In the earlier stages of the Common law a wife, and unemancipated persons, i.e., minor, children and servants were regarded as occupying a subservient, if not unfree, status, and the paterfamilias was considered to have a right to the consortium of his wife, to the custody of his children, and the services of wife, children and servants.
By marital rights is meant the right of a husband to the society of his wife, and to the exclusive possession and control of her person. A husband can bring an action against persons who abduct, or entice, or keep away from him, his wife, or who harbour or maintain her after she has deserted his society.
The gist of the action is the loss of the consortium of the wife, which term implies an exclusive right against an invader, to her affection, companionship and aid. It is not necessary to the maintenance of the action that there should be any pecuniary injury to the husband.1)
A difference is deemed to exist, however, between the act of a parent and that of other persons with regard to persuading a wife to leave her husband. In the case of one not a parent, it is not necessary that bad motives should have inspired the act.2) Such a person has no right to entice or persuade a wife to leave her husband. It does not follow, however, that mere advice to a married woman by a stranger to leave her husband, upon representations by the wife, would be unlawful; advice in such a case is one thing, and enticement is another. In regard to a parent, it is considered that it is no breach of duty to the husband for such a person, upon information that his daughter is treated with cruelty by her husband, or is subjected to other gross indignities such as would justify a separation, to go so far as to persuade her to depart from her husband; though it subsequently appears that the parent's persuasion was based on wrong information. The parent must either have enticed his daughter to leave, or to stay away out of ill-will towards, her husband, and not by reason of any good ground for that separation; or that he must have some end to gain of personal benefit to himself. In regard to cases of 'criminal conversation ' (adultery, which is no longer an offence) with one's wife, an action was formerly given by the Common law. It rested upon the same ground as that for enticing the wife away from her husband, to wit, the loss of consortium.3) This action is abolished by an Act of Parliament in 1857 and the redress turned over to the Divorce Court.
A suit for damages is maintainable by a Mussalman against persons who without lawful excuse have persuaded and procured his wife to remain absent from him and live separately. A Mussalman lawfully married to a girl who has attained puberty can maintain a suit for damages against the father of the girl, and against an alleged husband of the girl, for wrongfully persuading her to remain absent from the plaintiff's society, and for detaining her away from him.4) A mere attempt to commit adultery is not an actionable wrong.5)
In actions for adultery, the damages are always exemplary, and the amount is affected by a consideration of the state of affection, or otherwise, in which the husband and wife previously lived; by the fact of their being separated at the time; by the negligence of the husband in exposing his wife to the defendant; by his ill-treatment of his wife, or his general immoral conduct; by the previous immoral character or otherwise of the wife; or by the conduct of the defendant, as having been a gross breach of hospitality or friendship, or, on the contrary, his having supposed the wife to be single, or his being misled or solicited by her into the crime. Where the action is not for the adultery, but for some special consequent loss, the damages will be strictly limited to such.
These are rights to the custody and control of children, and to the produce of their labour till they arrive at the age of twenty-one, subject to the proviso, that after attaining the age of sixteen, a female child may discharge herself from the control of her father; but before that age only when there is want of proper parental care or control. Children over twenty-one, unless rendering actual service, are not within this rule, but in the position of ordinary servants.
The rights are infringed by any act which interferes prejudicially with the custody of or control over children by their parent, or with the advantage which he derives from their services, if they were old enough to render any, the person interfering having notice of the right of the parent.
The rights are acquired on the birth of the child. They may be delegated to a school master or to a master of an apprentice.
A tutelary right, or a right of a person as a guardian over a child, is conferred by the last will of the father, or by a deed executed by him, or by a judicial act, or by devolution on certain classes of relatives. In the case of persons mentally incapable, a right of guardianship over them is conferred by the Court.
This right is violated by any person, with notice of the right of the guardian, arrogating to himself the control which is vested in the guardian. Anyone standing in loco parentis, and receiving, to his own benefit, the services of a child, is entitled to maintain an action for loss of services against anyone who wrongfully interrupts the rendering of them, or makes the full rendering of them impossible.
Every person who maliciously, or with notice, interrupts the relation subsisting between master and servant:
It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong. A person who procures the act of another can be made legally responsible for its consequences… if he knowingly and for his own ends induces that other person to commit an actionable wrong.7). It has been said by Lord Macnaghten that the decision in Lumley v. Gye was right, not on the ground of malicious intention; that was not, I think, the gist of action; but on the ground that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for interference.8)
A person who contracts with another to do certain work for him is the servant of that other till the work is finished, and no other person can employ such servant to the prejudice of the first master.9)
An action lies against a third person who maliciously induces another to break his contract of exclusive personal service with an employer which thereby would naturally cause, and did in fact cause, an injury to such employer, although the relation of master and servant may not strictly exist between the employer and employed.10) It has also been held that an action is maintainable, not merely for maliciously procuring breaches of contracts entered into by plaintiff with third persons, but also for maliciously conspiring together to injure the plaintiff by preventing persons from entering, into contracts with him.11)
The principle involved in the case oi Lumley v. Gye cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him. Temperton v. Russell ought to have been decided and may be upheld on this principle. That case was much criticised in Allen v. Flood, and not without reason; for, according to the judgment of Lord Esher, the defendants' liability depended on motive or intention alone, whether anything wrong was done or not. This went too far, as was pointed out in Allen v. Flood. But in Temperton v. Russell, there was a wrongful act, namely, conspiracy and unjustifiable interference with Bretano, who dealt with the plaintiff. This wrongful act warranted the decision, which I think was right.12)
The Justification which will be sufficient to exonerate a person from liability for his interference with the contractual rights of another must bean equal or superior right in himself, and it will not be sufficient for him to shew that he acted bona fide or without malice, or in the best interests of himself or others, or on a wrong understanding of his own right.13) A person who on being asked gives honest and bona fide advice to another which induces him to break a contract of service with a third person is not liable to an action at the suit of that third person, even though he has sustained damage by the breach of the contract; and the same is the case where several persons have combined to give the advice, if they have no malicious intention to injure the third person.14)
An action will not lie for the mere harbouring or sheltering a person, who is under a contract of service to another even with notice of such contract of service
Where defendant, a, manager of a theatre, induced a third party to break an engagement with plaintiff, the manager of a rival theatre, to sing at his theatre; it was held that the plaintiff was entitled to recover damages.15)
An action could be maintained for interrupting, with notice, the gratuitous relation of master and servant. It was sometimes supposed that inasmuch as the master in such a case could not require the services, he had no right to them which could be infringed. But this view does not now obtain. Though a person may not be able to require the bestowment of a gratuity, he has a right to it when it is bestowed, and in the course of receiving it, and no one may interrupt his actual enjoyment of the gratuity.
No action can be maintained for mere harbouring a servant ex gratia, though with notice; the action lies solely for enticing the person away or otherwise interrupting the performance of the service while the servant is disposed to, and engaged in, the performance of it. When the servant has put an end to the relation, the rights of the master at once terminate.16)
Damages for the mere seducing away of an actual servant from the employment of the master would be regulated by the actual money loss resulting from the act, unless where strong evidence of malice was shown. In estimating the injury sustained, the costs are not limited to the time during which the servant was bound to continue with his master.
No action will lie against a seducer of a servant when the master has recovered against the latter a stipulated penalty, agreed on in case of his leaving the service.17)
The workmen of a piano-maker were enticed away from him, and it appeared that they were engaged for no fixed time, but worked by the piece. His income from his trade was £800 per annum and a verdict for £1,600 was held not to be excessive.18)
In the case of female children, the father or guardian, and in the case of female servants, the employer has right of action for seduction, i.e., for the debauching of such child or servant. To support the action it is necessary;
Loss of service must be alleged and proved, at the trial, or the plaintiff will fail, notwithstanding the production of evidence conclusive as regards the guilt of the defendant; for, the wrong done by his act the English law does not esteem per se as an injuria, using that word in its strict sense, but merely as damnum sine injuria, for which, consequently an action will not lie. The foundation of the action by a father to recover damages against the wrong-doer for the seduction of his daughter, has been uniformly placed, from the earliest times hitherto, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest.21)
A girl under twenty-one is presumed to be in the service of her father, or other person, who stands in loco parentis, with whom she lives, whenever she is not actually in the service of another22), or where she has been got into his service by a person for the purpose of seducing her.23) It is sufficient that the daughter was living, with her father, forming part of his family, and liable to his control and command. The right to the service is sufficient.24) Evidence of an actual contract of service is not necessary but some slight service de facto, not necessarily menial service, must be proved, in all cases where the girl is not under twenty-one.25) Slight acts of household duty as making tea or milking cows would be sufficient in such cases.26)
Where the girl is in the service of one man at the time of the seduction, of another at the time of the pregnancy and illness, no action lies. The first master could not sue, because there was no illness and loss of service while she was with him, and the second could not, because the woman was not seduced while in his service.27) When death is caused by seduction probably no action can be maintained.28)
In the case of parents the action is based upon a bare fiction of service, though for that fiction there must be in some shape or other the relation of master and servant existing between the plaintiff and the person seduced at the time when the seduction takes place.29) But in the case of masters it is based upon an actual contract of service. It is not necessary that there should be any payment of wages.30)
Seduction: Plaintiff's daughter, being under age, left his house and went into service. After nearly a month, the master dismissed her at a day's notice and the next day on her way home the defendant seduced her; it was held that as soon as the real service was put an end to by the master, whether rightfully or wrongfully, the girl intending to return home, the right of her father to her services revived, and there was, therefore sufficient evidence of service to maintain an action for the seduction.31) When the child is only absent from her father's house on a temporary visit, there is no termination of her services, provided she still continues, in point of fact, one of his own household.32) Plaintiff's daughter was seduced in the house and service of the plaintiff, her mother; and the day after she left Ireland for America. But finding herself pregnant while in service there, she returned to her native country, and went to stay at her sister's house where she was confined. She afterwards returned to the house of her mother. Held, that there was a sufficient loss of service.33) The Court distinguished the case of Hedges v. Tagg, given below, on the ground that in it the girl's confinement happened when she was in the service of another; while in this case she was constructively in the service of the plaintiff directly she returned to Ireland. Where the daughter lived at, and assisted in the household work, after serving elsewhere during the whole day, it was held sufficient evidence of service to support an action.34)
No seduction: Where the daughter, though under age, is acting as house-keeper to another person at the time of seduction and had no intention at the time of the seduction to return to her father's house, though she afterwards did return there while within age in consequence of the seduction, and was maintained by her father; it was held that the action will not lie35); not even when she partly supports her father.36) Plaintiff's daughter was in service as governess and was seduced by the defendant whilst on a visit to the plaintiff, her mother. During her visit she gave some assistance in household duties. At the time of her confinement she was in the service of another employer, and afterwards returned home to her mother; it was held that there was no evidence of the service at the time of seduction and that the action must fail also on the ground that the confinement did not take place while the daughter was in the plaintiff's service.37) The plaintiff's daughter, who was in the service of the defendant, was permitted to go out once a week for an afternoon and evening. On such occasions she went to her father's house, and assisted in household duties. In an action by the plaintiff for the seduction of his daughter by the defendant while she was in the latter's service, it was held that there was no evidence of the relation of master and servant between the plaintiff and his daughter to support the action.38)
Indian case: A Hindu sued for compensation for the loss of his daughter's services in consequence of her abduction by the defendant. The daughter was a married woman, who had been deserted by her husband, and at the time of her abduction was living with the plaintiff, her father; it was held by Stuart, C. J., that the suit by the father for compensation for the loss of his daughter's services in consequence of her abduction was under the circumstances maintainable; but it was held by Oldfield, J., that a suit by a Hindu father for the loss of his daughter's services in consequence of her abduction is not maintainable.39)
Where an action for seduction lies, the damages are always exemplary and aggravated by the circumstances of seduction40) without the slightest regard to the actual value of the services lost, during the consequent pregnancy or illness, the supposed sole foundation of the action.41) The means of the defendant ought not to be enquired into, or to affect the amount of damages.42) It is an aggravation that the seduction was affected under the guise of honourable addresses.43) High position of the parties may be an aggravation of the wrong.44) It is a mitigation that the woman seduced was a person of loose, immodest, or immoral character, or that the plaintiff was grossly negligent in exposing her to the defendant.45) Actual damage, expenses incurred through a servant's or daughter's illness, loss which the plaintiff has sustained by the society and comfort of a child who has been seduced, the dishonour he has received, and the anxiety and distress which he has suffered must be taken into consideration.46)