ity, after the death of the one committing the fraud, against his personal representative. 99 Not § 457. Master and Servant-Loss of Service. much space will be occupied in a discussion of the the rights of action which a master has against third persons whose wrongful acts injure this relation, because the principles governing the same are simple, and have already been sufficiently discussed in this chapter.100 By virtue of the relation, the master is entitled to the uninterrupted services of his servant. For whatsoever cause on the part of third persons he is deprived of these services, the master has a right of action against the one responsible therefor. A very old and common ground for such an action is personal injury sustained by the servant. 101 So where another unlawfully entices the servant away.102 It is an old and well-accepted rule of the common law that to knowingly, willfully or maliciously entice a servant away constitutes an actionable wrong; and the modern application of this doctrine is made by many courts, holding that where third persons, by threats or intimidation, or by false and fraudulent representations, induce a servant to quit employment, they are liable in tort to the master for the loss he sustains.103 99 Withee v. Brooks, 65 Me. 14; Higgins v. Breen, 9 Mo. 497. Contra, Grim v. Carr, 31 Pa. St. 533. 100 Ante, sec. 451. 101 Ames v. Union R. Co., 117 Mass. 541, 19 Am. Rep. 426; Martin v. Payne, 9 Johns. 387, 6 Am. Dec. 288. 102 Walker v. Cronin, 107 Mass. 555; Bixby v. Dunlap, 56 N. H. 456, 22 Am. Rep. 475; Jones v. Blocker, 43 Ga. 331. 103 Bixby v. Dunlap, 56 N. H. 456, 22 Am. Rep. 475; Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780, and note, 11 Am. St. Rep. 474, note, and numerous cases; Moran v. Dunphy, 177 Mass. 485, 83 Am. St. Rep. 289, 59 N. E. 125; Perkins v. Pendleton, 90 Me. 166, § 458. Same Continued-Considered in Respect to Labor Troubles.-Just what kind of acts on the part of individuals banded together by means of a labor union, which tend to, and are calculated to procure a servant to quit employment, are tortious, is a question of some moment. Clearly, the act of entering upon the premises of a master for the purpose of inducing his employees to leave their employment by any sort of means constitutes an actionable wrong.104 It is equally clear that a display of force by strikers against persons desiring to continue in the master's service, urging them in a hostile and vicious manner to cease work, is an unlawful interference with the rights of a master, whether such acts take place on or off the master's place of business.105 We are confronted in the consideration of this question with a doctrine supported by many authorities, which undoubtedly until recently, since so much litigation has been had in the federal courts, was considered a well-settled rule, viz., that it is perfectly lawful for a body of men to quit their master's employment, and peaceably, and without the use of any force or threats or intimidation, to induce and persuade other workmen-servants-to leave the service of their master, though done to compel the master to advance wages.108 Upon principle, it would seem that a master is injured in his legal right 60 Am. St. Rep. 252, 38 Atl. 96; Huff v. Watkins, 15 S. C. 82, 40 Am. Rep. 680. See c. 30, sec. 497, post. 104 Webber v. Barry, 66 Mich. 127, 11 Am. St. Rep. 466, 33 N. W. 289. 105 O'Neil v. Behanna, 182 Pa. St. 236, 61 Am. St. Rep. 702, 37 Atl. 843; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 52 Am. St. Rep. 622, 32 S. W. 1106; Wick China Co. v. Brown, 164 Pa. St. 449, 30 Atl. 261; Murdock v. Walker, 152 Pa. St. 595, 34 Am. St. Rep. 678, 25 Atl. 492; Consolidated Steel Co. v. Murray, 80 Fed. 811. 106 Snow v. Wheeler, 113 Mass. 179; United States v. Kane, 23 Fed. 748. to have his servant remain and continue in his service, by and through any kind of acts of third persons who, whether by moral persuasion, threats, intimidation or otherwise, cause such servant to leave the master's service, which rule has already been stated.107 A servant is "enticed away" whether through intimidation or moral persuasion. The matter of strikes is discussed elsewhere.108 § 459. Burial of Deceased Relatives-Rights in Dead Body. The family tie takes us to the last resting place of our dead, and, strange as it may seem, we have had some litigation over the rights in connection with the disposition of bodies of the dead. The establishment of the legal right is the starting point. Upon what theory shall it be said that one shall have the right to control the burial, and another not? The law must vest in some one the right of disposition of the corpse, and this is determinable by recourse to the natural human ties and affections. The right to the possession of the body for burial ought to be in those most intimately connected by blood or domestic tie with the deceased, and this right is what courts take cognizance of when dispute arises. So if there be any wrongful interference with these rights which the law recognizes as vesting in certain persons after burial, resort may be had to the courts. Looking to the history of the law on this subject, it will be found that at a very early date in England, ecclesiastical courts assumed exclusive jurisdiction of such matters. Considerable space is occupied in the books with a discussion of the question as to whether the dead body is property, it being thought 107 Ante, 457; also, c. 32, sec. 497, post. 108 See sec. 497, post. Torts, Vol. II-56 necessary to determine this question in order to solve the problem as to who is entitled to the dead body. By the civil law of ancient Rome, the charge of burial was first upon the person to whom it was delegated by the deceased, and second to the person to whom the property was given, and, if none, then upon the heirs in order. In England, and according to some authority in this country, it has been considered that, though a dead body is not property in the usually recognized sense of the term, yet it is considered as a sort of quasi property, to which certain persons may have rights, because they have duties to perform toward it arising from relationship.' It is not "property" in any sense, especially so that any of the remedies at law, which are usually resorted to in disputes over property, may be pursued, such as an action of replevin for the return of a human corpse. 110 109 § 460. Same Continued-The True Doctrine.-The true light in which the rights of relatives of a deceased person with reference to the possession and disposition of the body should be regarded, which is 109 Renihan v. Wright, 125 Ind. 536, 21 Am. St. Rep. 249, 25 N. E. $22, 21 Am. St. Rep. 249; Pierce v. Proprietors etc., 10 R. I. 227, 14 Am. Rep. 667; Weld v. Walker, 130 Mass. 422, 39 Am. Rep. 465; Burney v. Children's Hospital, 169 Mass. 57, 61 Am. St. Rep. 273, 47 N. E. 401; Larson v. Chase, 47 Minn. 307, 28 Am. St. Rep. 370, 50 N. W. 238: Foley v. Phelps, 1 App. 471; Bogert v. Indianapolis, 13 Ind. 134. Am. Dec. 513, for discussion of subject; I. 155, 49 Am. St. Rep. 762, 26 Atl. 42. Div. 551, 37 N. Y. Supp. 110 Keyes v. Konkel, 119 Mich. 550, 75 Am. St. Rep. 423, 78 N. W. 649; Weld v. Walker, 130 Mass. 422, 39 Am. Rep. 465; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Guthrie v. Weaver, 1 Mo. App. 141: Larson v. Chase, 47 Minn. 307, 28 Am. St. Rep. 370, 50 N. W. 238; Shark's Case, Dears. & B. 160; Griffith v. Railroad Co., 23 S. C. 25, 55 Am. Rep. 1; State v. Doepke, 68 Mo. 208, 30 Am. Rep. the position taken by sufficient authority that we may call it a general rule, is, that those most intimately and closely connected with the deceased by domestic ties have a right to the possession of the dead body as a sacred trust for the purpose of burial, which right the law will protect and enforce as a legal right—a sort of an intangible or incorporeal right, based upon natural affection or moral obligation, by appropriate remedies in equity.111 "In case of a contention, the court should assume an equitable jurisdiction over the subject, somewhat in analogy to the care and custody of infants, and make such disposition as should seem to be best and right under all the circumstances." 112 § 461. Same Continued-Who Have Right to Dead Body. The deceased may make a binding disposition of his body by will.113 It seems to be generally conceded by the authorities that a husband has the first right to the possession of his wife for the purpose of burial,114 and a widow the first right to the burial of her deceased husband, and not the next of kin.115 The relation between husband and wife is regarded nearer than that of kindred, as it is the teaching of the Holy Scripture that "A man shall leave father and mother 111 Weld v. Walker, 130 Mass. 422, 39 Am. Rep. 465; Pierce v. Proprietors etc., 10 R. I. 227, 14 Am. Rep. 667; Burney v. Children's Hospital, 169 Mass. 57, 61 Am. St. Rep. 273, 47 N. E. 401; Snyder v. Snyder, 60 How. Pr. 368; Scott v. Riley, 16 Phila. 106. 112 75 Am. St. Rep. 426, note; Snyder v. Snyder, 60 How. Pr. 368; Pierce v. Proprietors, 10 R. I. 227, 14 Am. Rep. 667. 113 Scott v. Riley, 16 Phila. 106. 114 Garney v. McCue, 3 Redf. 315; Durell v. Hayward, 9 Gray, 248, 69 Am. Dec. 284; Johnston v. Marinus, 18 Abb. N. C. 72. 115 Hackett v. Hackett, 18 R. I. 155, 49 Am. St. Rep. 762, 26 Atl. 42; Larson v. Chase, 47 Minn. 307, 28 Am. St. Rep. 370, 50 N. W. 238; duty of widow to bury, dictum: Wynkoop v. Wynkoop, 42 Pa. St. 293, 82 Am. Dec. 506. |