the family, the mother is entitled to recover for the loss of services of the child, and for labor performed and expenses reasonably incurred in the care and cure of the child, so far as they are the consequences of an injury to the child negligently caused by the defendant."

This statement of the law is abundantly supported by the authorities cited in the opinion, and by numerous others which might be added. See 17 Am. & Eng. Enc. Law (1st ed.), p. 387, and cases collected in notes 1 and 2; Drew v. Railroad Co., 26 N. Y. 49; McElmurray v. Turner, 86 Ga. 215, 12 S. E. 359; 2 Kent, Comm. 205, 206; Nightingale v. Withington, 15 Mass. 274, 8 Am. Dec. 101; Railroad Co. v. Cook, 63 Miss. 38; Commissioners v. Hamilton, 60 Md. 340, 45 Am. Rep. 739; Kennedy v. Railroad Co., 35 Hun, 186; Moritz v. Garnhart, 7 Watts, 302, 32 Am. Dec. 762; Furman v. Van Sise, 56 N. Y. 435, 15 Am. Rep. 441; Matthews v. Railway Co., 26 Mo. App. 75.

2. It being well settled, then, that a widow may maintain an action for loss of services of her minor child, the next question which arises is whether the plaintiff can maintain her action, the cause of which accrued prior to the death of her husband. The answer to this question, in so far as it relates to the plaintiff's right to recover for loss of service, etc., prior to the death of the father, depends primarily upon the relation which existed between the mother and daughter at the time of the accident as to the right of service; that is, whether the mother or the father of the girl at that time was legally entitled to her services. And as the father was presumably entitled thereto, it devolves upon the plaintiff to prove that he had in some way relinquished his right or conferred it upon her. While the right to the child's services is naturally in the father, he can doubtless surrender this right to another by contract or otherwise, in various ways, as (a) by binding the child as an apprentice (Ames v. Railroad Co., 117 Mass. 541, 19 Am. Rep. 426); (b) by allowing another person to so act that he stands in loco parentis (Whitaker v. Warren, 60 N. H. 26, 49 Am. Rep. 302). This principle is fully recognized in Morse v. Welton, 6 Conn. 547, 16 Am. Dec. 73, where it was held that the right of a parent to the services of his minor children "is bottomed on his duty to maintain, protect, and educate them. . . . But this right and this duty may be transferred to another, and may be relinquished to a child." The law doubtless is, however, that the father cannot permanently transfer his rights and duties to another, except by deed. State v. Libbey, 44 N. H. 321, 82 Am. Dec. 223.

The testimony upon which the plaintiff relies to show that the services of Sarah belonged to her at the time of the accident is to the effect that, the plaintiff is, and long has been, the real head of the family; that she owns the property, takes care of the family, and pays the bills; and that, by express direction from the father in his lifetime, she was entitled to, and did, receive all of the earnings of the daughter, Sarah. She employed the physician who has attended the daughter since the accident, and is personally responsible to him for his services. Dr. O'Keefe testifies that

he rendered his services at the request of the mother; that the night he was called he saw the case would be prolonged, and he had a talk with the mother, and she told him she wanted him to attend her daughter, and would see him paid; and that his services have been charged to her. The testimony further shows that the father had no property, and no income except his current earnings. In view of this state of the proof, plaintiff's counsel contends that the wages of Sarah were the property of the mother, for the recovery of which she could have maintained an action. . . . If the case were one which simply showed the payment to the mother of the child's wages by direction of the father, we should not deem this sufficient to enable the mother to maintain an action of this sort, as it is matter of common knowledge that for prudential and other reasons this is frequently done. But where, as in the case at bar, there is other evidence which, taken in connection with this, shows a relinquishment by the father of his right to the child's services, and an assumption of his duties to the child by the mother, then she can maintain the action. . . . In Harper v. Luffkin, 7 Barn. & C. 387, the father was allowed to recover for the seduction of his married daughter, although her husband had not consented to his wife becoming the servant of her father. In delivering the opinion of the Court, Lord Tenterden, C. J., in speaking of the husband, said:

"He may put an end to that relation of master and servant, but, unless he interferes, it by no means follows that such a relation may not exist, especially as against third persons who are wrongdoers. It appears to me that such a relation might, and did in fact, exist in this case, and that, in the absence of any interference by the husband, it is not competent for the defendant to set up his rights as an answer to the action."

In Parker v. Meek, 35 Tenn. 29, the mother was held entitled to recover for loss of services consequent upon the seduction of her daughter, who was twenty-four years of age, although the father of said daughter was living at the time of the seduction. In delivering the opinion of the Court, McKinney, J., said:

"Where the action is case, it is no more necessary in the case of a daughter of full age than in that of a minor that she should have been living in the family of the parent at the time of the seduction. Nor is it any more important in the one than in the other who was entitled to or enjoying her services at the time of the injury. The only inquiry of importance in either case is, on whom has the consequential injury fallen ? And such person, whether father, mother, or other person standing in loco parentis, is entitled to legal redress in the present form of action." . . .

An examination of the numerous cases bearing upon the general question involved shows that the consensus of opinion is to the effect that, in cases of wrongful injury, whoever, by reason of right or relationship, suffers consequential damage thereby, and may be liable for necessary expenses consequent upon such injury, is entitled to recover against the

wrongdoer the amount of such damages and necessary expenses. The right of recovery is based both upon the right to service, and upon the liability to support and maintain the person injured, where the result of the injury may be to render the person injured a public charge. The right to such recovery, in so far as it is based upon the liability to support the person injured, rests upon the pauper statutes, so called, beginning with the forty-third Elizabeth, which is as follows (chapter 2, § 7): "And be it further enacted that the father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame, and impotent person, or other person not able to work, being of sufficient ability, shall, at their own charges, relieve and maintain every such poor person in that manner and according to that rate as, by the justices of the peace of that county where such person dwell, sufficient persons, or the greater number of them, at their general quarter sessions shall be assessed, upon pain that every one of them shall forfeit twenty shillings for every month which they shall fail therein."

Our own pauper statute (Gen. Laws, c. 79, § 5) is a practical re-enactment thereof, and is as follows:

"SEC. 5. The kindred of any such poor person, if any he shall have, in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, or children by adoption, living within this state and of sufficient ability shall be holden to support such pauper in proportion to such ability."

A number of Courts have upheld the right of one standing in loco parentis to a child to recover for loss of services of such child, resting such right upon the liability of such person for the maintenance of the child under statutes similar to 43 Elizabeth. Thus in Moritz v. Garnhart, supra, the Court said of a grandparent (and in that case it is pertinent to note that both the mother and putative father of the child were alive):

"He is, indeed, not a parent, but is chargeable by the poor laws with the duty of one. The rights of a parent are pupillary, and, as they are given for the benefit of the child, the person in the exercise of them must necessarily have a correlative remedy for their infraction."

In Mathewson v. Perry, 37 Conn. 435, 9 Am. Rep. 339, the Court said:

"Our statute concerning the support of paupers by relatives imposes the obligation to provide for children alike on father and mother, making each liable if of sufficient ability. Gen. St. tit. 50, § 40. The provisions of this statute are taken substantially from the forty-third Elizabeth. If the right to receive the earnings of minor children, which is conceded to the father, be made to rest on the liability of the father for their support, the mother, having the same liability, should be entitled to the same right."

See also Hammond v. Corbett, 50 N. H. 501, 9 Am. Rep. 288; Whitaker v. Warren, 60 N. H. 26, 49 Am. Rep. 302; Railroad Co. v. Jones, 21 Colo. 347, 40 Pac. 891.

The uncontradicted evidence in the case at bar shows that the plaintiff

has supported, cared for, and nursed her said daughter, Sarah, since the happening of the accident in question, and also that she has lost the benefit of her services during all of said time. And we are of the opinion, and therefore decide, that, upon the facts and law as above stated, the rulings of the trial Court, whereby the plaintiff was permitted to introduce evidence of loss of services, etc., from the date of the accident, were correct, and should be sustained. The exceptions to such rulings are therefore overruled.

... 5. There is also an exception by the defendant to the granting of a request made by the plaintiff to charge the jury to the effect that damages might be awarded for loss of the society of the child, caused by the accident. The Court instructed the jury that, if the plaintiff lost the society of the child "through the wrongful act of another, she would be entitled to recover for that." This was error. In an action of this sort, the proper measure of damages is the pecuniary value of the child's services from the time of the injury until it attains its majority, less its support and maintenance, together with the necessary costs and expenses incident to the care and cure of the child, such as those for medical

and surgical attendance. 2 Sedg. Dam. (7th ed.) p. 520, note b, and cases cited. But the jury are not at liberty to consider the fact that the plaintiff has been deprived of the comfort and society of the child, nor can they consider any physical or mental suffering or pain which may have been sustained by the parent by reason of the injury to the child. Railway Co. v. Rush, 127 Ind. 545, 26 N. E. 1010; Railway Co. v. Fielding, 48 Pa. 320; Cowden v. Wright, 24 Wend. 429, 35 Am. Dec. 633. In short, the measure of damages in such a case is the same as that which obtains in a case brought by a master for the loss of services of his servant or apprentice. It is therefore practically a business and commercial question only, and the elements of affection and sentiment have no place therein. Moreover, in the case at bar the plaintiff does not allege in her declaration that any damages were sustained by reason of the loss of the society of her daughter, but only that she sustained damages by reason of having been deprived "of the earnings and income and services of her minor daughter and servant," and in nursing and caring for her, as aforesaid. In actions for the seduction of a daughter and for the alienation of the affections of a wife, a different rule doubtless prevails, and damages may be recovered for the disgrace and humiliation brought upon the parent in the former class of cases, in addition to those sustained by loss of service, Cooley, Torts (2d ed.), 271; 2 Greenl. Ev. (16th ed.) $ 579; 3 Suth. Dam. (2d ed.) § 1283, society and affection of the wife in the latter class.

§

and for loss of the The defendant's ex

ception to that part of the charge referred to is therefore sustained. . . . The verdict is set aside, and a new trial granted. Case remitted to the Common Pleas division for further proceedings.

72. EVANS v. WALTON

COMMON PLEAS DIVISION. 1867

L. R. 2 C. P. 615

THE first count of the declaration stated that Louisa Evans was and still is the servant of the plaintiff in his business of a publican and victualler; and that the defendant, well knowing the same, wrongfully enticed and procured the said Louisa Evans unlawfully and without the consent and against the will of the plaintiff, her said master, to depart from the service of the plaintiff; whereby the plaintiff had lost the service of the said Louisa Evans in his said business.

Pleas: Not guilty; and that Louisa Evans was not the servant of the plaintiff, as alleged. Issue thereon.

The cause was tried before Pigott, B., at the last Spring Assizes, at Oxford. The plaintiff was a licensed victualler in Birmingham, and was assisted in his business by his daughter Louisa, a girl about nineteen years of age, who served in the bar and kept the accounts. On the 10th of November, 1866, the daughter, with her mother's permission, which was procured by means of a fabricated letter purporting to be an invitation to her to spend a few days with a friend at Manchester, left the plaintiff's house and went to a lodging-house in the neighborhood of Birmingham, where she cohabited with the defendant, at whose dictation the above-mentioned letter had been written. On the 19th of November the daughter returned home, and resumed her duties for a short time, but ultimately left her home again, and on the 9th of February was again found cohabiting with the defendant at the same lodging-house.

On the part of the defendant it was submitted that, in order to sustain the action, in the absence of an allegation that the defendant had debauched the plaintiff's daughter, it was necessary to show a binding contract of service.

The learned Baron, after consulting Blackburn, J., intimated an opinion that the action would lie upon the declaration as framed; but he reserved to the defendant leave to move to enter a nonsuit if the Court should be of opinion that in point of law the action was not maintainable,

the Court to have power to draw any inferences of fact, and to amend the declaration if necessary, according to the facts proved.

The case was then left to the jury, who returned a verdict for the plaintiff, damages £50.

Huddleston, Q. C., in Easter term, obtained a rule nisi.

Powell, Q. C., and J. O. Griffits (June 11) showed cause, submitting that the action would lie upon the declaration as it stood.

The Court called on

H. James and Jelf, in support of the rule. . . . To sustain an action for enticing away a servant, it is necessary to show a valid and binding