tea for the plaintiff, will enable the plaintiff to maintain this action for debauching the daughter.” 3 Phil. Ev. 530-1. The same rule, substantially, is laid down in all the text-books upon this subject. Schoul. Dorn. Rel. 354-359; 2 Greenl. Ev. s. 572 et seq.; 1 Chit. Pl. 69, note ; 2 Chit. Pl. 558. In Bennett v. Al *573 cott, 2 T. R. 168, the father brought the suit, and the daughter debauched was thirty years of age, and it was proved that she occasionally did acts of service. Butler, J., says : “In actions of this kind the slightest evidence [of service] is sufficient; even milking cows. Here instances of actual service were proved, and therefore it is immaterial whether the daughter were of age or not. Neither is it material whether the servant be or be not hired for a year; or whether she have any wages; it being sufficient that she be a servant de facto.” In Manvell v. Thomson, 2 C. & P. 303, the evidence of service was very slight. The niece was living in the family of her uncle, and occasionally assisted his children. Lord Denman, counsel for the defense, contended that there was no sufficient evidence that the niece at the time of the wrong complained of was a- servant. But Abbott, C. J., said: “ The smallest degree of service will do. It seems there was no servant kept, and it is reasonable to conclude that all the members in the family assisted, in turn, in the performance of household work.” The case of Moran v. Dawes, 4 Cow. 412 , is quite like this case. The daughter was of age and lived with her mother. They had a common table and the mother was the mistress of the establishment, and the daughter, sister, and brother, out of their earnings, supported the establishment, and the daughter assisted her mother somewhat in the household affairs. The court say : “ The relation of mistress and servant between the plaintiff and her daughter was sufficiently made out at the trial. The slightest acts of service are sufficient, as merely milking cows,” referring to Bennett v. Alcott, supra. In this case the daughter had all her life been defacto in the service of her mother; she assisted the mother in the household affairs and contributed her wages at the mill to the support of the establishment of which her mother was the mistress. In short, she labored for and served in fact her mother after she became of age, as before ; and had never been emancipated from the mother’s care, service, and control.

The action in form is to recover damage for loss of service ; but it has become well settled for a century in England and this country, that the loss of service is slight and nominal in most cases, and the recovery is had essentially for wounded feelings, *574 dishonor, and disgrace. In Bartley v. Richtmyer, 4 Comst. 38, Mr. Justice Bronson attacks vigorously the latitude which has obtained in this action. He says : “ It is now settled that the father may recover exemplary damages for the seduction of a daughter ; and very large, not to say outrageous verdicts have become the fashion of the times ”; and he says that “ when the daughter is of full age the father cannot recover for such cause, without showing that the relation of master and servant existed at the time of injury.” And “ there must have been the actual or constructive relation of master and servant ”, such “ that the father would have the right to command the service of the daughter.” But this able judge does not deny the well-settled doctrine that trifling acts of service will enable the parent to sustain the action ; and if such relation exists de facto, it is sufficient. This is one of the very few cases that expresses regret that this rule has become well established.

Judgment reversed,, and cause remanded.