In such cases the relief of the party injured must be sought

through his own state department from the government of

the wrongdoer. This doctrine is applicable only when the

wrongdoer and the injured party are subjects of different

states and only when the wrongdoer's state authorizes or

ratifies his act. The defence of an " Act of State " is not

applicable between subjects or citizens of the same state.^ In

such cases the actor is protected only if his act was in fact

lawful.

1 Smith V. Utley, 92 Wis. 133.

2 Ante, В§ 260.

8 ]\IitchelI V. Harmony, 13 How. (U. S.) 115; Terrill v. Kankiii, 2

Bush (Ky. ), 453 ; Head v. Porter, 48 Fed. Rep. 481 ; Stanley v. Schwalby,

85 Tex. 348.

4 Buron v. Denman, 2 Ex. 107; Secretary of State for India v.

Karaachee Boye Sahaba, 7 Moo. lad. App. 470, 13 Moo. P. C. 22 ; Dow

V. Johnson, 100 U. S. 158.

В« Walker v. Baird, 1892, A. C. 491 ; Head v. Porter, 48 Fed. Rep. 481.

PART V.

LIABILITY OF THIRD PERSON FOR TORTS TO MASTER

OR SERVANT.

В§ 295. Introductory.

A third person may render himself liable to the master by

injuring the servant so as to impair the value of his services,

by seducing the servant, or by enticing the servant away from

the service. He may render himself liable to the servant by

procuring his discharge from the service or by inducing a

prospective master not to employ him.

368 LIABILITY OF TllIKD PEltSON

CHAPTER XXVTL

LIABILITY OP THIRD PERSON FOR TORTS.

В§ 296. Personal injuries to servant.

A master is entitled to the services of his servant, and one

who injures or restrains the servant so as to render him

unfit to labor is liable to the master for the resulting damages

occasioned by the loss of services whether the injury be wilful

or negligent.^ Thus the third person is liable for an as-

sault,^ false arrest,^ false imprisonment,* negligence,^ or other

tort^ to the servant which deprives the master of the services

to which he is entitled. To this rule there are two qualifica-

tions resting upon authority but of doubtful validity : (1) if

the defendant is under a contract duty toward the servant to

carry him safely and owing to the breach of this duty the ser-

vant is injured, negligently or intentionally, the master can-

not recover;" (2) if the injury to the servant results in

instantaneous death the master cannot recover.^ Both of

these exceptions seem to be without solid foundation and

both have been criticised and condemned.^

1 Gilbert v. Sohwenck, 14 ^I. & W. 488; Hall r. Hollander, 4 B. & C

660; Dixon v. Bell, 5 M. & S. 108; Ames v. Union By. Co., 117 Mass.

541 ; St. Johnsbury, &c. R. v. Hunt, 55 Vt. 570 ; ante, В§ 176.

2 Gilbert v. Schwenck, supra.

8 St. Johnsbury, &c. R. v. Hunt, supra.

* Woodward ^^^Vashburn, 3 Deuio (X. Y.), 369.

6 Dixon c. Bell, 5 M. & S. 198.

6 Durden i-. Barnett, 7 Ala. 169.

T Alton i;. Midland Ry., 19 C. B. n. s. 213; Fairmount Ry. v. Stutler,

54 Pa. St. 075; Bigelow on Torts (7th ed.), §§ 390, 801-804.

8 Osborn v. Gillett, L. R. 8 Ex. 88; Bigelow on Torts (7th ed.), В§ 391.

9 Pollock on Torts (5th ed.), pp. 59-61, 512-514. See also Ames v.

Union Ky., supra.

FOR TORTS. 369

A parent recovers under the theory of service for injuries

to a minor child, and may also recover as damages the

necessary expenses incurred for medical attendance and

care.^

В§ 297. Seduction of servant.

Akin to the action for injury to a servant is the action for

seduction of a female child or servant to whose services the

parent or master is entitled.^ In such case the parent recovers

ostensibly for loss of service and must show some slight ser-

vice ^ or right to service ^ as the basis of his action.^ It is not

enough to prove the seduction merely ; damages from loss of

services must also be shown. English cases seem to re-

quire proof of pregnancy or other disabling disease,^ but the

American cases are to the effect that where the proximate I'e-

sult of the seduction is a loss of health incapacitating the

daughter for service the damages are sufficiently established.'^

While loss of service or the right to service must be shown

as the basis of the action, the law allows additional substantial

damages to be awarded to the parent for the humiliation and

injury to his feelings resulting from the seduction.^

If after the death of the father the daughter remains with

and serves the mother, the latter may maintain an action for

seduction based upon the loss of service.^ So any person

actually standing in loco parentis may maintain an action, as

1 Hunt V. Wotton, T. Raym. 259; Dennis v. Clark, 2 Cush. (Mass.)

347; Horgan v. Pacific Mills, 158 Mass. 402.

2 Bigelow on Torts (7th ed.), §§ 256-273.

8 Bennett v. Allcott, 2 T. R. 1G6 ; Carr v. Clarke, 2 Chit. Rep. 260.

* Martin v. Payne, 9 Johns. (N. Y.) 387, disapproving Dean v. Peel,

5 East, 45; Mulvehall v. Miliward, 11 N. Y. 343; Furman v. Van Sise,

56 N. Y. 435.

6 Grinnell v. Wells, 7 M. & G. 1033 ; Bartley v. Richtmyer, 4 N. Y. 38.

^ Eager v. Grimwood, 1 Ex. 61.

7 Abrahams v. Kidney, 104 Mass. 222 ; White v. Nellis, 31 N. Y. 405.

8 Phelin v. Kenderdine, 20 Pa. St. 354; Fox v. Stevens, 13 Minn. 272;

Lipe V. Eisenlerd, 32 N. Y. 229 ; Lawyer v. Fritcher, 130 N. Y. 239.

9 Moran v. Dawes, 4 Cow. (N. Y.) 412; Gray i\ Durland, 51 N. Y.

424; Furman v. Van Sise, 56 N. Y. 435; Abrahams v. Kidney, 104 Mass.

222.

24

370 LIABILITY OF THIRD PEKSON

a step-fcitlicr, brother, aunt, or cousin,^ or any person who is

actually a master though not a relative,"'^ though in the latter

case damages would probably be for loss of service only.^

The consent of the daughter cannot bar the parent's action.

The consent of the parent, however, bars his action * or per-

haps such misconduct in the parental relation as contributed

to the injury.^ J3ut if the parent's consent to a marriage be

obtained by the false representation of the defendant that he

is single, the parent may maintain an action for seduction.^

В§ 298. Euticing away a servant.

A third person who with notice'^ of the existence of the re-

lation of master and servant entices or procures the servant

to quit the employment,^ or who, with notice of the relation,

harbors and keeps the servant of another as his servant,^ is

liable to the master for all damages resulting therefrom.^^

" A i)crson who with notice interrupts the relation subsisting

between master and servant by procuring the servant to de-

part from the master's service, or by harboring and keeping

him as servant after he has quit it, and during the time stipu-

lated for as the period of service, whereby the master is in-

jured, commits a wrongful act for which he is responsible at

law." li

1 Howard v. Ciowthor, 8 M. & W. GOl ; Davidson v. Goodall, 18 N. II.

423-, Wood on M. & S. В§244.

2 Fore.s v. Wilson, Peake, 55.

8 Bigelow on Torts (7th ed.), В§ 273.

* HollLs V. Wells, 3 Penn. L. J. 169 ; Seagar v. Slingerland, 2 Cai.

(N.Y.)219.

6 Reddie v. Sooolt, Peake, 240; Anthon's N. P. (N. Y.) 2G7.

6 Lawyer r. Fritclier, 130 N. Y. 239.

"> Fores v. Wilson, Peake, 55; Stuart v. Simpson, 1 Wend. (N. Y.)

376; Butterfield v. Ashley, 6 Cush. (Mass.) 249; Clark v. Clark, 63

N. J. L. 1.

8 Hart V. Aldridge, Cowp. 54; Scidmore v. Smith, 13 Johns. (N. Y.)

322; Carew v. Rutherford, 106 Mass. 1; Bixby i'. Dunlap, 56 N. H. 456;

Jones V. Blocker, 43 Ga. 331; Haskins v. Royster, 70 N. C. 601.

9 Blake i\ Lanyon, 6 T. R. 221; Sargent v. Mathewson, 38 X. II. 54;

Caughey v. Smith, 47 N. Y. 244.

10 Ante, В§ 176.

^1 Crompton, J., in Lumley v. Gye, 2 El. & Bl. 216. In this case an

FOR TORTS. 371

Such relation may arise from contract or from status,

as in the case of an infant ^ or a wife.^ In an action for

enticement it must appear that the servant is actually in

the service ; if he has already abandoned it the defendant

cannot be said to have enticed him away.^ Whether there

must be a binding contract or obligation to serve is not clear.

Where the enticement of one actually rendering service is

for an immoral purpose, and not in the way of competition, it