#### LEVI McDANIEL vs. PHILIP W. EDWARDS.

An action by a father for the seduction of his daughter will not lie, when the daughter is of full age, and not living in her father’s family, but in the actual employment of another person, though her father was to receive part of her wages.

The case of *Phipps*v. *Garland, 3*Dev. & Bat. 44, cited and approved.

Appeal from the Superior Court of Law of Haywood County, at the Spring Term, 1847, his- Honor Judge Dick presiding.

This was an action on the case for the seduction of the plaintiff’s servant and daughter, Mary. Plea, *not*guilty.

The plaintiff introduced the daughter as a witness, and she stated, that she always lived with her father and labored as one of the family, until she went to live with the defendant, as herein after stated; that in the month of February, 1844, her father hired her to the defendant, at fifty cents a week, to manage his household affairs, during the expected confinement of his wife ; and that she then went to the defendant’s and remained there until October following, when she returned to her father’s in a state of pregnancy from cohabitation with the defendant during the month of May of that year and while she was living with the defendant. She further stated, that she has lived ever since with her father and labored .in the family, and that she was there delivered of the child, of which she was pregnant by the defendant, in the month of May 1845. She further stated, that she was .uncertain, whether she was 21 years of age in September, 1843, or became of that age in September, 1844; and that she received from the defendant part of her wages, while she lived with him, and her father received part.

On the part of the defendant, evidence was given, that the daughter herself made the contract for services with the defendant, and that she was of full age two or three years before she made it or went to his house.

*411The Court instructed the jury, that, if the daughter was an infant, when the seduction occurred, they \ought to find for the plaintiff; and, also, that, if they believed she was of full age, when she went to live with the defendant and was seduced by him, yet if the plaintiff had made the contract, under which the daughter went into the defendant’s service, and received the wages to his own use, then and in that case they ought to find for the plaintiff.

The jury gave a verdict against the defendant, and from the judgment he appealed. _

*Edney*and *J. W. Woodfin,*for the plaintiff,

cited the following authorities, 3 *Blac.*141 *note*— 1 *Wend.*447. *Briggs*v. *Evans,*5 Ire. 16. *2*Term Rep. 167. 6 East 387. 5th East 45, 47.

*Francis,*for the defendant,

cited, the following authorities, ÍSteph. N. P. 3 vol. 235, and cases there referred to. 3 Dev. & Bat. 44. *Postlewait*v. *Parks,*3 Bur. 1878'. *Bennett*v. *Alcot,*2 Term Rep. 166.

Ruffin, C. J.

Actions of this kind have been frequent In modern times, and we have looked into most of the reported cases; but wre have been unable to find one, that bears out the latter branch of the rule laid down to the jury in this case. Since the case of *Postlewait*v. *Parks,*Bur. Rep. 1878, it has been perfectly understood, that the gist of the action is the relation of master and servant and the loss of service. Therefore, though very slight service is sufficient to establish that relation, *de facto,*between father and daughter, yet it is indispensable to shew some service, in order to have that effect. Where the daughter is living “with the father, whether within age or of full age, she is deemed to be his servant, for the purposes of this action; in the former case; absolutely, and in the latter, if she render the smallest assistance in the family, as pouring out tea, milkifig, or the like. So also, if the daughter be within age, the action may b© *412maintained by thé father, to whom she returned to lie in, although she was on a visit to or living with another person at the time of the seduction, *Harper*v. *Luffkin, 7*B. & *C.*887, unless the daughter had not the *animus*rever-*tendí,*in which case she could not by any fiction be considered in the father’s service. Deere v. Peel, 5 East. 45. The reason, why the father may have the action for seducing his infant daughter, though not living in his family, is,, that she is, both legally and actually, *sub poteslate patris.*But that shews, that the action will not lie, when the daughter is of full age, and not living in the father’s family, but in the actual employment of another person. There is no case, that gives any color for the^supposition, that it would lie under those circumstances, except that of *Johnson*v. *McAdams,*stated in *the*argument of counsel in *Deen*v. *Peel.*But that was the decision of a single Judge at *Nisi Prius,*and the daughter went from her father’s on a short visit, merely, to a lady, and not on a contract of hiring, and, moreover was under age when she went away, though she obtained full age before the seduction. Even in that case Mr. Justice Wilson hesitated very much ; saying at first, that “where the daughter was of full age and no part of the father’s family, he thought the action *not*maintainable.” It is true he af-tewards told the jury, that the consent of the father to the daughter’s visit was to be inferred from the circumstances, and, therefore, that she might be considered as a part of the family. But the case was never carried before the Court in Bank, and, when cited by counsel, did not receive any expression of approbation. If, however, that case was right, it has no application to the present, as here the daughter was living with another person, and was his actual servant upon a contract of hiring: which comes within the rule, laid down by Judge Wilson himself, above quoted. That rale was adopted by this Court in the case of *Phipps*v. *Garland,*3 Dev. and Bat. 44. There, it was expressly stated, that the daughter, who *413was of full age, went to live with Garland, with her! father’s consent, and her *animus revertendi*was clear, as'; she left her property at her father’s, and she frequently ’• returned there on visits, and on such occasions washed and cooked; yet it was held, that she could not construe-, tively be considered the father’s servant, and, therefore,5 that the action did not lie. The reason, why the action does not lie in that case, is, that the father has’no legal right to the service of the daughter, nor authority over her, and she is not, *de facto,*a servant in his employment, but stands in that relation to another. Therefore, the circumstance, that the father and this defendant made the bargain for the daughter’s service and wages, can make no difference. For, although that might be the form the transaction assumed, yet, in law, the contract was that of the daughter, as she was *sui juris.*We do not say how it might be, if there had been an actual contract between the father and daughter for her service to him for a definite period, and, within the term, the father, by her consent, hired her to the defendant, and he seduced her. But if the father could have the action in that case, it would be by force of the express contract between him and the daughter for her time and labor; and that could not authorize this action, where there was no such contract and no ground for implying it. The defendant did not become entitled to the services of this young woman in virtue of any contract of the father ; for she was *sui juris,*although he may be called her master while she remains in his family, and he cannot, upon mere implication, be allowed the authority, as master, to hire her out, so as to make it obligatory upon her, and' thereby continue the relation of master and servant - between them. In law, the contract, on which she served the defendant, was her own and the wages were hers. The fiction of service has been carried far enough in -actions of this kind, without pushing it to this extreme length ; which, if admitted, would break down the rule itself, that the *414action is found on loss of service. For, next, it would be said, if the parent aided in the support of the daughter, as by giving her a garment or nursing her in sickness, that she might be considered as continuing to be his servant, though of age and living in service abroad, and thus, it would come at last, that the action was that of a father and not a master, and present the extraordinary instance, mentioned by Lord Mansfield, in *Satterthwaite*v. *Dewhurst,*5 East, 46, note, of an action by a person, on account merely of incontinence between two others, both of whom are of full age. ,

Per Curiam. Judgment reversed and *venire de novo.*