247 S.W. 213 | Mo. Ct. App. | 1923
This is an action by a father to recover the value of his minor son's services rendered to defendant while in the latter's employ. There was a verdict and judgment for plaintiff in the sum of $500 and defendant appealed.
The son was born in 1903. In 1906 when he was three years old his mother died, and his paternal aunt took him into her own family where he thereafter lived, the aunt and her husband supporting him, sending him to school and caring for him as though he were their own child. This was with the father's whole-hearted consent, for, after the mother's funeral, the father told his sister "to take the boy and do by him as she would by one of her own children." The father never paid anything for the boy's maintenance or support. He does say that once he bought the boy a shirt (the price of which he does not remember), and once he paid $3 on a *103 doctor's bill, and at another time he gave the boy $5 in money. This was all the father did during a period of fifteen years prior to the boy's death which occurred in his 18th year as hereinafter related. Plaintiff admits that he never at any time paid anything for the boy's keep, his schooling or education. The father says he heard at various times that the boy was selling newspapers about town — Jefferson City; that he thought the boy was at work and wanted him to be, as he didn't want him to be "lazying around." He says also that he never had any idea of demanding money from the boy's aunt or her husband if he worked for them and never demanded of the boy any of his money, because "I didn't think I was entitled to it" and "didn't really want it." He says that had his son lived he would never have taken the boy's wages from him, and admitted that it was only after the boy's death that he made up his mind to demand his son's wages.
In May, 1918, the boy being then fifteen years old, left his aunt's home and some time in that month appeared at the defendant's camp near Huntsdale, Missouri, saying he was hungry and desired work. He told defendant he had no one to support him, that he had to make his own living, that he couldn't get along with his father and had made his home with his aunt. He was given work as a water boy and worked for defendant until some time in October, 1918. From that date until August, 1920, he did not work for defendant but "batched" with a man by the name of Kimberlin and was engaged in trapping in winter and raising watermelons in summer.
In August, 1920, the boy again entered the employ of the defendant and continued in its employ until in April, 1921, when he fell from one of defendant's barges into the Missouri river and was drowned. The aggregate of all the wages he earned was $1266.75 which, less certain deductions for board and other miscellaneous items, was paid to him in cash by defendant.
It is urged that under the father's own showing he *104 is not entitled to recover and that, therefore, defendant's demurrer to the evidence should have been sustained.
We think the point is well taken and that it should be upheld. A parent's right to the services and earnings of his minor son are not absolute, but contingent upon his actually providing support for the infant and retaining parental control over him. [Chaloux v. International Paper Co.,
It is manifest from plaintiff's own testimony also that the father knew the boy was working and earning money and that he never intended to take any money from the boy, that he didn't consider himself entitled to it, never made any demand for his wages and never intended to do so, and did not conceive the idea of demanding the boy's wages until after the boy was dead, when no loss would be inflicted on the boy thereby. When interrogated as to whether he would have asked that the money be taken away from him he said "No, I wouldn't take the money — to be taken away from him." *105
Not only does it appear that the father is not in a position to recover the past wages of his son because he has not performed the correlative duties entitling him thereto, but it would seem that there was an emancipation from the father's control. Such can be shown not only by express agreement, but also by conduct from which it is implied. [McMorrow v. Dowell,
Whether the father in the case at bar could have revoked his emancipation and relinquishment of his son's earnings is a matter we need not enter into. The fact is that he did not do so. This is not a suit against the defendant for the death of the son whereby the father is deprived of the right to the boy's future earnings until his majority. It is for the past wages of the boy, earned by him during the time when the father had not done anything for years to entitle him to any claim on his son's earnings, when he had no intention of making any claim thereon, did not think he was entitled thereto, and would not have taken them so long as it was a taking of the earnings away from the boy himself. But now that the boy is dead and an assertion of parental rights will not take anything from him, the father proposes to assert such rights and compel the defendant to again pay the son's wages to him, when for years he has done nothing entitling him to those rights. We do not think he should be allowed to do this.
The judgment is reversed. All concur.