Greenwood v. Greenwood

28 Md. 369, 1868 Md. LEXIS 27

Opinion

Miller, J.,

delivered the opinion of this Court.

In this action by & father for the seduction of his daughter, under twenty-one years of age, per quod servitium amisit, the declaration avers the daughter was the plaintiff’s servant. In all such cases the loss of service being the gist of the action, the relation of master and servant at the time of the seduction must be averred in pleading and established by proof. About this there is no difficulty; all the well considered authorities agree that such an averment must be made and proved. The difficulty lies in determining what proof is necessary to sustain the averment. This is the point of controversy in this case, as it has'been in nearly every instance, both in England and in this country, where such cases have been before the Courts. The Court below refused an instruction asked for by the defendant to the effect that there was no evidence in the case legally sufficient to prove, that at the time of seduction, the relation of master and servant existed between the plaintiff and his daughter. The argument on the part of the appellant is, that the proof shows the daughter was not actually in the service of her father, but was at the time in the actual service of another, and therefore the action cannot be sustained. It is said, this is a common law action, and the English decisions, some of which sustain their position, have been pressed upon us with great earnestness by the appellant’s counsel, as the only proper guides to be followed in determining what the law in such cases is. Force is sought to be given to this argument, by the fact that our Declaration of Rights secures to the inhabitants of Maryland, the common law of England. Our ancestors, unquestionably, brought with them, to this country, that common law as their birthright, and all our Constitutions have sacredly guarded it as one of the rights of the peojde, but the Courts which the same people have established to administer that law, are made the sole authoritative expositors of it for them. Decisions in England made since the American Revolution, while entitled to the greatest respect, are not binding authorities upon this Court. On the contrary, the practice of this, as of other Courts, is to receive their own decisions only as of binding force. Previous decisions of this Court should not be disturbed except to settle some great rule of property, which the public interest requires to be reviewed, ór unless it is plainly seen that glaring injustice has been done, or some egregious blunder committed. Hammond’s Lessee vs. Inloes, et al., 4 Md. Rep., 138. It is also said the point now presented is a new question in this State. The subject has, however, been before the appellate Court on two occasions. In Mercer vs. Walmsley, 5 H. & J., 27, decided in 1820. Judges Buchanan and Johnson delivered opinions in which they distinctly announce as law, that a father may maintain an action for the seduction of his daughter when under age, whether she was living with him at the time or not, because from the legal control he had over her services, the law implies the relation of master and servant, unless in the case of her not living with him, he had by some act of his own destroyed that relolion; that she is his servant dejure, and by debauching her, an act is done that deprives him of services which he might have exacted. Both Judges questioned the correctness of the decision in Dean vs. Peel, 5 East, 47, which they say was mainly relied on by the appellee as establishing the position that the gist of the action was the animus revert,endi, and when that existed, whether the seduction took place while living with her father or not, whether a minor or of full age, was immaterial. The daughter, in Mercer vs. Walmsley, was over twenty-one, not living with her father, and not his servant defacto at the time; and it was not therefore essential to that decision to declare what the law is in the case of a daughter under age; yet from the course of argument pursued by counsel, and the authorities cited and relied on by them, it was certainly proper for the Court to do so; and that they did it after full deliberation and careful consideration of the cases, and with a design to settle the law, cannot, we think, be questioned.

In Keller vs. Donnelly, 5 Md. Rep., 211, decided in 1853, the action was brought by the mother; but it was admitted, that the law in case of a father bringing the action was correctly stated in Mercer vs. Walmsley, which was cited by the Court with approbation as settling the law in this respect, the Court saying that in that case the right of the father- to maintain the action was fully recognized, whether the daughter be above twenty-one years of age or not, provided if she be over twenty-one, she be at the time, in the service of the father, but “ during her minority the father is entitled to command her services, and the law, therefore, establishes between father and child constructively the relation of master and servant.” After such announcement of the law, by our predecessors, we should hesitate long before deciding differently, even if we were of opinion it had not been correctly stated. But we are fully satisfied of its correctness. It is supported by a great preponderance of authority in this country, and if the English decisions are examined it will be found difficult to sustain the reasons on which some of them are based, without admitting the correctness of the principles thus declared by our own Courts. We refer to the early cases of Fores vs. Wilson, Peake’s N. P., 55, and Jones vs. Brown, Ibid, 233, decided by Lord Kenyon, and to Maunder vs. Venn, 22 Eng. C. L. Rep., 535, decided by Littledale, J., which were cited in argument. In Griffith vs. Teetjen, 28 Eng. Law & Eq. Rep., 371, the defendant’s wife having gone out of town, he applied to the plaintiff to allow his daughter, then living with her parents to come and attend to his shop for him y the plaintiff consented and it was agreed his daughter should go and stay till the defendant’s wife returned, and that the defendant should pay her something, but the amount was not stated. She went and remained nearly a month, and when she left the defendant’s wife paid her eight shillings. During her stay she was seduced by the defendant, and was delivered of a child at her father’s house. The Court held the action maintainable, Maude, J., putting his judgment on the ground that “ there was nothing proved respecting the position the daughter held in the defendant’s house, inconsistent with her relation of servant to her father,” and Crowder, J., saying “ her absence was merely temporary, and for the purposes of this action I think it was not inconsistent with her remaining the servant of her father.” Upon this case the American annotator has well observed that it seems to incline more towards the American decisions. In Evans vs. Walton, decided in the Court of Common Pleas, as late as June, 1867, a girl nineteen years of age was enticed away from her father’s house by the defendant with whom she cohabited for a time, but there was no seduction in the legal acceptation of the term, and the father brought an action for enticing away and harboring his servant, whereby he had lost her services. It was argued that in such a case there must be some binding, contract of service proved, but it was admitted that no such proof was required in a case of seduction. In the course of the argument, Bovidd, C. J., after citing the ruling of Lord Kekyost, in Jones vs. Brown, asked: “ Is there any case wliere it has been distinctly laid down that there must be mething beyond the ordinary contract of service, which the law will imply in the case of a son or a daughter ? ” And in delivering his judgment he denied there was any such authority, or that the case of seduction was anomalous in not requiring such proof.

From these decisions it must be conceded that English Judges of the greatest eminence have held that the law implies the relation of master and servant, from the control which the father has over his minor children whilst living with him, and from his right to their services. Why should not this doctrine be carried to its logical result and the child be considered his servant de jure so long as the father’s control and right to services continue? Blackstone places the father’s right to the benefit of his children’s labor while they live with and are maimbained by him, on the same ground as his right to the services of his apprentices and servcmtS. 1 Bl. Comm., 453. The father is entitled to the custody of their persons and to the value of his children’s labor during their minority, because during that period he is bound to maintain them. Plummer vs. Webb, 4 Mason, 382. From a careful examination of the authorities and the reasons on which they are placed, we cannot doubt the law applicable to this case is correctly stated in Mercer vs. Walmsley, and Keller vs. Donnelly.

The father may, as these authorities admit, by some act of his own destroy this relation during the minority of his daughter so as to prevent his maintaining such an action. In what manner and by what acts this can be done must depend on the special circumstances of each case. It is sufficient to say here that the proof does not justify the granting of the appellant’s prayer, and if we were called upon to draw inferences from the testimony, we should hold the relation had not been destroyed but continued to exist. The daughter was not bound out as an apprentice, nor was there any express agreement by the father with his child to relinquish to her the right which he would otherwise have to her services, nor could such an agreement be implied from the circumstances of this case.

Another position has been taken and urged with much ingenuity and earnestness by the appellant’s counsel. They insist the legislation of this State has changed the common law, and that a female is here to be considered as of full age so as to be entitled to her own personal services, free from any legal control or restraint by her father at the age of eighteen years. The language of the Code of Public General Laws, Art. 6, sec. 20, that “any father may bind out his child as an apprentice on reasonable terms, for any time not longer than the full age of such child — that is to say, boys till twenty-one, and girls till eighteen, years of age,” is especially relied on in support of this position. But precisely the same language is used in the old apprentice law of 1793, eh. 45, sec. 4, and has been the law of the State from that day to the present time. ' The effect of this Act has been strangely misapprehended or overlooked, by the Legislature, the Courts, and the profession, if the position now assumed be correct. The Act of 1798, ch. 101, sub-oh. 12, secs. 1, and 15, conferred the capacity upon a female to receive her property from her guardian at the age of sixteen, (<by subsequent law made eighteen,) at which time the guardianship ceased. But in Davis vs. Jacquin, 5 H. & J., 100, it was decided that this law merely conferred upon her a new capacity, and did not take away or destroy her state of legal minority, nor remove her other disabilities, and, therefore, though entitled to receive possession of all her personal property at sixteen, she could not dispose of any of it until she attained the age of twenty-one. The same principle was recognized in Bowers vs. State, use of Dryden, 7 H. & J., 32. In Fridge vs. The State, use of Kirk, 3 G. & J., 103, it was held that a female under twenty-one could not execute a valid release to her guardian, and that in reference to her capacity to execute such an instrument, she was in contemplation of law a minor until she attained the age of twenty-one. The release in that case was a formal one, and was acknowledged and recorded, and this decision was followed by the Act of 3831, ch. 305, making such releases valid, and the 5th section of this law declares that any power of attorney executed for any of' the purposes specified in the Act by a female of eighteen, shall'be valid to all intents and purposes “ as if such female was of the full age of twenty-one years.” These laws have been embodied in, but not changed by the Code. It has also been the uniform practice in our Courts for a female till twenty-one to sue by guardian or prochein ami, and to answer in equity by guardian. It has never been doubted that a plea of infancy would avail such female when sued at law, or that her father was bound for her maintenance, and for necessaries furnished her. All this legislation was unnecessaay, all these decisions have been erroneous, and all this practice irregular, if the Act of 1793, ch. 45, jfixed the full age of females, for all purposes, at eighteen. Such a construction cannot be placed upon this law, nor upon any or all of the subsequent Acts conferring special privileges and endowing with special capacities females under the age of twenty-one. - The rule of construction applicable to these statutes is that cited from Dwarris in Hooper vs. Mayor and C. C. of Baltimore, 12 Md. Rep., 475, “as a rule of exposition, statutes are to be construed in reference to the principles of the common law. Eor it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced; ” and the effect of this legislation has been correctly stated by the Chancellor in McKim vs. Handy, 4 Md. Ch. Dec., 236, that is, that these Acts do not abridge, to every intent and purpose, the period for which at common law the minority of females continues, but merely confers upon females between eighteen and twenty-one certain capacities which they would be otherwise incompetent to exert, and that they still remain subject to all the disabilities incident to a condition of legal minority, except those which these Acts have removed.

The legal control of the father over the person of his daughter, and his right to her services until she attains twenty-one, have not been affected by any legislation of the State, and must be held to continue up to that period, nor do we apprehend any such evils, as counsel have supposed, will result from deciding that she is the servant of her father until twenty-one, though entitled to receive her property1 without guardianship at eighteen. Courts of Equity have ample power to interfere even with the parental relation, when a proper case for its exercise is made out, and when it becomes necessary for the safety, protection and obvious benefit of the child. They will not suffer parental authority to be abused, nor the infant’s property to be wasted or destroyed in the interval between eighteen and twenty-one, even though there may be no provision for the legal guardianship of such property during that period. In our judgment much greater evils would result from a decision severing the obligation of parental duty, and permitting females to leave their homes, freed "from all parental authority, at the age of eighteen. The common law has wisely limited the period during which the child is to be under the father’s control, and is entitled to look to him for support, and it cannot be changed without some positive act of the Legislature directed to this especial end

(Decided 19th March, 1868.)

It follows from these views, there was no error in the ruling of the Court below, and the judgment must be affirmed.

Judgment affirmed.