Badgley v. Decker

44 Barb. 577, 1865 N.Y. App. Div. LEXIS 116

• Court: New York Supreme Court
• Decided: November 21, 1865
• Status: Published

Opinion

Mason, J.

There was evidence in this case sufficient to go to the jury upon the question of the relation of master and servant, existing between the plaintiff and her daughter. The slightest degree of service has been holden sufficient to maintain the action, and to allow a recovery for the heaviest damages. (Reeve’s Dom. Rel. 292. Knight v. Wilcox, 15 Bart. 279.) The daughter lived with her mother, and was in the habit of assisting to some extent in doing the work in the family. It is not disputed but that she' performed various acts of service for her mother, the plaintiff, and quite sufficient to meet the requirements of the rule in this action.

The rule is still adhered to, with us, that loss of service is the legal gravamen of the action, (Bartley v. Rightmyer, 4 Comst. 38,) but to accommodate the action to cases where the daughter rendered no service, a presumed or a fictitious service is resorted to as the gravamen. (3 Burr. 1893. 2 D. & E. 166, 168. 7 Carr. & Payne, 528. 9 John. 389. 2 Wend. 459. 21 id. 79, 82.)

All the modern cases hold that the legal gravamen of the action is not the real gravamen, as is apparent when we come to consider the rule of damages recognized in the action; and judges have not unfrequently spoken of the action as resting upon a fiction. In Clark v. Fitch, (2 Wend. 459,) there was no proof of actual loss, and Martin v. Payne, (9 John. 387,) was decided upon the ground that none was necessary; and in Hewit v. Prime, (21 Wend. 79,) it was held that an action may be sustained by a father for the seduction of his daughter, without proving any actual loss of services. It is enough that the daughter be a minor residing with her father, and that he has a right to claim her services. The court of appeals, in the case of Bartley v. Bichtmyer, (4 Comst. 38,) still adhere to the doctrine that the legal gravamen of the action is the loss of services, and that to sustain the action there must be some loss of service. There is no necessity, where the daughter is of full age, to show a contract of service, when she is living with her parents. The presumption is she is a servant if she lives with father or mother. (Reeve’s Dom. Bel.) The real gravamen of the action is not the loss of service. That is a very small item in the measure of damages. The loss of service in many cases could not be considered any thing, in reality, and often when the least service is performed the highest damages are given. The real gravamen of the action is the mortification and disgrace of the family, and the wounded feelings of the plaintiff.

The next and by far the more difficult question in this case is, can the plaintiff, the mother of this daughter, sue alone, and maintain this action while her husband is living, assuming that the relation of master and servant actually existed at the time of the seduction ? At common law she certainly could not. It remains to be considered whether she can under our existing statutes. The plaintiff has for nine years and more lived separate and apart from her husband, and he absent from the state, having undoubtedly, from the evidence, abandoned his family altogether. The plaintiff .owns a house of her own and is engaged in the business of keeping a boarding house on her sole and separate account, as the statute permits her to do. The act of March 20, 1860, (Laws of 1860, chapter 90,) declares that the property, both real and personal, which any married woman now owns as her sole and separate property, that which comes to her by descent, devise, bequest, gift or grant, or that which she acquires by her trade, business, labor or services, carried on or pursued on her sole and separate account, &c. shall, notwithstanding her marriage, be and remain. her sole and separate property, and may be used, collected and invested in her own name, and shall not be subject to the interference or control of her husband or liable for his debts.

The second section provides that a married woman may bargain, sell, assign or transfer her separate personal property, and carry on trade or business, and perform any labor or service on her sole and separate account, and that the earnings of any married'woman from her trade, business, labor or services shall be her sole and separate property, and may be used and invested by her in her own name.

Section 7 of chapter 172 of the Laws of 1862, p. 344, declares that any married woman may, while married, sue or be sued in all matters having relation to her sole and separate property, &c. in the same manner as if she were sole. (Laws of 1862, p. 344, § 7.)

The question is presented, then, does the loss of service of the daughter in this case have relation to the plaintiff's sole and separate property ?

The second section of the act of March' 20, 1860, above cited, declares that the earnings from carrying on this business of keeping a boarding house shall be her sole and separate property. Now if the earnings resulting from keeping a boarding house are her sole and separate property, it is very difficult to say that the servants who are employed by her in carrying on that business have not a relation to her sole and separate property. Such an establishment can not be carried on without the assistance of servants, and when the law gives to a married woman the absolute right to carry it on, it should afford her protection—the common protection which the common law throws around one in such a position. It should give her an action against a wrongdoer who entices away her servant and deprives her of her services.

It should give her an action against one who beats and injures her servant, if there is a loss of services consequent thereon. It should give her an action against one Avho seduces and debauches her servant, if there is a loss of service shown. All of these acts directly affect her legitimate business, which the law allows her to carry on, and have a direct relation to the earnings and fruits of her business, and therefore indirectly, if not directly, have relation to her separate property.

It seems to me that as the statute grants to her the independent right to carry on any trade or business on her own account, the same as if she were a single woman, it carries with it by implication, as an incident—as necessary to the very protection of the right granted—these actions against wrongdoers who shall entice away, beat and injure or debauch her servant. And I am not able to perceive why it does not; and where the act directly tends to injuring her business, as the debauching of a servant does, I can not perceive why it has not some relation to her separate property, the earnings of that business.

It is the duty of courts to give this statute such a construction as will afford the protection of law to the rights clearly granted by the act.

It would be simply absurd to hold that under this statute a married woman who was carrying on business on her own account could not be sued by a servant to recover pay for his services; or that she could not sue the servant for a violation of his or her contract; much more a wrongdoer who should deprive her of the services of her servant. As the loss of services is the legal gravamen of this action for services, we must assume that she could not maintain any action for wrongful interference with her servants, if she can not maintain this. I am therefore led to the conclusion, without much doubt in regard to the matter, that the plaintiff can maintain this action. And I think that in estimating the damages it was legitimate and proper to take into the account the fact that the plaintiff is the mother, and that she was the head of her family, having a son and two daughters younger than the one seduced, residing in the family, and the consequent injury to the mother’s wounded feelings and the disgrace to the family; and that therefore the charge of the judge in regard to the damages, was correct. He certainly could not charge as requested by the defendant’s counsel, that the plaintiff was entitled to recover nothing except her actual damages. I know of no adjudged case where it has ever been so held. There were but three exceptions taken to the charge of the judge. The first is to that part of the charge which holds that the action is maintainable by the plaintiff without joining her husband; and this we have seen is not well taken. The second is to that part of the charge which holds that slight services of the daughter over twenty-one years of age are enough to sustain the action. This, as we have already shown, was not well taken. The third is to that part of the charge which allows the jury to take into consideration the injured feelings of the plaintiff. This distinct point was taken by exception to the judge’s charge in Knight v. Wilcox, (18 Barb. 212,) and the charge was sustained, after full argument before the general term in the 7th district. (See also Sedgwick on Damages, 542, 2d ed.; 4 Comst. 38.) The judge’s charge fairly covered the whole case, and he committed no error in refusing to charge the various requests of the defendant's counsel; and I advise that a new trial be denied.

Parker, P. J.

This is an action for the seduction of the plaintiff’s daughter. The plaintiff is, and was at the time of the seduction, a married woman, residing apart from her husband, who had deserted her, and keeping a boarding house on her own account. The daughter was at the time of the seduction, about twenty-five „years of age, and was carrying on the business of a dress maker, in a shop away from her. mother’s house, ostensibly on her own account, but living in the family of her mother, and performing occasional household services for her, though without any agreement between them, and her mother received the avails of her business.

At the trial the court was asked to nonsuit the plaintiff on two grounds: 1st. That the plaintiff, having a living husband, could not, in her own name, maintain the action. 2d. That the relation of master and servant did not exist between the plaintiff and her daughter, at the time of the seduction. The nonsuit was refused, and the jury gave a verdict in favor of the plaintiff, for $1000.

The judge submitted the question to the jury, whether the relation of master and servant existed, stating to them that “the daughter being upwards of twenty-one years of age, the bare fact that she lived with her mother, is not sufficient evidence that the relation of master and servant existed between them. There must be proof that she rendered some slight service in the family; but the slightest service that the daughter over twenty-one years of age might render is sufficient, prima facie, to constitute the relation of master and servant; and it is not necessary for the plaintiff to prove any particular agreement, to constitute it.” To this the defendant excepted.

It is well settled, that between parent and child, when the child is over twenty-one years of age, and lives with the parent, the relation of master and servant may be inferred from very slight service performed by the child, although there may be no express agreement between them. (2 Greenl. Ev. §§ 572-576. Bennett v. Allcott, 2 T. R. 166. Irvin v. Dearman, 11 East, 23. Moran v. Dawes, 4 Cowen, 412. Harper v. Luffkin, 1 Barn. & Cres. 387. Lipe v. Eisenlerd, 32 N. Y. Rep. 229.) The plaintiff testified that her daughter helped her about the house, and worked at all the household business ; that she worked as her other children did; that she went into the room which she occupied as a shop, together with her minor sister, by the plaintiff’s direction; and that the plaintiff had the avails of her- labor. Under this evidence the court can not decide that she was not the plaintiff’s servant, though she did carry on business in her own name. The charge, in this respect, was, I think, correct.

The coverture of the plaintiff was no obstacle to such relation between her and her daughter; especially under the existing law of husband and wife. By the statute of 1860, (Laws of 1860, ch. 90,) she had the right to keep a boarding house on her own account, as she was doing, and consequently to employ servants. It follows, that for any injury to her servant, per quod servitium amisit, a right of action accrued to her, equally as if she had been unmarried. This is a necessary incident to the right to carry on business on her own account, and to employ servants therein. And I am inclined to think that for such cause of action a suit may be maintained in her own name, without joining her husband with her.

By the code, § 114, when a married woman is a party, her husband must be joined with her, except in two cases. One is, “when the action concerns her separate property, she may sue aloneand by section 7 of the act of 1860, (amended by chapter 172 of act of 1862,) “any married woman may, while married, sue and be sued in all matters having relation to her property.” And by the same section, “any married woman may bring and maintain an action in her own name, for damages against any person or body corporate for any injury to her person or character, the same as if she were sole; and the money received upon the settlement of any such action, or recovered upon a judgment, shall be her sole and separate property.” Now, if under section 114 of the code it is doubtful whether the plaintiff could maintain this action in her own name, yet, inasmuch as this act of 1860 had, in § 2, authorized a married woman to carry on any trade or business on her own account, it must be conceded, I think, that when in § 7 it provides that she may sue in all matters having relation to her property, it intended to authorize her to bring all actions necessary to protect her rights in carrying on such trade or business. The proceeds of her trade or business are specifically declared to be her separate property, and any wrongful interference with her business, either by enticing away her servants, or otherwise depriving her of their services, whereby the proceeds of her business are lessened, is a matter having relation to her property. Such, it seems to me, must have been the intent of the lawmakers, in using that language; especially when considered in connection* with the latter part of the section, which gives to a married woman the right to bring actions for injuries to their persons or characters. A construction of the language “ all matters having relation to her property,” which would exclude such a matter as this, it seems to me does not comport at all with the spirit and intent of the act. The action, I think, is well brought in her own name, without joining her husband with her.

In regard to the question of damages, the court was right in holding that the plaintiff was not restricted to compensatory damages. In the recent case of Lipe v. Eisenlerd, (32 N. Y. Rep. 229,) the court of- appeals holds that the right of the jury to give exemplary damages, in such actions as this, is not confined to cases where the plaintiff makes title solely through the parental relation; but such damages may also be given when the reqxúred relation of master and servant is established by convention; and the following rule is laid down: “The true rule, I think, is that the plaintiff’s right to the services may be made out in either way, and that when established, so that the action is technically maintained, the court and jury are to consider whether the plaintiff on the record is so connected with the party seduced, as to be capable of receiving injury through her dishonor.”

[Broome General Term, November 21, 1865.

There can be no doubt that the plaintiff in this case was so connected with the party seduced, as to authorize the jury to consider, and give damages for, her injury received through her daughter’s dishonor.

I do not see any error calling for a new trial, and am of the opinion that it should be denied with costs, and judgment rendered upon the verdict.

Balcom, J. concurred.

blew trial denied.

Barker, Balcom and Mason, Justices.]