Schmit v. Mitchell ( 1894 )

Canty, J.

The defendant demurred to the complaint on the ground that it did not state a cause of action. This is an appeal from an order overruling the demurrer.

The complaint alleges that plaintiff is a resident of Stearns county, and the head of a family; that his daughter, Maggie, is of the age of thirty years, and is an unmarried woman; that in July, 1891, she, being in the employ of defendant as a domestic, was by him seduced; that thereby plaintiff: has been disgraced and damaged in the sum of $25,000.

The action is brought under 1878 G-. S. ch. 66, § 33, which reads as follows: “Sec. 33. A father, or in case of his death, or desertion of his family, the mother, may prosecute as plaintiff for seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward is not living with, or in the service of the plaintiff at the time of the seduction, or afterward, and there Is no loss of service.”

Section 34 reads as follows: “Sec. 34. A father, or in case of his death, or desertion of his family, the mother, may maintain an action for the injury of the child, and the guardian for the injury of the ward.”

This court, in Gardner v. Kellogg, 23 Minn. 463, interpreted “child” in section 34 as meaning a “minor child,” and it is contended by appellant’s counsel that “daughter” in section 33 means the same thing as “child” in section 34, and that, as plaintiff’s daughter was not a minor, he cannot maintain this action. We cannot agree with counsel. By section 34 it was intended to permit the father in certain cases to bring a suit in his own name for the benefit of his child, not for his own benefit. If the child was of age, there was no necessity for this, but clearly the child should then bring the action in her own name. But the action thus specified in section 33 is not intended for the benefit of the daughter, but can be maintained by the father in his own right, and for his own benefit. If he can only maintain it in the case of a minor daughter, his rights are not as extensive under the statute as they were at common law, because at common law he could maintain an action for damages for the seduction of a daughter of full age if he could show loss of service, and, if she actually resided in his family as a member thereof, loss of service was by most courts conclusively presumed. We are of the opinion that the statute intended to enlarge, not to restrict, the rights of the father, and that it applies to the case of an adult as well as to that of a minor daughter.

On the other hand, it is contended by respondent that section 33 applies to the case of any daughter who is not married and living-in her husband’s family; but he concedes that her being married* is only an implied limitation which he must spell into the statute, and claims that, taken literally, the statute covers the case of every daughter, married or single, old or young. It seems to us that the statute was not intended to apply to daughters who were for no purpose members of the father's family.

We find on examination that section 33 originated perhaps in California, and has been adopted by several other states as well as this. See 21 Am. & Eng. Ene. Law, p. 1024, note 1. But we have not been able to find any decision under the statute in any of these states in point here. Franklin v. McCorkle, 16 Lea, 609, was the case of a minor child, and the court held that loss of service would be presumed in such a case at common law, even if the statute did not dispense with such proof If loss of service is presumed in the case of a minor, why should not membership in her father’s family be, under like circumstances, presumed? But we are of the opinion that the statute wrns not intended to apply to cases where the daughter is not a minor, and is not in any respect, “or for any purpose, a member of the father’s family; that the intent of the statute is that the father may maintain the action without proving loss of service, if the daughter is in fact a member of his family, even though she is employed or lives elsewhere nearly all of the time, and is so employed or so resides elsewhere at the time she is seduced.

Cooley, in his work on Torts (marg. p. 231), divides the cases at common law' into three classes: “First. Cases where the daughter actually resides in the household of the father, and loss of service is conclusively presumed. Second. If the daughter at the time w'as not actually a member of the father’s household, yet if she were not in the actual service of another, and the father had a right to recall her to his own service, he may maintain the action the same as if she actually had been recalled or had returned. Third. But if the daughter was actually in the service of another, no action could be maintained by the parent, because the conditions which support it did not then exist. In such a case, the person in whose employ she w'as for the time being might maintain the suit, unless he himself w'ere the w'rongdoer, in which case it could not be ■brought at all. To this last statement this exception is to be made: that if the defendant procured the woman to enter his service fraudulently, and for the purpose of withdrawing her from her family and seducing her, this is a wrong which precludes his claiming any rights or protection as master, and the parent may support any action as if the hiring had never taken place.” He then adds: “This statement of the law is sufficient to show some-of its absurdities, and to justify some recent statutory changes.” We are of the opinion that the main purpose of the statute was to meet such cases as these, especially those stated in the third subdivision.

There is a large class of unmarried females, both old and young, who are employed away from home as domestics, shop girls, clerks, school teachers, and in many other ways, who live temporarily at or convenient to the place of their employment, who have no permanent home except their father’s house, where they go but occasionally, except when they are sick or out of employment. It seems to us that the statute was intended mainly to cover such cases as these, where the father’s home is in fact the home of the daughter, even though most of her time is spent elsewhere, and in all such., cases proof of loss of service is not necessary.

Section 33 provides “the father, or in case of his death, or deser- , tion of his family, the mother,” may maintain the action. If the action cannot be maintained by the father where he has deserted his family, why should he maintain it when the daughter is for no purpose a member of the family? It seems to us that under such a statute it would be absurd to hold that the father could maintain an action for seduction of a daughter 50 or 60 years old, who had not been a member of his family for 30 or 40 years, whether she was married or single. The statute only applies so as to enable the head of the family to maintain an action for the seduction of a member.thereof.

The complaint in this case does not allege that the daughter, Maggie, is a member of plaintiff’s family, and for this reason we hold that it does not state a cause of action, and the order overruling the demurrer should be reversed. So ordered.

Gilfillan, C. J., absent on account of sickness; took no part.

(Opinion published 61N. "W. 140.)