Parent and Child.-The right of a parent to sue for injuries to his child is the same in principle as that of a master to sue for injuries to his servant. A parent sues not as a parent but as a master, and the ground of the action is the loss of service. He, therefore, sues for the wrong, not to his child, but to himself; and can recover damages only for the loss of service he has sustained (i), and not for his wounded feelings. The service is essential. When, therefore, the defendant drove his carriage against the plaintiff's son, who was only two years and a half old, and the plaintiff brought an action of trespass per quod servitium amisit against the defendant, the action was held not to lie, for the child was not competent to perform any act of service (k). If, however, there is a capacity to serve, very slight evidence is sufficient to support the allegation of service, and an action has been maintained for an injury to the plaintiff's son though only eight or nine years of age, without proof of actual service (l), and (m) where a capacity to serve exists, the tendency of the courts is to infer service from residence with the parent without proof of actual service (n). The reason, however, which used to make it desirable to sue in the name of the parent (viz., that if the child was a party to the action his evidence was excluded), no longer exists (o), and in cases of doubt the action should always be brought in the name of the child. As the parent and the child have each a separate right of action, recovery by one is not an answer to an action by the other (p). GENERAL RULES. Parent and child. Seduction.The action for seduction depends, in Seduction. (i) Flemington v. Smithers, 2 C. & P. 292. (k) Hall v. Hollander, 4 B. & C. 660. (7) Ibid. (m) Smith, Master and Servant, 2nd ed., 97. (n) Jones v. Brown, Peake, 233; Torrence v. Gibbins, 5 Q. B. 300. (0) 14 & 15 Vict. c. 99, s. 2. (p) Edmondson v. Machell, 7 T. R. 4; Savil v. Kirby, 10 Mod. 386; Smith, Master and Servant, 2nd ed., 97, 98. RULES. GENERAL theory, upon the existence of the relation of master and servant, and illustrates both the first and second (q) rules laid down in this chapter; since the woman seduced cannot sue, having (on the ground rolenti non fit injuria) suffered no legal wrong; and the person who can bring an action is the parent or master, who sues, in theory at least, for the wrong to him, viz., the loss of service. The action, therefore, can be brought by any one who stands in the relation of master to the woman seduced, whether he be merely the master (r), or the parent, brother (s) or aunt (t) of the woman. It is no objection that the woman was of age at the time of the seduction; and it has been held, in a case where she lived with her father and acted as his servant (u), no objection to the action that she was a married woman. But, on the other hand, service of some sort is absolutely essential. If a daughter, for instance, is in the actual service of another person, her father cannot maintain the action (x). master might sue. independently and In this case it would seem the Where, again, a daughter is living supporting herself and the family, neither the parent nor any one else can bring an action for her seduction (y). Thus, where a woman standing in the position described was seduced, and her father brought an action for the seduction, he was nonsuited on grounds which are thus explained in the judgment of Erle, C.J.: "There was no evidence that the daughter was the servant of the plaintiff in the sense in which the word servant is used in the declaration. She was herself the head of an establishment of her own, and though she conferred benefits on her father's family, she was not a (q) See Rule 79. (r) Fores v. Wilson, Peake, 55. (s) Howard v. Crowther, 8 M. & W. 601. (u) Hooper v. Lufkin, 7 B. & C. 387. (x) Dean v. Peel, 5 East, 46. (y) Manley v. Field, 29 L. J. 79, C. P.; 7 C. B., N. S., 96. subordinate member of it, and did not render to the plaintiff services for the loss of which this action can be maintained" (z). Very slight evidence of service will be accepted as sufficient if a daughter resides with her parents. Thus milking cows, making tea, &c., amounts to service (a); and, indeed, it would seem that it is not necessary to prove any service beyond the services implied from the daughter's living in her father's house as a member of his family (b), or, in other words, that the mere fact of her living at home is sufficient proof of service (c). GENERAL RULES. Landlord Landlord and Tenant.-Actions are often brought in the name of a tenant for a trespass on the landlord's and tenant. estate; or in the name of a bailee (e. g., a carrier), for injury to the goods of the bailor. But the tenant or bailee does not in fact sue for the invasion of the landlord's or bailor's rights, but for an injury to himself, sc., for an invasion of his rights as possessor (though not owner) of the estate, or the goods injured by the wrong (z) Manley v. Field, 29 L. J. 80, C. P., judgment of Erle, C. J. (a) Bennett v. Alcott, 2 T. R. 168; Carr v. Clarke, 2 Ch. 260. (b) Evans v. Walton, L. R. 2 C. P. 615. (c) Since the action for seduction, though, in theory, brought for the loss of service, is, in reality, a means of bringing an action against the seducer for the seduction itself, it exhibits several peculiarities which are not strictly consistent with the theory on which the action is supposed to rest. First, The seducer need not be shown to know of the existence of the service, though such knowledge is essential to the maintenance of an ordinary action brought by an employer against a person who entices away a servant from his employment. Secondly, -The slightest evidence of service is sufficient. Thirdly, The parent may claim damages for the injury to his feelings (Dodd v. Norris, 3 Camp. 518). Fourthly, The action will not lie unless pregnancy or other illness has resulted, so as to disable the person seduced from performing her accustomed duties (Eager v. Grimwood, 1 Exch. 61; 16 L. J. 236, Ex.). Yet, where no illness has been produced, an action may be brought, not for the seduction strictly, but for enticing away the plaintiff's daughter. No allegation is then necessary, either that she was debauched, or that there was a binding contract of service between her and the plaintiff (Evans v. Walton, L. R. 2 C. P. 615). GENERAL RULES. doers. Actions of this kind are an illustration of the rule under consideration, but they are most conveniently considered in reference to the following rule. RULE 79. Any person who sustains an injury can sue for it. Injuries to person. RULE 79.—The person who sustains an injury (d) is the person to bring an action for the injury against the wrongdoer. The ground of an action for tort must always be an interference by a wrongdoer with some right existing independently of any contract between the plaintiff and the defendant (e), or, in other words, an injury. When, however, it is ascertained that an injury has been committed, e.g., that X. has, without any legal excuse, damaged property which is not his own, it is often a point of some nicety to decide which of several individuals is the person who has a right to sue X. The principle to be borne in mind is, that the person who must be made the plaintiff in the action is the person whose legal rights have been invaded, who may or may not be the individual who would generally be considered most interested in maintaining the action. The bearing of the general rule is best shown by considering its application to the three great classes of injuries; viz., injuries to person, injuries to character, injuries to property (ƒ). Injuries to Person.-Every man has a right to recover damages for any injury done to his person, whether caused by the wilful act or by the negligence of another; e. g., if A. is assaulted, falsely imprisoned, &c., by X., he can recover from X. compensation, both for the immediate wrong, and for its consequences. For the im (d) i. e., an interference with legal rights existing independently of a contract. (e) See p. 9, ante. (ƒ) It may, perhaps, be worth noticing, that the expression injuries to person, property, &c., is an abbreviated expression for injuries to a man respect of his person, property, &c. mediate wrong done to the person, e. g., for the mere assault, no one can sue except the person assaulted (g); but if an assault by X. upon B. indirectly damages A., by depriving A. of B.'s services, A. can, as before pointed out (h), sue X. for the damage done to him. It is, however, obvious that the one act,-sc., the assault,-has given a right of action to two persons, simply because the one wrongful act has interfered with the separate rights of two separate persons, i. e., with the right of B. not to be assaulted, and with the right of A. not to be deprived of the services of B. GENERAL RULES. Injuries to Character.-Each person libelled or slan- Injuries to dered can sue for the injury done to himself; and though character. it is conceived cases may be imagined in which a libel on A. might cause indirectly an injury to B., for which B. might perhaps sue X., the libeller, such cases must be rare; and as a general, if not an invariable, rule the only person who can sue for a libel or slander is the person with reference to whom the libel is written, or the slander uttered. Injuries to Property.-These injuries consist in damage Injuries to either to real property, or to personal property. property. perty. Real Property.-Injuries to real property either affect Real prothe immediate enjoyment of it, i. e., the possession, or, more strictly, the rights arising from the possession of it, or else affect the permanent or ultimate value of the property, or, lastly, affect both the immediate enjoyment, and the permanent or ultimate value of the property. If, for example, a stranger walks across land, his act of trespass affects the immediate enjoyment of the land, but does not affect its permanent value. If, on the other hand, he digs away part of the soil, he affects, in however small a degree, the permanent value of the property, and (g) See Rule 78, ante. The reader should bear in mind, throughout the chapters on actions for tort, the distinction between Trespass and Case; the one being the form of action for direct, the other for indirect or consequential injury. See p. 24, ante. (h) See p. 326, ante. |