Lamb v. Taylor , 67 Md. 85 ( 1887 )

Stone, J.,

delivered the opinion of the Court.

This was an action brought hy the plaintiff, Taylor, against the' defendant, Lamb, for the seduction of his daughter Rachel. The declaration is in the usual form, alleging loss of service, &c.

The evidence shows that the daughter was over twenty-one years of age; that she was living and always had lived with her father and mother, but from the age of fourteen had been working during the day in the cotton mills at Woodberry, returning to the house of her father at night; that she received her own wages, and out of them clothed herself and paid her board to her mother, and sometimes assisted her mother in paying her rent;v that the family consisted of the plaintiff and his wife and two daughters; that his daughter gave birth to a child at home, and was kept there about two months, and the doctor who attended her in her confinement, had charged' the hill to the plaintiff, which he had not paid. It was further proved by the daughter that she was seduced at home and that when not working in the mill her father had no control over her, and that whatever service she rendered was entirely voluntary. The evidence relating to the service is as follows: The plaintiff says:

“ That the said Rachel after returning from the mill in the evening, would assist her mother in the work about the house, and when her mother was taken sick she made up her bed for her.”

The daughter herself says; “ In the morning bfefore going to wo'rk at the mill, and in the evening after returning, she would assist her mother in her work about the house, and when her mother was taken sick she made up her bed for her.” This is the evidence as to the services of the daughter.

It is well said by a learned author, (Sutherland on Damages,) that slight evidence is sufficient to establish the relation of master and servant, and that the allegation and proof on that point is almost an unmeaning formula — an obeisance to a shadow o.f the past — to reach the actual grievance. So in the case of Mercer vs. Walmsley, 5 Harr. & J., 27, the Court said, “any slight service will he sufficient to raise the inference of fact that she was his servant.”

So in Keller vs. Donelly, 5 Md., 218, the Court said, “ the slightest evidence will suffice to prove the relation of master and servant.”

■The evidence of the service rendered so as to establish the merely technical relation of master and servant, is certainly in this case sufficient. According to her testimony she daily did some of the ordinary woman’s work about the house. There are many cases to be found where the action has been sustained where the evidence of the service was much less than we find in this record.

Nor does it matter that the daughter was over twenty-one years of age. If the daughter is living with her father rendering service, that connection is sufficient although she is over twenty-one years. Mercer vs. Walmsley, 5 Harr. & J., 27.

It has been settled by this case, and many others both in England and this country, that a father may maintain an action for the seduction of an adult daughter provided she is living with him, and rendering him any service, however slight. This law we do not understand to he questioned; but it is insisted that these services must not he voluntary, and that the fact that the daughter was in service elsewhere, will defeat the action.

But the services of an adult daughter to the father must he voluntary, as he has no legal right to require them after her majority. It is immaterial whether the services so rendered by the child are paid for or not, or, whether any special contract existed. Lipe vs. Eisenlerd, 33 N. Y., 229; Badyley vs. Decker, 44 Barbour, 577.

The other question argued by the appellant, that because the daughter in this case was engaged in the cotton mills, and paid her board at home, the plaintiff could not recover, is not tenable upon authority.

It was said in Mercer vs. Walmsley above qúoted, that where the daughter is over twenty-one years and' living with her father, any slight act of service is sufficient to establish the relation of master and servant. In the common acceptation of the term, the place where the daughter hoards and lodges, is the place where she is said to live. She may work out by the day, but where she eats and sleeps is her home, and there she lives; more especially where that place is her father’s house which has always furnished her with shelter. But ample authority is not wanting on that point.

The case of Rist vs. Faup, 4 Best & S., was this: The daughter lived in her father’s family, and was always at home from six o’clock in the evening until seven o’clock in the morning, and while there assisted in the house-work. That from seven o’clock in the morning to six in the evening she was in the service of the defendant as a laborer on his farm.. Held by the Court unanimously that there was sufficient evidence to go to the jury. .

The case of Badgley vs. Decker, 44 Barbour, 577, was this: The mother kept a hoarding house, and the daughter who was over twenty-one years of age kept a milliner’s shop in her own name, hut lived with her mother and helped her to do the work about the house; and it was held that the mother could recover.

So in the case of Villepique vs. Shular, 3 Strobhart, 462, the daughter, over twenty-one, owned the house and furniture in which she and her mother lived, hut she performed services for the mother. Held,'that the mother was entitled to recover.

In this last case the Court said:

“ That the daughter was owner of the establishment may serve to show her merit and her mother’s destitution, hut did not render the injury more tolerable to the mother.”

So in the case before us, the fact that the daughter paid her hoard and sometimes aided in paying the rent, shows that she was rendering a service to the family more important and commendable than the mere formal averment of the loss of service required in the declaration.

From the cases above cited, we are of opinion that the Court below committed no error in the ruling on the first hill of exceptions.

The second exception contains a prayer of the defendant, which was refused, and a prayer of the plaintiff, which was granted. We do not understand the appellant to make any serious contest about his second prayer which the Count properly refused, bút he insists that the prayer of the plaintiff contained in that exception, should not have been granted. This prayer of the plaintiff so granted, instructed the jury that it was competent for them to find such damage for the plaintiff as they might deem right and proper under all the evidence in the cause, provided they found the facts as stated in the plaintiff’s first prayer.

The reason assigned why this prayer should not have been granted, is, that, the jury might, under it, have taken into consideration, the expense of supporting the child, or damage for the breach of a promise to marry, as something was said in the evidence about the defendant having been required to give bond for the support of the child, and a breach of promise to marry, was proved by the plaintiff.

If, in a case of this sort, only legal testimony is before the jury, the instruction is clearly correct. But a prayer cannot properly be made to perform the office of an objection to illegal testimony. If any of the testimony, offered by the plaintiff was not legal testimony in the cause, it was the duty of the defendant'to object to its admissibility, at the time it was offered. When the objection is to the evidence, if it is known or apparent, it must be taken before, and not after, it has gone to the jury. If unaware of the objection to the admissibility of such evidence at the time of its offer, he must raise his objection within a reasonable time thereafter. It is too late after the prayers have been granted by the Court, based upon the evidence, or the argument before the jury has coinmenc'ed. Dent vs. Hancock, 5 Gill, 120; Davis vs. Patton, 19 Md., 120.

No such objection having been made in the Court below, this Gourt, even if it were to concede that any of the evidence was inadmissible, (which we by no means do,) could not remedy the error.

(Decided. 16th March, 1887.)

■ It was very ingeniously argued by the counsel for the appellant, that although the Court could not now decide the question of admissibility, the Court had fhe right to examine and see if it, or some of it, might not have improperly affected the verdict.

But this is not so. If the evidence is in the case, it must be considered and allowed its full force. Gibbs vs. Gale, 7 Md., 76.

Perceiving no error in the ruling of the Court below, on the second exception, the judgment must be affirmed.

Judgment affirmed.