MARYLAND.

COURT OF APPEALS.

John C. LAMB, Appt.,

v.

Henry TAYLOR, Sr.

1. In an action by a father to recover for the loss of services of his daughter, caused by her seduction, slight evidence is sufficient to establish the relation of master and servant.

2. In such a case, if the daughter is living with her father, rendering services, the fact that she is over twenty-one years of age is immaterial.

3. It is immaterial whether the services rendered by the daughter were paid for or not, or whether any special contract existed.

4. It is no objection to the father's right of action that the daughter was employed by a third party out of her father's house during the day, and that she paid for her board at her father's.

Defendant s second prayer was as follows: "If the jury find for the plaintiff, they are restricted in their estimation of damages to such loss of services as they find the plaintiff sustained by reason of the seduction of the plaintiff's daughter by the defendant.'

Plaintiff's third prayer was as follows:

""

"If the jury find the facts stated in plaintiff's first prayer, it is competent for them to find such damage for the plaintiff as they may deem right and proper under all the evidence in the cause." Mr. Benjamin Kurtz, for appellant: The daughter was over twenty-one years of age at the time of the alleged seduction, and was also under a contract of employment with another from whom she received wages.

The alleged services were rendered to the mother; and although it may be contended that they inured to the benefit of the father, they were entirely voluntary and gratuitous on the part of the daughter, and the natural and usual outcome of her filial relation. There was no legal right in the father, based upon support furnished the daughter or any other consideration, which entitled him to command her services. On the contrary, the daughter seemed to be supporting the father. She was not, therefore, his servant, de facto; and he cannot main

A1

(Decided March 16, 1887.)

PPEAL from a judgment of the Baltimore City Court, entered upon a verdict for plaintiff of $10,000 damages in an action for seduction. Affirmed.

Argued before Alvey, Ch. J., Miller, Robinson, Irving, Stone, Yellott and Bryan, JJ.

The case is stated in the opinion.

The rulings of the court below complained of in the first bill of exceptions were the refusal of defendant's first prayer and the granting of plaintiff's first prayer.

Defendant's first prayer was as follows:

"That the plaintiff has offered no evidence legally sufficient, under the pleadings in this case, to entitle him to recover; and their verdict must, therefore, be for the defendant."

Plaintiff's first prayer was as follows: "If the jury find from the evidence that Rachel Taylor is the daughter of the plaintiff, and that she has always lived with him and performed service for him as his servant in and about his household, and 'slight service' is sufficient to sustain this action; and further find that while she so lived with her father and performed service for him as aforesaid, she was seduced by the defendant and gave birth to a child begotten by him, and the plaintiff lost her service by reason of the confinement and lying in of said Rachel, and was subjected to the payment of costs and charges on account thereof, then they ought to find for the plaintiff, notwithstanding they may believe that the said Rachel was, at the time of said seduction, over twenty-one years of age.'

The rulings complained of in the second bill of exceptions were the refusal of defendant's second prayer and the granting of plaintiff's third prayer.

Mercer v. Walmsley, 5 Harr. & J. 27; Keller v. Donnelly, 5 Md. 216, 218; Greenwood v. Greenwood, 28 Md. 381; 2 Greenl. Ev. §§ 572, 573; 2 Selw. N. P. 1103, 1104, 10th ed.; Maunder v. Venn, 1 Moody & M. 623; Nickleson v. Stryker, 10 Johns. 115; Martin v. Payne, 9 Johns. 387; Bartley v. Richtmyer, 4 N. Y. 45; Bigelow Torts, p. 291.

Drop from the record in this appeal that Rachel A. Taylor was the plaintiff's daughter, and consider her only as a factory girl boarding in the house in which the plaintiff lived, and rendering his wife the voluntary services referred to, and who would then contend that this action could be maintained?

Mercer v. Walmsley, 5 Harr. & J. 33, 34; Postlethwaite v. Parks, 3 Burr. 1878; Satterwaite v. Dewhurst, 4 Doug. 315; McDaniel v. Edwards, 7 Ired. 412; Sutton v. Huffman, 2 Vroom (N. J.), 58, 62.

Plaintiff's third prayer was misleading. It allowed the jury to take into consideration the probable expense of supporting the illegitimate child, and to award damages therefor to the plaintiff, which they are not entitled to do.

1 Sedg. Dam. p. 146, note a.; 2 Id. p. 516; Hitchman v. Whitney, 9 Hun (N. Y.), 512; Sargent v. 5 Cow. 106.

Also to award damages for the breach of promise of marriage, for which the daughter had her separate right of action. This evidence, although admitted without objection, it was the duty of the court, ex mero motu, to exclude from the consideration of the jury in awarding the plaintiff damages.

2 Add. Torts, chap. 19, pp. 1096, 1097; 2 Sedg. Dam. 516, marg. p. 544; Sauer v. Schulenberg, 33 Md. 288; Dodd v. Norris, 3 Camp. 519; Elliott v. Nicklin, 5 Price, 641; Tullidge v. Wade, 3 Wils. 18; Gillet v. Mead, 7 Wend. 193; Foster v. Scoffield, 1 Johns. 296; Brownell v. McEwen, 5 Denio, 367; Whitney v. Elmer, 60 Barb. 250.

The broadest rule of damages yet suggested,

3 Suth. Dam. p. 739; Phelin v. Kenderdine, 20 Pa. 361.

Mr. Alex. H. Hobbs, for appellee :

As to the sufficiency of the service, and that slightest evidence will suffice to prove the relation of master and servant, see Greenwood v. Greenwood, 28 Md. 371; Keller v. Donnelly, 5 Md. 211, 218; Mercer v. Walmsley, 5 Harr. & J. 27, 33; White v. Chappell, 13 Gratt. 573, 574; and 32 N. Y. 232, 233.

Reasonable expectation of services or pecuniary aid is sufficient.

B. & O. R. R. Co. v. Mahone, 63 Md. 145147; Dalton v. South Eastern R. Co. 93 E. C. L. 296.

A condition or relation once established is presumed to continue, in the absence of testimony to the contrary.

1 Greenl. Ev. SS 41, 42 and 48; 4 Gill, 394; 7 Gill & J. 386; Wood, Pr. Ev. pp. 180-182. As to exemplary damage, see 5 Barb. 665, 666; 3 Suth. Dam. pp. 735, 737, 739, 741; 2 Greenl. Ev. § 579; 32 N. Y. 236–238.

Stone, J., delivered the opinion of the court:

So in the case of Mercer v. Walmsley, 5 Harr. & J. 27, the court said: "Any slight service will be sufficient to raise the inference of fact that she was his servant."

So in Keller v. Donnelly, 5 Md. 218, the court said: "The slightest evidence will suffice to prove the relation of master and servant."

The evidence of the services rendered so as to establish the merely technical relation of master and servant, is certainly in this case sufficient. According to her testimony she daily did some of the ordinary woman's work about the house. There are many cases to be found where the action has been sustained where the evidence of the service was much less than we find in this record.

Nor does it matter that the daughter was over twenty-one years of age. If the daughter is living with her father, rendering services, that connection is sufficient although she is over twenty-one years. Mercer v. Walmsley, 5 Harr. & J. 27.

etc.

The evidence shows that the daughter was over twenty-one years of age; that she was living and always had lived with her father and mother, but from the age of fourteen had been working during the day in the cotton mills at Woodbury, returning to the house of her father at night; that she received her own wages, and out of them clothed herself and paid her board to her mother, and sometimes assisted her mother in paying her rent; that the family consisted of the plaintiff, his wife and two daughters; that this danghter gave birth to a child at home, and was kept there about two months, and the doctor who attended her in her confinement had charged the bill to the plaintiff, which he had not paid.

It was further proved by the daughter that she was seduced at home and that when not working in the mill her father had no control over her and that whatever services she rendered were entirely voluntary. The evidence relating to the service is as follows:

The plaintiff says "That the said Rachel, after returning from the mill in the evening, would assist her mother in the work about the house, and when her mother was taken sick she made up her bed for her.”

The daughter herself says that in the morning before going to work at the mill, and in the evening after her returning she would assist her mother in her work about the house, and when her mother was taken sick she made up her bed for her; this is the evidence as to the services of the daughter.

It is well said by a learned author (Sutherland on Damages) that slight evidence is sufficient to establish the relation of master and

But the services of an adult daughter to the father must be voluntary, as he has no legal right to require them after her majority.

It is immaterial whether the services so rendered by the child are paid for or not, or whether any special contract existed. Lipe v. Eisenlerd, 32 N. Y. 229; Badgley v. Decker, 44 Barb. 577.

The other question argued by the appellant, that because the daughter in this case was engaged in the cotton mills, and paid her board at home, the plaintiff could not recover, is not tenable upon authority.

It was said in Mercer v. Walmsley, above quoted, that where the daughter is over twentyone years and living with her father, any slight act of service is sufficient to establish the relation of master and servant. In the common acceptation of the term, the place where the daughter boards and lodges is the place where she is said to live. She may work out by the day, but where she eats and sleeps is her home, and there she lives, more especially when that place is her father's house which has always furnished her with shelter. But ample authority is not wanting on that point.

The case of Rist v. Faup, 4 Best & S. 409, was this: The daughter lived in her father's family, and was always at home from 6 o'clock in the evening until o'clock in the morning, and while there assisted in the house work. That from 7 o'clock in the morning to 6 in the evening she was in the service of the defendant as a laborer on his farm. Held by the court, unanimously, that there was sufficient evidence to go to the jury.

The case of Badgley v. Decker, 44 Barb. 577, was this: The mother kept a boarding house,

So in the case of Villepique v. Shular, 3 Strobh. (S. C.) Law, 462, the daughter, over twenty-one, owned the house and furniture in which she and her mother lived, but she performed services for the mother. Held, that the mother was entitled to recover.

But this is not so. If the evidence is in the case, it must be considered and allowed its full force. Gibbbs v. Gale, 7 Md. 76.

Perceiving no error in the ruling of the court below on the second exception, the judgment must be affirmed

So in the case before us the fact that the daughter paid her board and sometimes aided in paying the rent shows that she was rendering a service to the family more important and commendable than the mere formal averment of the loss of service required in the declaration.

From the cases above cited we are of opinion that the court below committed no error in the rulings on the first bill of exceptions.

The second exception contains a prayer of the defendant which was refused, and a prayer of the plaintiff which was granted. We do not understand the appellant to make any serious contest about his second prayer which the court properly refused; but he insists that the prayer of the plaintiff contained in that exception should not have been granted. This prayer of the plaintiff, so granted, instructed the jury that it was competent for them to find such damage for the plaintiff as they may deem right and proper under all the evidence in the cause, provided they found the facts as stated in the plaintiff's first prayer.

The reason assigned why this prayer should not have been granted is that the jury might, under it, have taken into consideration the expense of supporting the child, or damage for the breach of a promise to marry, as something was said in the evidence about the defendant having been required to give bond for the support of the child, and a breach of promise to marry was proved by the plaintiff.

If, in a case of this sort, only legal testimony is before the jury, the instruction is clearly correct. But a prayer cannot properly be made to perform the office of an objection to illegal testimony. If any of the testimony offered by the plaintiff was not legal testimony in the cause, it was the duty of the defendant to object to its admissibility at the time it was offered. When the objection is to the evidence, if it is known or apparent, it must be taken before and not after it has gone to the jury. If unaware of the objection to the admissibility of such evidence at the time of its offer, he must raise his objection within a reasonable time thereafter. It is too late after the prayers have been granted by the court based upon the evidence, or the argument before the jury commenced. Dent v. Hancock, 5 Gill, 120; Davis v. Patton, 19 Md. 120.

No such objection having been made in the court below, this court, even if it was to concede that any of the evidence was inadmissible (which we by no means do) could not remedy the error. It was very ingeniously argued by

v.

James A. GOULD, Trustee.

The owner of a tract of land, on a plat of which a street called Henry Street was designated, but not then opened or used as a street, conveyed a portion of the land by a deed containing the following description: "Beginning at the corner formed by the intersection of the north side of Winder Street and the east side of Johnson Street, and running thence easterly binding on the north side of Winder Street 379 feet, more or less, to the corner formed by the intersection of Winder and Henry Streets; thence northerly binding on the west side of Henry Street 320 feet, more or less, to the corner formed by the intersection of Henry Street and Wells Street, as now laid out and widened; thence westerly binding on the south side of Wells Street*** containing_two and one half acres, more or less." Thereafter Henry Street was closed by the public authorities with the acquiescence of the then holder of the abutting lot conveyed by said deed. Held, in an action of ejectment by the original grantor, that said deed did not convey the fee in the road bed of Henry Street, and that, on its ceasing to be used as a street, the grantor was entitled to recover possession of the road bed to the center in front of said abutting lot, from the holder of said lot.

(Decided March 16, 1887.)

APPEAL from a judgment of the Baltimore City Court, in favor of plaintiff in ejectment. Affirmed.

Argued before Alvey, Ch. J., Miller, Bryan, Robinson, Stone and Irving, JJ.

In addition to the facts stated in the opinion, it appeared that by certain mesne conveyances the leasehold interest in the land conveyed to Preston, as stated in the opinion, became the property of the defendant in this action prior to 1874, and the defendant has ever since held possession thereof.

Messrs. John K. Cowen and Hugh L. Bond, Jr., for appellant:

At common law the title to the bed of a highway or fresh water stream is prima facie presumed to be in the owners of the adjacent land.

Salisbury v. Great Northern R. Co. 5 C. B. N. S. 174; Simpson v. Dendy, 8 C. B. N. S. 433; Berridge v. Ward, 10 C. B. N. S. 400; Micklethurait v. Nerlay Bridge Co. 55 L. T. 336.

Ex parte Jennings, 6 Cow. 518, 537, note a. So when land adjoining a stream or highway is conveyed, the presumption of law is that the conveyance is intended to carry the bed of the adjoining highway or stream to the center, unless there be something in the deed or the circumstances to show a clear intention to exclude the highway or stream.

3 Kent, Com. 433; Berridge v. Ward, 10 C. B. N. S. 400.

If a lot adjoining a highway be described by reference to a plat, the moiety of the highway will pass, although the lines of the lot as shown on the plat include no part of the highway. Banks v. Ogden, 2 Wall. 57 (69 U. S. bk. 17, L. ed. 818); Čox v. Louisville etc. R. R. Co. 48 Ind. 178; Kimball v. Kenosha, 4 Wis. 321; Pettibone v. Hamilton, 40 Wis. 402; Dubuque v. Maloney, 9 Iowa, 450; Berridge v. Ward, 10 C. B. N. S. 400; Watson v. Peters, 26 Mich. 509; Champlin v. Pendleton, 13 Conn. 23.

The Supreme Court of Wisconsin had before it this very question in Kneeland v. Van Valkenburgh, 46 Wis. 434, decided in 1879. The property was described as the tract of land "known as the east part of lot number 1," etc., "and bounded as follows: commencing at a point on the south line of Biddle Street," etc., thence running back from the street and around to Lake Street; thence northerly on the westerly line of Lake Street to the south line of Biddle Street; thence westerly on the south line of Biddle Street to the beginning." The court held that the adjoining moiety of each street passed by the description.

See also Woodman v. Spencer, 54 N. H. 507, and note thereon in 14 Am. Law Reg. N. S. 418; Salter v. Jonas, 10 Vroom, 469; Hinckman v. Paterson Horse R. R. Co. 2 C. E. Green, 75; Paul v. Carver, 23 Pa. 223; Cox v. Freedley, 33 Pa. 124; Transue v. Sell, 105 Pa. 604.

The decisions of the Courts of Massachusetts and New York are in conflict with those which we have cited.

Perley v. Chandler, 6 Mass. 454; Alden v. Murdock, 13 Mass. 256; Tyler v. Hammond, 11 Pick. 193, 213; Sibley v. Holden, 10 Pick. 249; Newhall v. Ireson, 8 Cush. 595; Phillips v. Bowers, 7 Gray, 21; Boston v. Richardson, 13 Allen, 146, 153; Webber v. Eastern R. R. Co. 2 Met. 151; Codman v. Evans, 1 Allen, 446; Jackson v. Hathaway, 15 Johns. 447; Kings Co. Fire Ins. Co. v. Stevens, 87 N. Y. 287.

The difference between the Massachusetts and New York Courts, on the one hand, and the other courts whose opinions we have cited, on the other, is exactly that between Judge Redfield's associates on the Vermont Bench and himself, in the decision of Buck v. Squiers, 22 Vt. 484.

In the note on Woodman v. Spencer, 14 Am. Law Reg. N. S. 418, Judge Redfield says: Many years back we had occasion to participate in the careful consideration of the question with able associates, with whom we could not agree, but who decided that the question

was one of intent merely, to be determined like any other question of construction, by the intention of the grantor, as drawn from the words of the instrument as applied to the subject matter."

Messrs. Charles Marshall and Thomas W. Hall, for appellee.

Irving, J., delivered the opinion of the court:

This was an action of ejectment brought by the appellee against the appellant, for the recovery of a strip of land, being the one half of the bed of "Henry Street," between "Winder Street” and "Mills Street," as those streets are laid down on "Poppleton's plat" of the City of Baltimore. Henry Street," however, was never actually opened by the city as a street or used as such, and had been in fact closed by order of the city council, and rejected as a street before the institution of this suit. The land on both sides of Henry Street, as laid down on Poppleton's plat (where the land sued for lies), belonged to Alexander Gould, Sr. By his will he gave it to trustees, with power to sell in whole, or in lots, as they thought best, and to open such streets as they thought proper. The plaintiff in this action (the appellee) is, by decree of the Circuit Court of Baltimore City, the legitimate successor to the trustees named in the will, who have either died or resigned. The originally appointed trustees sold to J. Alexander Preston a portion of this land, all of which at the time was unimproved land. In the report of sale, which was ratified by the court, the land sold to Preston is thus described: "All that parcel or square of ground situated in the City of Baltimore, and which is bounded by Winder Street' on the south, Johnson Street' on the west, Wells Street' on the north, and 'Henry Street' on the east." In the deed of the trustees to J. Alexander Preston for the property thus sold him, and dated the 2d of December, 1872, it is described as follows: "Beginning for the same at the corner formed by the intersection of the north side of Winder Street and the east side of Johnson Street, and running thence easterly binding on the north side of Winder Street 379 feet more or less to the corner formed by the intersection of Winder and Henry Streets; thence northerly binding on the west side of Henry Street 320 feet more or less to the corner formed by the intersection of Henry Street and Wells Street as now laid out and widened; thence westerly binding on the south side of Wells Street 379 feet more or less to the intersection of Wells and Johnson Streets; thence southerly binding on the east side of Johnson Street to the place of begining, containing 24 acres more or less."

As already stated, at the date of this sale and deed, the grantors owned the land on both sides of this projected "Henry Street."

Subsequently to this conveyance, to wit: in March, 1874, the trustees conveyed to the appellant the land on the other side of "Henry Street;" and by express description in that deed the conveyance was in terms "to the center of Henry Street."

It is an admitted fact in the cause that at the time of these deeds being executed Henry Street had not been opened as a public street, nor actually used as a public highway, and had