Davis v. Carpenter

172 Mass. 167 | Mass. | 1898

Hammond, J.

The second plea was not in abatement, but in bar. It set out enough to show, not only that the present action could not be maintained, but that there was no cause of action under the statute. Allin v. Connecticut River Lumber Co. 150 Mass. 560. 1 Chitty, Pleading, (16th Am. ed.) 462. Grant v. Barry, 9 Allen, 459.

The issues raised by the first plea and this second plea were tried together without a jury, and the court, after hearing the evidence, “ overruled both pleas.” We do not understand by this entry that the ruling was that the facts set forth in the second plea would not, if proved, constitute a complete defence, but that the court found that the allegations of the plea were not all proved. The respondent excepted to this, as also to certain rulings made during the trial concerning the admission of evidence.

The only question really in dispute at this trial was whether at the time of making the complaint the complainant was, and thereafter continued to be, such a resident in this Commonwealth as to be able to maintain this action; and inasmuch as the child was begotten in Vermont, (the mother being then a resident and domiciled there,) and was born in Vermont, this was a vital issue. Grant v. Barry, ubi supra.

On this issue did the evidence warrant a finding for the complainant? We think it did. It is to be remembered that the object of the statute is to compel the father to assist the mother in the maintenance of the child, and to secure the municipality or State against any loss or expense for its maintenance. McFadden v. Frye, 13 Allen, 472.

The court might have found upon the evidence that before the day on which the complaint was made the father of the complainant told her that he could no longer support her; that she must earn her own living and might have her own wages, and that she must leave his house; that, thus being driven from the paternal roof, with the assent and assistance of her father she made an arrangement with the Browns to go and live with them in Clarksburg as their daughter; that in the forenoon of the day on which the complaint,was made, in pursuance of this arrangement and with the full assent of her father, she left her home in Vermont and came with all her personal effects to the house of the Browns in Clarksburg for the purpose of making her home with them in their family as their daughter, for an indefinite period and with no intent of returning to Vermont; and that at the time she made the complaint she was thus living with the Browns. The court might further have found that her subsequent visit to her father in Vermont was not for the purpose of resuming her relations with her prior home, but was simply for a temporary purpose, and that her home still continued with the Browns up to the time of the trial; that both father and daughter had determined that she should become a resident at Clarksburg with the Browns; and that all this was honestly done for the purpose of having a bona fide residence in Clarksburg.

Whether, she being a minor and her father still domiciled in Vermont, all this worked a change of her legal domicil it is not necessary to decide. She was residing here, and she was intending to continue to reside here. In fact she had no other place which she called or considered her home. If she had fallen into distress under these circumstances, it would have been the duty of the town or State to provide temporarily at least for her relief, and a like duty would have existed with reference to the child, if born alive. Pub. Sts. c. 84, §§ 14, 17.

Here, then, was a liability to be provided against by obtaining security from the putative father, and the case comes within the statute, so far as the residence of the complainant is material.

We see no error in the various rulings of the court as to the admission of evidence at the trial without a jury.

As to the admission of the letter of July 24 from Mrs. Brown, it is sufficient to say that its contents are not before us. The evidence that she had previously “ made her own trades ” for work she had done and “ herself received the pay therefor,” as well as that concerning the conversations with her father between the 12th and 27th days of July, and also that concerning the conversation which took place upon her arrival at Mr. Brown’s house, both as testified to by the complainant and her father, all had a bearing, at least, upon the relation she sustained to her father and the relation she sustained to the Browns, and as a part of the circumstances; and the same may be said of the evidence at the close of the cross-examination of the complainant. The conversation with the respondent and the fact that he left Readsboro were admissible, at least as bearing upon the question of her real purpose in coming to Clarksburg.

Upon the trial before the jury, upon the plea of not guilty, the respondent proposed to try anew the questions which had been raised and tried by the court without a jury. The court refused to permit him to do so, and excluded the evidence offered for that purpose. There was no error in this.

This is a civil suit, and the respondent, by proceeding to trial without a jury upon these issues, must be held to have waived whatever right he might otherwise have had to a jury trial upon them. Exceptions overruled.