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Topic 2. Child's Interest in the Parental Relation

77. SIR WILLIAM BLACKSTONE.

Commentaries on the Laws of England. (1765. Book III, p. 142. We may observe that, in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom: while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture. The child hath no property in his father or guardian; as they have in him, for the sake of giving him education and nurture. Yet the wife or the child, if the husband or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction; which is called an appeal,' and which will be considered in the next book."

consequence. May the parent recover for the loss of future services? (1909, Scherer v. Schlaberg, 17 N. D. —, 122 N. W. 1000.)

May the unmarried mother of an illegitimate child recover for its death? (1905, McDonald v. R. Co., 71 S. C. 352, 51 S. E. 138; 1903, Marshall v. Wabash R. Co., 120 Mo. 275, 25 S. W. 179; 1896, McDonald v. R. Co., 144 Ind. 459, 43 N. E. 447.)

Is an action for seduction maintainable by a parent who has hired out the daughter to a third person by a contract determinable at the parent's option? (1874, White v. Murtland, 71 Ill. 250.)

Is an action for seduction maintainable by a parent whose minor daughter is employed by a third person but visits home occasionally? (Whitbourne v. Williams, 1901, 2 K. B. 722.)

Is an action for seduction maintainable by the mother when the father is living out of the State? (1898, Abbott v. Hancock, 123 N. C. 99, 31 S. E. 268.) NOTES:

"Prospective damage: Medical expenses." (C. L. R., II, 186.)

"Wrongful death: Right of mother to recover for illegitimate child." (C. L. R., VI, 63.)

"Recovery by parent for injury to child: What damages recoverable." (H. L. R., II, 189; XII, 283.)

"Prospective loss of services by child's death." (H. L. R., XII, 140.)

CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: see the citations post, footnote to No. 85.]

1 [For the statute declaring the parent's duty to support the child, see No. 71, ante.

For the statutes concerning loss of support by liquor, see No. 89, post. CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: William Paley, "Principles of Moral and Political Philosophy," b. III, pt. III, c. IX (16th ed., vol. I, p. 384).

Charles S. M. Phillipps, "Jurisprudence," b. I, c. III, § 227, p. 207.
Theodore D. Woolsey, “Political Science," § 46.]

2 [See No. 61, ante.]

Topic 3. Husband's Interest in the Marital Relation

78. REGISTRUM BREVIUM (1595). Breve de trespass facta feminae (fol. 105 b). Si A. & B. vxor eius &c. pone &c. C. quare &c. in ipsam B. apud N. insultum fecerit &c. et bona & catalla eiusdem A. ibidem inuenta ad valentiam &c. cepit et asportauit, et alia enormia &c. ad graue damnum ipsorum A. & B. &c.

Ib. Breve de uxore abducta cum bonis viri (fol. 97 a). Si A. &c. tunc attachies B, ita quod eum habeas coram nobis &c. ad respondendum praefato A. quare vi & armis C. vxorem ipsius A. apud N. rapuit & eam cum bonis & catallis eiusdem A. abduxit, & eam adhuc ei detinet, & alia enormia &c. ad graue damnum ipsius A. & contra pacem nostram, & contra formam statuti in huiusmodi casu provisi. Et habeas ibi hoc breue. T. &c.

79. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England (1765, Book III, p. 139). I. Injuries that may be offered to a person, considered as a husband, are principally three: abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her. 1. As to the first sort, abduction, or taking her away, this may either be by fraud and persuasion, or open violence: though the law in both cases supposes force and constraint, the wife having no power to consent; and therefore give a remedy by writ of ravishment, or action of trespass vi et armis, de uxore rapta et abducta.1 This action lay at the common law; and thereby the husband shall recover, not the possession of his wife, but damages for taking her away: . . . 2. Adultery, or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary. . . . 3. The third injury is that of beating a man's wife, or otherwise ill-using her; for which, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly; but if the beating or other mal-treatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill-usage, per quod consortium amisit; in which he shall recover a satisfaction in damages.

80. ANON. The Attorney's Practice in the Common Pleas (1746, 2d ed., Vol. I, p. 439). Declaration for carrying away plaintiff's wife, goods, and chattels. Suffolk, to wit. M. W. late, etc. Malster, was attached to answer to S. F. Gent in a plea, wherefore with force and arms he took and carried away T. the wife of the said S. together with the goods and chattels of the said S. of the value of 500l. found at Stowmarket aforesaid, and detained the said T. the said wife of the said S. there from the said S. a long time, whereby the said S. lost the aid, comfort, fellowship, service and assistance of his said wife, and detained for a long time the said goods and chattels, and doth still detain the same, and did other wrongs to the said S. to the great damage of the said S. and against the 22 Inst. 434.

1 F. N. B. 89.

peace of his present majesty, etc. And whereupon the said S. by T. K. his attorney complains, that the said M. on the 15th day of May in the year of our Lord 1733, at S. aforesaid in the county aforesaid, with force and arms, etc. took and carried away the said T. then and now the wife of the said S. together with the goods and chattels of the said S. to wit, a gold watch, a watch-chain and picture set in gold, one pair of ear-rings of gold set with diamonds, two other gold rings, four gowns, four petticoats, one cloth cloak, one velvet hood, 20 holland shifts, two head-dresses of lace, and two other head-dresses of cambrick and lace, of the value of 2001. found at S. aforesaid; and detained the said T. the said wife of the said S. there from the said S. a long time, to wit, from the said 15th day of May in the said year of our Lord 1733, until the 18th day of October in the year of our Lord 1735, whereby the said S. during all that time lost the aid, comfort, fellowship, service and assistance of his said wife; and also during all the time aforesaid detained the said goods and chattels, and doth still detain the same, and did other wrongs, etc. to the great damage, etc. and against the peace, etc. whereby the said S. says that he is injured, and hath damage to the value of 20001. And thereupon he brings suit, etc.

81. HYDE v. SCYSSOR

KINGS' BENCH. 1620

Cro. Jac. 538

TRESPASS; for that the defendant, 21 May, 6 Jac. 1, made an assault upon Elizabeth the plaintiff's wife, et illam verberavit, et male tractavit, necnon the said Elizabeth simul cum one gown, one petticoat, &c. of the goods of the plaintiff, simul cum the said Elizabeth, at D. tunc et ibidem cepit, abduxit, et abcariavit, necnon eandem Elizabetham per 5 annos ab eodem le plaintiff detinuit et custodivit, per quod le plaintiff solamen et consortium, necnon consilium et auxilium in rebus domesticis quae idem le plaintiff habere debuisset et potuisset cum uxore sua per totam tempus praedictum perdidi et amisit, et alia enormia, &c.

The defendant pleaded not guilty; and it was found against him, and damages assessed to three hundred pounds, and judgment found for the plaintiff and now a writ of error thereof was brought in the ExchequerChamber.

The first error assigned was, because the action was by the husband solely for the battery of his wife, which ought not to be; for the tort and damages are properly done to the wife, and therefore the husband sole without the wife could not maintain this action; and then the damages being entirely given, the judgment is erroneous. Vide 9 Edw. 4, pl. 52. 46 Edw. 3, pl. 3. 22 Ass. pl. 16. Ante, 501, 502.

But all the justices and Barons held, that true it is the husband, for the battery of his wife, ought to join his wife with him in the action, if this had been brought for that cause; but here the action is not brought for the battery of his wife, but for the loss and damage of the husband,

for want of her company and aid; and all is concluded with the per quod consortium amisit, which extends to all that was before; as where an action brought by the master for the battery of his servant, per quod servitium amisit, &c.

A second error assigned was, because it is cepit et abduxit, where it ought to have been rapuit; for so is the register for writs brought in such cases. Sed non allocatur; for it may be both ways. Wherefore the judgment was affirmed.

82.

BIRMINGHAM SOUTHERN RAILWAY COMPANY v.
LINTNER

SUPREME COURT OF ALABAMA.

1904

141 Ala. 420, 38 So. 363

APPEAL from the Circuit Court of Jefferson.

Tried before the Hon. A. A. Coleman.

This action was brought by the appellee, William Lintner, against the Birmingham Southern Railway Company, to recover damages alleged to have been caused by the negligence of the defendant in one of the engines operated on the defendant's road, running upon or against a horse and buggy which belonged to the plaintiff.

It is averred in each of the counts of the complaint that the plaintiff's wife, Clara Lintner, was in the buggy drawn by the horse, driving along a street in or near the town of Ensley, and as she drove across the track of the defendant which crossed said street, the said engine ran upon or against said horse and vehicle, and threw the plaintiff's wife from the vehicle, whereby she was severely injured in her person, and was made sick. It was then averred in each of the counts of the complaint, that as a proximate consequence of such injuries and sickness of the plaintiff's wife, "he lost the services and society of his said wife for a long time, and will likely continue to lose her said services and society for a long time, and he was put to great trouble, inconvenience and expense for medicine, medical attention, care and nursing in or about his efforts to heal and cure the said wife's said wounds, injuries and sickness." It is further averred in each of said counts that said vehicle was broken and otherwise injured, and the harness by which the horse was attached to said vehicle was greatly injured and damaged, and the horse was injured, for all of which damages the plaintiff claims $5,000.

The defendant moved the Court to strike out of each count of the complaint the portions thereof which claimed damages on account of the loss of the services and society of the wife of the plaintiff, upon the ground that the plaintiff is not entitled to the services of his wife under the laws of the State of Alabama, and that the complaint shows that he has not lost the society of his wife, because she was living at the time

of the complaint. . . . Each of these motions was overruled by the Court, and to each of these rulings the defendant duly excepted.

Plaintiff was the husband of Clara Lintner. On October 31, 1901, she had driven, in a buggy, to the place where her husband worked, to carry him to his work at the steel plant. She then started home, and in crossing the railroad of the appellant the horse and buggy were run into by an engine of the appellant on a public road crossing. The buggy was broken up and the horse slightly injured. The horse and buggy were the property of the appellee. Clara Lintner, wife of the appellee, was also injured. The extent of her injury was a disputed question. She claimed serious injury; this, however, was contradicted by the attending physician. She was in bed for a while, about one week, and testified that she had not entirely recovered at the time of the trial. . . . There were verdict and judgment for the plaintiff assessing his damages at $500. The defendant appeals and assigns as error the several rulings of the trial Court, to which exceptions were reserved.

A. G. & E. D. Smith, for appellant. Our contention is, that our married-woman statutes, §§ 2520 to 2537, and especially §§ 2521 and 2527 of the Code have modified the common law in this respect; that the husband's legal right to the labor, the services, and the earnings of the wife, having been divested out of him by these statutes, that he cannot claim the value of such labor, services, or earnings in a suit of this character. The question is an open one in Alabama, but it has been passed on by the Supreme Court of Massachusetts under statutes similar to ours. Harmon v. Old Colony R. R. Co., 31 L. R. A. 658; Jordan v. R. R. Co. 138 Mass. 425. . .

Bowman, Harsh & Beddow, contra. . .

MCCLELLAN, C. J. "The earnings of the wife are her separate property; but she is not entitled to compensation for services rendered to or for the husband, or to or for the family." Code, 2521. The whole scope and purpose of this enactment manifestly is to vest in the wife her earnings in service rendered to third persons, strangers to the household. It in no degree emancipates her from her household duties, nor authorizes her to enter upon such alien service as would conflict with and prevent the performance of her duties incident to the domestic establishment, the care, comfort, and convenience of the family the duties, in short, which before the statute she owed to the husband as the husband and head of the family. These duties she owes now just as she did at the common law; and while the husband may allow her to pretermit them and engage wholly or to any less extent in outside service the earnings of which belong to her, without such emancipation by the husband she owes these services to him now as before, and for any wrongful act of a stranger which deprives him of them he is entitled to recover for the consequent loss and injury. Nor does this, or any other statute absolve the husband from the duty of caring for the wife "in sickness and in health." If she be injured in her person by the wrongful act of a stranger,

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