78

jury to his minor child, and the principles upon which it rests have now been stated, without entering into detail with respect to the kinds of injuries for which such action may be brought, the scope of this work being such as to make it impossible to consider extensively the decided cases. To do so would take us into other distinct fields of investigation already covered elsewhere, as the parent may recover where the child has suffered personal injury through the negligence of another; in fact, for any injury of whatsoever kind. In such actions, however, the parent cannot recover if he has been guilty of contributory negligence.79 Such actions are governed by all the rules and incidents of actions for negligence. If the son while in the employ of another was himself guilty of contributory negligence, or if he was injured by a competent fellow-servant, the father cannot recover. A distinctive feature pertaining to this class of cases, however, is that a higher degree of care and a greater precaution is required of a master who employs an infant than of one who employs an adult.81 So may the parent sue one who abducts or entices away his minor child, being entitled to recover his actual injuries sustained, including reasonable and proper expenditures in regaining possession of the child.82 Recovery may be had by the parent

80

78 Karr v. Parks, 44 Cal. 46.

79 Johnson v. Reading City Pass. Ry., 160 Pa. St. 647, 40 Am. St. Rep. 752, 28 Atl. 1001.

80 Chicago etc. Ry. Co. v. Harney, 28 Ind. 28, 92 Am. Dec. 282.

81 Larson v. Berquist, 34 Kan. 334, 55 Am. Rep. 249, 8 Pac. 407; Coombs v. New Bedford C. Co., 102 Mass. 572, 3 Am. Rep. 506; Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67; Smith v. O'Connor, 48 Pa. St. 218, 86 Am. Dec. 582.

82 Coon v. Moffett, 4 Am. Dec. 403, note; Rice v. Nickerson, 9 Allen, 478, 85 Am. Dec. 777; Magee v. Holland, 27 N. J. L. 86, 72 Am. Dec. 341.

for an assault and battery upon his child, and for the seduction of a daughter, whether minor or adult. There are considerations which enter into this wrong, viz., the family ties, wounded feelings, dishonor and disgrace, one of the most abhorrent wrongs that may be committed against humanity, that cause us to lose all sight of the senseless fiction of the loss of service by virtue of the relationship of master and servant, said to exist between parent and child.85 A father may maintain an action against a man who falsely represents himself to be unmarried, thereby obtaining consent to the marriage of his minor daughter, but who lives with the daughter, until she, learning of his inability to contract marriage, commits suicide.86 The injury by seduction has been the subject of much litigation, and the books are replete with authorities touching it. It has but recently received the careful attention of a learned. writer, with great detail, to which reference is made, the purpose of this section being already accomplished.

§ 453. Can Parent be Injured by Marriage of Daughter Through False Representations?--The history of the world is replete with marriages through unconscientious conduct on the part of unscrupulous men, resulting in mental anguish to parents, and in positive injury to the daughter. But is there any

83 Kennard v. Burton, 25 Me. 39, 43 Am. Dec. 249; Hoover v. Heim, 7 Watts, 62.

84 Badgley v. Decker, 44 Barb. 577; Davidson v. Abbott, 52 Vt. 570, 36 Am. Rep. 767; Wert v. Strause, 38 N. J. L. 185; Lamb v. Taylor, 67 Md. 85, 8 Atl. 760; Lipe v. Eisenlerd, 32 N. Y. 229.

85 Anthony v. Norton, 60 Kan. 341, 72 Am. St. Rep. 360, 56 Pac. 529.

86 Sawyer v. Fritcher, 130 N. Y. 239, 27 Am. St. Rep. 521, 29 N. E. 267.

87 Monographic note, 76 Am. St. Rep. 659-682,

remedy? We are inclined to the belief that the majority of cases are damnum absque injuria. The solution of the question will always first depend upon the law of marriage in the particular state, it being a regrettable fact that with reference to a question which lies at the foundation of society there is so much conflict and uncertainty. An invalid statutory marriage may be validated by cohabitation beyond certain ages rendering it a common-law marriage. In such cases parents cannot alleviate their feelings by keeping their minor child with them at their home, and away from the man who has gone through a statutory form of marriage, which is invalid because of want of age and nonconsent, but the young people may, according to one case, constructively cohabit by keeping up a correspondence, rendering the marriage valid, the parents being liable to an action for alienation of affections.88 One case was noted in the previous section where the man falsely represented to the parents his status as a single man, pretending to marry the daughter, when he was in fact a married man. He was held for seduction. It has been held that a father may recover from an employer the wages of his child who has contracted marriage without his consent.89 It is immaterial that one or both of the contracting parties to a marriage have practiced fraud upon a parent in order to effect the marriage. A parent cannot sue an official who unlawfully issues a license for the marriage of his minor child.90 Nor do false and fraudulent representations to officers, and those authorized to solemnize marriages, and which culminate in a clandestine marriage, give rise to a right of action for the loss of a

88 Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791.

89 White v. Henry, 24 Me. 531.

90 Holland v. Beard, 59 Miss. 161, 42 Am. Rep. 360.

daughter's services after she has attained the statutory age of lawful wedlock.91 Nor will an action lie by a parent against another for procuring by unlawful means the marriage of his child, when it is a valid marriage.92 A parent might interfere where a man marries his daughter who is below the marriageable age, the marriage being void, and regain the custody of his daughter, and prevent the consummation of the marriage by cohabitation. But whether he would have any legal cause to complain in tort has perhaps not been decided.

§ 454. Seduction Under Promise of Marriage.— While there is no family relation involved where there is seduction of a female under promise of marriage, the question is suggested in considering the topics in this chapter, and the subject of this section introduced for the purpose of stating that it is not a tort. The wrong involved in such a transaction is a breach of contract, the seduction being merely an incident or an element of damages. The wrong consists in enticing a woman from the path of virtue, and obtaining consent to illicit intercourse by means of the promise. The promise and its breach is the gist of the action.93 In some states there has been a modification, the act as a crime being complete in the absence of a promise of marriage. The common law did not recognize or sanction any right of action in favor of the woman herself, allowing the action only in favor of the parent.

95

94

91 Herney v. Moseley, 7 Gray, 479, 66 Am. Dec. 515.

92 Jones v. Tevis, 4 Litt. 25, 14 Am. Dec. 98.

93 76 Am. St. Rep. 672, note; Putnam v. State, 29 Tex. Cr. App. 454, 25 Am. St. Rep. 738, 16 S. W. 97; Boyce v. People, 55 N. Y. 644; McCullar v. State, 36 Tex. Cr. Rep. 213, 61 Am. St. Rep. 847, 36 S. W. 585.

94 76 Am. St. Rep. 672.

95 Howland v. Carson, 28 Ohio St. 625, 76 Am. St. Rep. 672, note, and cases cited.

§ 455. Guardian and Ward.-The relation existing between guardian and ward is created by law, and, technically speaking, is not one of the domestic relations, but seems to be generally so treated by writers upon that subject. Because of his position, however, it becomes the duty of the guardian to care for and guard all the interests of his ward. If the latter sustains any personal injury of a permanent nature, the guardian may institute an action therefor. But a guardian, as such, does not sustain a relation similar to that of parent, so far as concerns the services of the ward, although he may stand in loco parentis, if he takes the ward into his family as if he were his own child. In such case, then, he may maintain an action, as may the parent, for any injury causing a loss of services.96 But a guardian, as such merely, cannot maintain an action, for example, for the seduction of his female ward.97

§ 456. Fraud in Procuring Marriage.-An act of fraud practiced by one to procure his marriage, while an actionable wrong, strictly does not come within the purview of an injury to the domestic relation, the specific wrong being fraud, the marriage being void. In some cases, however, the marriage may only be voidable at the option of the injured party, in which instance the wrong is truly done to the marriage relation. But few cases are reported on the subject. For example, it is held that it is actionable fraud for one already married to represent himself as competent to enter into the marriage contract,98 the action being sustainable, according to some author

96 Tiffany on Domestic Relations, 309, 310, citing Fernsler v. Moyer, 3 Watts & S. 416, 39 Am. Dec. 33.

97 Blanchard v. Ilsley, 120 Mass. 487, 21 Am. Rep. 535. 98 Blossom v. Barrett, 37 N. Y. 434, 97 Am. Dec. 747.