South against Denniston, 2 Watts 474

The opinion of the Court was delivered by Gibson, C. J. An action on the case for the seduction of a daughter is founded exclusively on the relation of master and servant, not parent and child ; and the gist of it is consequential loss of service. By reason of a father’s duty to educate and maintain his infant children, he stands in the place of a master to them while he retains ' the right of personal control, even as to such of them as are not under his immediate dominion.

But if this right be divested or expired, the relation can be renewed but by actual service, which, to found an action for the interruption of it, must have existed at the doing of the act of which the interruption is a consequence; the difference between it and any other state of servitude being that slighter acts of service are evidence of it. If, however, the right of control be not finally parted with, its existence without actual service is a sufficient foundation for a title to the action; and the decision in Dean v.

Peel, 4 East 49, that actual employment in the service of another without an intent to return to the father’s protection, is fatal to an action in his name, has been justly repudiated, because his right to his daughter’s service is independent of her will. But a mother, being at best in the category of a father who has parted with his right, can maintain the action but on proof of actual service at the time of the seduction.

Not being bound to the duty of maintenance, she is not entitled to the correlative right of service ; and standing as a stranger to her daughter in.respect to these, the relation of mistress and servant can be constituted between them but as it may be constituted between strangers in blood, save that less evidence would perhaps be sufficient to establish it. These are the fundamental principles of the action, deducible from all the authorities but Sargeant’s case, 5 Cowen 114, and from that we are constrained to dissent.

There it appears to have been decided that a widow whose daughter has been debauched while out at service under indentures of apprenticeship subsequently cancelled, might maintain the action on the ground that she had succeeded to the parental rights of her husband ; or else that the daughter was in her service at the time of the birth. But nothing is more sure than that a mother is not entitled to the service of her child by the common law; and the decision therefore obviously rests on some statutory provision, devolving the parental rights of the father upon his-widow, which is not in force here.

Yet even that would seem to be inadequate to the maintenance of the action by a widow who had parted with her right without reservation or recall; and even taking for granted that it reverted to her at the cancellation of the indentures, still it did not exist for the purpose of sustaining the relation of mistress and servant at the time of the seduction. The action was therefore not maintainable on the last ground according to the decision of the same court in Nickleson v. Stryker, 10 Johns. Rep. 117.

But whatever may have been decided, it requires but little aid from authority to sustain a principle so palpable, as that a party cannot entitle himself to an action for what was no wrong to him, by employing a disabled servant. An action for loss of service would certainly not lie for beating one who was not in the plaintiff’s service at the time, because it would be esteemed

an act of folly in him to employ an unfit person ; and it rñust necessarily be indifferent, in point of principle, whether the unfitness were caused by beating or impregnation. It was so considered in Logan v. Murray, 6 Serg. & Rawle 175, where the daughter had come pregnant into the mother’s service, after the death of her father, in whose service she had been debauched. As to the child-bed expenses, assuming that the mother is liable to bear them (though we certainly have no law for it), these, though proper to swell the damages, are not a substantive ground of the action, as was held in Logan v.

Murray ; and as to the argument so earnestly pressed upon us, that she is entitled to compensation for the increased risk of becoming chargeable for the daughter’s maintenance as a pauper, it is enough to say that it would make the mother’s right depend on the contingent inability of the daughter to maintain herself, which is not the foundation of the action by a father, whose duty to maintain is an immediate one, and independent of all consideration of the child’s own means.

Beside, the principle would give the same right of action to the daughter for the seduction of the mother, and might, under circumstances, entitle the servant for damages for the impregnation of her mistress. That would be an inversion of the principles of the action laid down by this court in Hornketh v. Barr, 8 Serg. & Rawle 39 ; the authority of which is amply sufficient to sustain the decision of the court below.

The daughter residing in the family of the defendant’s father at the time of the «eduction, could in no respect be considered her mother’s servant; and her subsequent acquirement of the character, if she ever did acquire it, could not vest in the latter a title to the action. Judgment affirmed.