
    Hahn, Respondent, vs. Cooper, Appellant.
    
      March 23
    
    
      April 11, 1893.
    
    
      Seduction: Loss of services: Imbecile adult daughter: Pleading.
    
    1. In an action by the father for loss of the services of his adult daughter by reason of her seduction by defendant while she was in the employ of the latter-, the complaint alleged that the daughter was an • imbecile, and on that account plaintiff had never manumitted her and had always managed her affairs, but that she was capable of performing the ordinary drudgery about the farm; that defendant had engaged her services from plaintiff and accounted for them to him; that after she came home to plaintiff’s house she rendered services to him as a domestic; that at all times since she entered defendant’s employ she had been subject to the control of plaintiff, and he was entitled to reclaim her services at any and all times; and that by the acts of defendant she was disabled and disqualified from performing services for the plaintiff for many mouths. Held, that the complaint sufficiently alleged that the relation of master and servant existed between plaintiff and his daughter.
    2. An imbecile daughter over the age of twenty-one years is to be regarded as a minor, for the loss of whose services by reason of seduction the father may recover, so long as she remains at his home or under his control.
    APPEAL from the Circuit Court for Waulcesha County.
    The facts are sufficiently stated in the opinion.
    
      I). J. JBemloch, for the appellant,
    cited Vossel v. Cole, 10 Mo. 634,47 Am. Dec. 136; 2 Boone, Code PL 407; Dodd 
      
      v. Focht, 72 Iowa, 579; McDaniel v. Edwards, 7 Ired. Law, 408, 47 Am. Deo. 331; Lawson, B., E. & P. secs. 1113,1123; Boyd v. Byrd, 8 Blaokf. 113, 44 Am. Deo. 740; While v. Nellis, 31 N. T. 405; Dainv. Wycoff, 7 id. 191; Bartley v. Richtmyer, 4 id. 38; Lavery v. Orooke, 52 Wis. 612; NicJc-leson v. Stryker, 10 Johns. 115; Martin v. Payne, 9 id. 387; Applegate v. Ruble, 2 A. K. Marsh. (Ky.), 128; Bishop, Non-Cont. Law, secs. 375-380.
    For the respondent the cause was submitted on the brief of Armin & Tichenor. . >
    
   ObtoN, J.

This appeal is from the order of the circuit court overruling a demurrer to the complaint, based upon the ground that the complaint does not state a cause of action. The complaint states, in effect, the following facts:

The plaintiff is the father of Gustie Hahn, now twenty-four years old, who has been from her childhood a person of weak mind, whose intellect never developed beyond that of a child five or sis years of age; and for that reason he has never manumitted her and has always had the management of her affairs. In the year 1885 the defendant came to plaintiff to engage the services of Gustie, his said daughter, as a domestic, as she was capable of. performing the ordinary drudgery about a farm house; and the defendant then entered into an agreement with the plaintiff for the services of his said daughter, and the defendant accounted to the plaintiff for her services. The plaintiff warned the defendant that he must watch over said Gustie and see that no man took advantage of her and debauched her, because of the weakness of her intellect, and the defendant assented thereto. Shortly after the said Gustie entered the employment of the defendant, at divers and sundry times, thence on to the 9th day of March, 1891, the defendant, taking advantage of her weak mental condition, ignorance, and want of judgment and understanding, and by putting her in fear, seduced her, and carnally knew and had sexual intercourse with her, and begot a child upon her body, to which she gave birth October 5,1891, and said child is now living. On the 9th day of March, 1891, the said Gustie returned to her home, the dwelling and home of the plaintiff, and became from thence on an inmate of his family, rendering service as a domestic for the plaintiff. The said Gustie has been at all times since she entered the employ of the defendant subject to the .control of the plaintiff, and he entitled to reclaim her services at any and at all times. By reason of the pregnancy of the said Gustie, and her lying in and giving birth to said child, she was wholly disabled and disqualified from performing any services for the plaintiff for many months, and he was compelled to expend a large sum of money for her medical attendance and nursing during her said confinement, and, because of her weakness of intellect, she is unable and disqualified from properly caring for said child and giving it proper nurture, without the oversight of a competent person to watch her, and the services of such a person will be required so long as the mother nurses the child. The defendant was about forty-five years old, and had a wife and children. Damages $5,000.

The main, if not the exclusive, contention of the learned counsel of the appellant to sustain the demurrer is that the relation of master and servant, as between the plaintiff and his daughter Gustie, over age, is not alleged in the complaint. The learned counsel is unquestionably correct that such a relation must be averred in such a case to entitle the plaintiff to recover. The ground of his action is the violation of the plaintiff’s right to the services of his daughter, and his recovery must be for the loss of such services. There is no question about the law of the case. The learned counsel of the respondent contends that such relation is sufficiently averred, and such was probably the opinion of the learned circuit court. Let us see. (1) It is averred that this daughter, Gustie, is an imbecile, and the plaintiff has never manumitted her on that account, and has always managed her affairs, but “ that she was capable of performing the ordinary drudgery about a farm.” (2) The defendant engaged her services from the plaintiff, and accounted for them to him. (3) “ After she came home she rendered services to the plaintiff as a domestic.” (4) “ The plaintiff had the right to reclaim her services at any and all times.” (5) “ She was disabled and disqualified from performing services for the plaintiff for many months ” by the acts of the defendant. (6) Finally, the plaintiff sues the defendant for the loss of her services. The complaint seems to abound in allegations of the relation of master and servant between the plaintiff and this weak-minded daughter. When the defendant entered into a contract with the plaintiff to hire of him her services, and accounted to him for them, he conceded and admitted the plaintiff’s right to her services, and that such a relation existed between them-, which he is now estopped to deny. That the “ plaintiff has the right to reclaim the services of his daughter at any and all times ” is as strong an allegation of the relation of master and servant between them as could well be made. The law treats such a child over the age of twenty-one years as a minor, because she is incapable of emancipation from imbecility. The father must take care of such a child; and such a child, to the extent of its mental and physical capacity, owes service to the father like a minor. 17 Am. & Eng. Ency. of Law, 380; Lavery v. Crooke, 52 Wis. 612. So long as she remains at home or under the control of the father, he can sue for the loss of her services by means of seduction or debauchery alike. Lipe v. Eisenlerd, 32 N. Y. 229. The complaint appears to be an unusually good pleading in such a case. The demurrer was properly overruled.

By the Gourt. — The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.  