Evans v. Walton In the Common Pleas, June 11, 1867. Reported in Law Reports, 2 Common Pleas, 615

The first count of the declaration stated that Louisa Evans was and still is the servant of the plaintiff in his business of a publican and victualler; and that the defendant, well knowing the same, wrongfully enticed and procured the said Louisa Evans unlawfully and without the consent and against the will of the plaintiff, her said master, to depart from the service of the plaintiff; whereby the plaintiff had lost the service of the said Louisa Evans in his said business.

Pleas: Not guilty; and that Louisa Evans was not the servant of the plaintiff, as alleged. Issue thereon.

The cause was tried before Pigott, B., at the last Spring Assizes at Oxford. The plaintiff was a licensed victualler in Birmingham, and was assisted in his business by his daughter Louisa, a girl about nineteen years of age, who served in the bar and kept the accounts. On the 10th of November, 1866, the daughter, with her mother’s permission, which was procured by means of a fabricated letter purporting to be an invitation to her to spend a few days with a friend at Manchester, left the plaintiff’s house and went to a lodging-house in the neighborhood of Birmingham, where she cohabited with the defendant, at whose dictation the above-mentioned letter had been written. On the 19th of November the daughter returned home, and resumed her duties for a short time, but ultimately left her home again, and on the 9th of February was again found cohabiting with the defendant at the same lodging-house.

On the part of the defendant it was submitted that, in order to sustain the action, in the absence of an allegation that the defendant had debauched the plaintiff’s daughter, it was necessary to show a binding contract of service.

The learned Baron, after consulting Blackburn, J., intimated an opinion that the action would lie upon the declaration as framed; but he reserved to the defendant leave to move to enter a nonsuit if the court should be of opinion that in point of law the action was not maintainable,—the court to have power to draw any inferences of fact, and to amend the declaration if necessary, according to the facts proved.

The case was then left to the jury, who returned a verdict for the plaintiff, damages, £50.

Huddleston, Q. C., in Easter term, obtained a rule nisi.

Powell, Q. C., and J. O. Griffits (June 11) showed cause, submitting that the action would lie upon the declaration as it stood.

The court called on

H. James and Jelf, in support of the rule. There are two kinds of action for loss of service, viz., an action for the seduction and consequent loss of service of a daughter, and an action for enticing away a servant. In order to sustain the first, it is not enough that there has been criminal intercourse, but it must be shown that that intercourse has resulted in pregnancy or other illness so as to cause a disability in the daughter to perform her accustomed duties: Eager v. Grimwood; Boyle v. Brandon, 13 M. & W. 738; but an actual contract of service need not be proved. It is not suggested that there is any such cause of action here. In Sedgwick on Damages (2d ed.), page 543, it is said that “although the defendant be guilty of the seduction, but the jury are of opinion that the child is not his, the plaintiff cannot recover. In other words, without some damage to the plaintiff or master occasioned by the illness of the female, and resulting from the illicit intercourse, the plaintiff is without relief.” And for this Eager v. Grimwood is cited.

[Bovill, C. J. Eager v. Grimwood is cited in Smith’s Leading Cases (6th ed.), vol. i. p. 260, with evident disapprobation.]

No precedent is to be found without the allegation per quod servitium amisit. The action for seduction is an anomalous one.

[Willes, J. Upon the first point, I think we are bound by the case of Eager v. Grimwood. The question is, whether the action may not be maintained for enticing the girl away from her father’s service.]

To sustain an action for enticing away a servant, it is necessary to show a valid and binding contract of service, which has been broken through the procurement of the defendant. Actual service is not enough. Here, there was no contract, express or implied, for the breach of which the father could have sued his daughter. All that the defendant can be charged with having done is, inciting the daughter to do that which in the exercise of her own free will she had an undoubted right to do. If an action would lie for this, it would equally lie for inducing a daughter to quit her father’s house for the purpose of marrying her. See Fitz. N. B. 90 H. In Cox v. Muncey, 6 C. B. N. S. 375, it was held by this court that no action will lie for enticing away an apprentice, unless there be a valid contract of apprenticeship; and the like was held as to a servant by the Court of Queen’s Bench in Sykes v. Dixon, 9 Ad. & E. 693; 1 P. & D. 463.

[Bovill, C. J. At the end of Lord Denman’s judgment, in Sykes v. Dixon, there is a remark which seems to be adverse to your view. “Then,” says his Lordship, “it was argued, on the authority of Keane v. Boycott, 2 H. Bl. 511, that the objection” (that is, to the validity of the contract) “was not one which a third person could take: and that might be so in a case where the servant was de facto continuing in the service; but not here, where he had quitted his master, and taken his chance in hiring himself to the defendant.” Here the daughter was de facto continuing in the service of her father when the defendant seduced her therefrom.]

All the authorities were referred to in Lumley v. Gye, and amongst them Blake v. Lanyon; but in none of them was the action held to lie in the absence of a binding contract of service.

Bovill, C. J. The rule in this case was granted principally on the contention of the defendant’s counsel that, in order to sustain the action, it was necessary to show that there was a binding contract of service between the father and the daughter. And for this proposition various text-books were referred to, and several cases cited, amongst which was that of Sykes v. Dixon, 9 Ad. & E. 693; 1 P. & D. 463. But, when that case is looked at, I find no such principle involved in the decision. Indeed, in each of the cases, from the form of the declaration, it became necessary to prove some contract for service beyond that which the law would imply from the relation of the parties. No authority is to be found where it has been held that in an action for enticing away the plaintiff’s daughter a binding contract of service must be alleged and proved. But there are abundant authorities to show the contrary. It is said that the case of seduction is anomalous in this respect. There is, however, no foundation for that assertion. In the case of an action for the seduction of a daughter, no proof of service is necessary beyond the services implied from the daughter’s living in her father’s house as a member of his family. So, in the case of an action for assaulting the plaintiff’s infant son or daughter, no evidence of service is necessary beyond that which the law will imply as between parent and child. In Barber v. Dennis, 6 Mod. 69; 1 Salk. 68, the widow of a waterman, who, as was said, by the usage of Waterman’s Hall, may take an apprentice, had her apprentice taken from her and put on board a Queen’s ship, where he earned two tickets, which came to the defendant’s hands, and for which the mistress brought trover. It was agreed that the action would well lie if the apprentice were a legal apprentice, for his possession would be that of his master, and whatever he earns shall go to his master; but it was objected that the company of watermen is a voluntary society, and that being free of it does not make a man free of London, so that the custom of London for persons under one and twenty to bind themselves apprentices does not extend to watermen; which was agreed by all. Then it was said that the supposed apprentice here was no legal apprentice, if the indentures be not enrolled pursuant to the 5 Eliz. c. 4, and, if he were not a legal apprentice, the plaintiff had no title. But Holt, C. J., said he would understand him an apprentice or servant de facto, and that would suffice against them, being wrong-doers. Again, in Fitz. N. B. 91 G. it is laid down that, “if a man ought to have toll in a fair, &c., and his servants are disturbed in gathering the same, he shall have trespass for assault of his servants, and for the loss of their service,” &c. To this is appended a note by Lord Hale: “Trespass for beating his servants, per quod servitium amisit, lies, although he was not retained, but served only at will. 11 Hen. IV. fol. 2, per Hull, accordant. And so if A. retains B. to be his servant, who departs into another county and serves C., A., before any request or seizure, cannot beat B.; and, if he does, C. shall have trespass against him (21 Hen. VI. fol. 9), and recover damages, having regard to the loss of service (22 Ass. 76): and the retainer is traversable. 11 Hen. VI. fol. 30.” These authorities, and the principle upon which the action for assaulting a servant is founded, would seem to show that an actual binding contract is not necessary. There is no allegation in this declaration of a hiring for any definite time. All that is alleged is, that the girl was the daughter and servant of the plaintiff. It cannot be doubted that the jury would infer from the facts that the relation of master and servant did exist, without any evidence of a contract for a definite time; and, if we are to draw inferences from the facts, I should come to the same conclusion. Then, was that relation put an end to? The service, no doubt, was one which would be determinable at the will of either party, as is said by Bramwell, B., in Thompson v. Ross, 5 H. & N. 16. That this kind of service is sufficient, I should gather from the language used by this court in Hartley v. Cummings, 5 C. B. 247, and particularly from the judgment of Maule, J. That was an action for seducing workmen from the service of the plaintiff, a glass and alkali manufacturer, and harboring them after notice. It appeared that one Pike was in the service of the plaintiff, and the defendant induced him to leave. In giving judgment, Maule, J., says: “The objection urged on the part of the defendant is, that the agreement entered into by Pike with the plaintiff was one that gave the latter no right to compel Pike to serve him, inasmuch as it was void either for want of mutuality or because it was a contract to an unreasonable extent operating in restraint of trade. On the other side, it was insisted, upon the authority of Keane v. Boycott, 2 H. Bl. 511, that it is quite immaterial, for the purpose of this action, whether the agreement was void or not; for that it is not competent to the defendants, who are wrong-doers, to take advantage of its invalidity. In answer to this, the case of Sykes v. Dixon, 9 Ad. & E. 693; 1 P. & D. 463, was cited on the part of the defendants, where it is said to have been decided by the Court of Queen’s Bench that such an objection may be set up by a third person not a party to the agreement. It is unnecessary to say whether that case may not be distinguished from the present,—there being no subsisting service that was interrupted by the act of the defendant,—because I am of opinion that in this case there was a contract between Hartley and Pike, which was perfectly valid, notwithstanding the objections that have been urged.” Whether or not there was a subsisting service seems to be the test. I think the jury properly assumed that there was a subsisting service here. It is said that the girl’s services were not lost to the plaintiff by reason of the defendant’s having enticed her away; for that, inasmuch as she afterwards returned to her father’s house, the relation of master and servant was not put an end to by any act of the defendant’s. I think however, there was a sufficient interruption of the service to entitle the plaintiff to maintain the action, and that the rule to enter a nonsuit should be discharged.

Willes, J. I am of the same opinion. I cannot look at it as an anomaly to hold that the daughter was the servant of her father at the time the defendant by his enticement induced her to forbear from rendering to her father the services which were due to him from her. There is a series of cases in the books, of which that in the Year-Book of 11 Hen. IV, fol. 2, is probably the first, to show that this action is maintainable. This case was followed by a very remarkable one of M. 22 Hen. VI, fol. 30, in which that doctrine is fully recognized, and where service at will and service upon a retainer are put upon the same footing with regard to any complaint of being wrongfully deprived of their fruits, and it is pointed out that the writ at common law ran, “quare un tiel servientem meum in servitio meo existentem cepit et abduxit,” without alleging any contract or retainer. That runs so completely with the earlier case, and also with the doctrine of Lord Denman in Sykes v. Dixon, 9 Ad. & E. 693, 699; 1 P. & D. 463, and of Maule, J., in Hartley v. Cummings, 5 C. B. 247, and also with the observations of Bramwell, B., in Thompson v. Ross, that I feel no difficulty in holding that, upon authority, as well as in good sense, the father of a family, in respect of such service as his daughter renders him from her sense of duty and filial gratitude, stands in the same position as an ordinary master. If she is in his service, whether de son bon gre or sur retainer, he is equally entitled to her services, and to maintain an action against one who entices her away. Assuming that the service was at the will of both parties, like a tenancy at will, the relation must be put an end to in some way before the rights of the master under it can be lost. As a question of fact, was the daughter in the service of her father at the time the cause of action arose? Was the relation of master and servant put an end to by her quitting her father’s house by means of the false pretence to which the defendant induced her to resort? There was no proof that she quitted without any intention to return to her home. What pretence, then, was there for assuming that the service at will was put an end to? To use the language of Newton, J., in the case of 22 Hen. VI, fol. 30, it is no more than if a servant should absent herself for the purpose of going to church on the Sabbath day. Then, was the defendant guilty of any wrong in keeping her away from the plaintiff’s service? I apprehend that, where the relation of master and servant exists, any fraud whereby the servant is induced to absent herself affords a ground of action. Somewhat the same sort of question arose in Winsmore v. Greenbank, where, in an action on the case for inducing the plaintiff’s wife to continue absent, it was held to be sufficient to state that “the defendant unlawfully and unjustly persuaded, procured, and enticed the wife to continue absent, &c., by means of which persuasion, &c., she did continue absent, &c., whereby the plaintiff lost the comfort and society of his wife,” &c., without setting forth the means used by the defendant, or alleging that any adultery had been committed. There is really no difficulty when once the relation of master and servant at the time of the acts complained of is established. It was said that, inasmuch as none of the usual consequences, such as sickness or the birth of a child, resulted from the defendant’s acts, no action is maintainable for the mere improper intercourse. Be it so, as there is an authority in favor of that position; but that only removes the charge of debauching the plaintiff’s daughter out of the way. It does seem to me to be an extraordinary thing, and to reduce the argument to an absurdity, to say that the plaintiff would have had a sufficient cause of action against the defendant if the daughter had proved with child by him, and had gone back to her father’s house and been confined there, and that the fact of the father having through his fraud been deprived of his daughter’s services during the nine days’ concubinage affords no ground of action. The conclusion I arrive at is, that it was a question for the jury whether at the time the daughter left her father’s house there was an existing service de facto, and whether by the defendant’s means and procurement that service was denied to the plaintiff. If both those questions were found against the defendant, the plaintiff was clearly entitled to the verdict. I think there was abundant evidence to support the finding, and that the rule must be discharged.

Rule discharged.