Blanchard v. Ilsley , 120 Mass. 487 ( 1876 )

Colt, J.

Actual loss of service by the wrongful act of the defendant is the technical foundation of the plaintiff’s action. Such loss of service will be presumed in favor of the father who has not parted with his right, where the daughter is under age and resides with Mm ; Hewitt v. Prime, 21 Wend. 79 ; and, according to the more recent American cases, where he retains the legal right to claim her service, although she resides and is temporarily employed elsewhere. It results from the legal obligation imposed upon him to provide for her support and education, which gives him the right to the profits of her labor. Kennedy v. Shea, 110 Mass. 147, and cases cited. Furman v. Van Sise, 56 N. Y. 435, 444. Emery v. Gowen, 4 Greenl. 33. Clinton v. York, 26 Maine, 167. Griffiths v. Teetgen, 15 C. B. 344. See also note to Martin v. Payne, in Bigelow Lead. Cas. Torts, 286. The father’s inability or failure to support his children does not alone deprive him of this right. Benson v. Remington, 2 Mass. 113.

In the case at bar, the evidence fails to justify a finding by the jury that the father had permanently or temporarily parted with his right to his daughter’s services, or that he had waived his right for any definite or indefinite period, by contract with the plaintiff, permission granted to the child, or otherwise. It fails to show a case of concurrent service, which, if it ever can exist, can exist only when it is the result of contract, without which an infant daughter cannot be the servant of two at the same time. Hedges v. Tagg, L. R. 7 Ex. 283, 285. There was nothing to show emancipation or intentional abandonment. The fact that he knew where she was living and the assistance she was rendering, “ and acquiesced, without saying anything by way of assent or dissent,” is not enough. The most that the evidence can be said to prove is that, upon an understanding between the plaintiff and the injured girl, who was a sister of his wife, the latter, with no agreement with her or with the father for the payment of wages, or for any definite period of service, assumed the care of the plaintiff’s household while the wife was disabled by sickness, and sustained that relation, without paying board, at the time of the alleged seduction. This does not establish the relation of master and servant, so as to give a right of action to the plaintiff, to the exclusion of, or concurrently with, the father.

The fact that the plaintiff was also the legally appointed guardian carries with it no right to the service of the ward, and no obligation to support her, except to the extent of the property belonging to her which came to his hands. Gen. Sts. c. 109, § 19. Exceptions overruled.