Howell v. . Solomon
83 S.E. 609
N.C.
1914
Check Treatment
Walkee, J.,

аfter stating the case: We think the last ruling was a proper one, as it does not appear that plaintiff has brought her case within the terms or spirit of the Revisal, sec. 180, which is as follows: “In all cases where the surviving parent of any orphan child shall have willfully abandoned the care, custody, nurture, and maintenance of the child to kindred, relative, or other person, the parent shall be deemed to have forfeited all rights and privileges with respect to the care, custody, and services of such child.” There was no evidence that defendant was a surviving parent who had willfully abandoned his children. When he left his home, under compulsion, as he alleged, his wife was living, and continued to live for some time. When she died, the plaintiff took the two children into her own сustody and, as the jury must have found, if we construe the verdict in the'light of the evidence and the charge of the court, she prevented the defendant from having any access to them or from performing his parental duty of. support and maintenance. The case of Howell v. Howell, 162 N. C., 283, cited by the plaintiff’s counsel, is not in point, as it appeared there that the defendant had assisted his daughter, Mrs. ‍‌​​​‌​​​​‌‌‌‌​‌​‌​‌‌‌‌​‌​‌‌​​‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​‍Howell, in abducting the child, Lucy Howell, so that the plaintiff, her father, was thereby deprived of his rightful eus- *591 tody of ber, to bis injury and damage. Here a third party is suing tbe father, who is entitled to tbe custody of bis child unless be has in some way lost tbe right, and such is not tbe case here. Newsome v. Bunch, 144 N. C., 15. Tbe last case is much like this one in its general features. Many other authorities are to tbe same effect. 1 Blackstone (Sharswood’s Ed.), 452, and note 10; 21 A. and E. Enc., 1036; In re Turner, 151 N. C., 474; In re Jones, 153 N. C., 312; Littleton v. Haar, 158 N. C., 566; Howell v. Howell, supra. This right of tbe father continues to exist until tbe child is enfranchised by arriving at years of ‍‌​​​‌​​​​‌‌‌‌​‌​‌​‌‌‌‌​‌​‌‌​​‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​‍discretion, “when tbe empire of tbe father gives place to tbе empire of reason.” 1 Blackstone, 453; Newsome v. Bunch, supra. Where there is a contest for tbe custody of tbe child between those asserting conflicting rights to tbe same, tbe courts have, in modern times, adоpted tbe rule stated by tbe great Chancellor Kent: “Tbe father, and on bis death tbe mother, is generally entitled to tbe custody of tbe infant children, inasmuch as they are their natural protectors, for maintеnance and education. But tbe courts of justice may, in their sound discretion and when tbe morals or safety or interests of tbe children strongly require it, withdraw tbe infants from tbe custody of tbe father оr mother and place tbe care and custody of them elsewhere,” which was approved by this Court in Latham v. Ellis, 116 N. C., 30. See In re Turner, supra. Tbe father may forfeit or surrender bis right, as tbe above authorities declaró, but there has been no such loss or abdication of bis right in this case, as appears from tbe facts in tbe record. ‍‌​​​‌​​​​‌‌‌‌​‌​‌​‌‌‌‌​‌​‌‌​​‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​‍Plaintiff alleges, and testified, that instead of surrendering bis right to plaintiff, she bad given up tbе children voluntarily to him and be carried them away with ber free consent.

As to tbe first cause of action, plaintiff objected to- tbe deposition of tbe defendant being read, because of an agreement that she should waive all irregularities in tbe taking of it, and that it should be opened and read subject to ber objections and exceptions. It may be admitted thаt this condition extended to objections made at tbe trial, and was not restricted to those already noted in tbe deposition, and we are inclined to think this is correct; but if it is so, tbe plaintiff was given tbe full benefit of this construction of tbe stipulation. 'The objections were noted, passed upon, and overruled. They were directed chiefly to tbe leading charactеr of tbe questions. It was a matter addressed to tbe sound discretion of tbe court whether this kind of examination should be permitted, under tbe peculiar circumstances, and tbe exercisе of this discretion is not reviewable, except in case of gross abuse', which does not appear in this instance. Jones on Evidence (2 Ed.), sec. 819 (319), where tbe author says, quoting and indorsing whаt bad been said in Best on Evidence (10 Ed.), see. 641: “It should never be forgotten that ‘leading’ is a relative, not an absolute, term. There is no such thing as *592 ‘leading’ in tbe abstract, for tbe identical form of quеstion which would be leading of tbe grossest kind in one case or state of facts might not only be unobjectionable, but the very fittest inode of interrogation in another. Tbe subject is one of judicial discretion, and tbe allowing or refusing leading questions is not generally a ground for appeal. If, however, there appears a clear atuse of discretion, it is ground for exception and reversal.” N. Pac. Ry. Co. v. Aslin, 158 U. S., 271; Crenshaw v. Johnson, 120 N. C., 270. And it is said to be especially a matter of discretion where ‍‌​​​‌​​​​‌‌‌‌​‌​‌​‌‌‌‌​‌​‌‌​​‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​‍tbe witness is examined on written interrogations. Holmes v. Clisby, 131 Ga., 241. See, also, Jones on Evidеnce, sec. 819, and notes, where many cases upon this subject are collected.

In tbe first cause of action plaintiff sought to recover, as upon a quasi contract, for services rendered and money expended in tbe support, education, and maintenance of tbe two children of tbe defendant, a duty which was owing by him to them, and as she bad performеd this legal obligation for him, she claims that the law raises an assumpsit on his part to reimburse her. If these were all of the facts, her conclusion ‍‌​​​‌​​​​‌‌‌‌​‌​‌​‌‌‌‌​‌​‌‌​​‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​‍would not be questioned. But there are othеr important and material facts which the jury have evidently found against the contention of the plaintiff. The general doctrine stated by plaintiff’s counsel is fully sustained by the authorities discussed in their well prepared brief. 2 Kent Com., 193; Tyler on Infancy, 114; 29 Cyc., 1609; Hagler v. McCombs, 66 N. C., 346; Honeycutt v. Thompson, 159 N. C., at p. 31; Dennis v. Clark, 2 Cush. (Mass.), 347; Johnson v. Barnes, 69 Iowa, 643; Courtwright v. Courtwright, 40 Mich., 633; Van Valkinborough v. Watson, 13 Johns. (N. Y.), 480; Gilley v. Gilley, 79 Me., 292; McCarthy v. Hinman, 35 Conn., 538; 5 Wait Aclin and Def., 50; 28 A. and E. Anno. Cases, 296, 1913 C.; 1 Blackstone, 446; Porter v. Powell, 7 L. R. A. (O. S.), 176, and notes. These citations fully explain and fairly illustrate the principle. But the court, as will be-seen by referring to the extract from the charge given above, instructed the jury, not only fully, but carefully, and in exact accordance with the conceded principle cоncerning the legal duty of a father towards his children in respect of their support, maintenance, and education. The ground of his liability could not well have been more complеtely covered. The plaintiff should have found fault with the verdict, and not with the charge, and this is the course she pursued, as she moved to set aside the verdict; but whether this should be done when it is agаinst the weight of the evidence is a matter entirely within the discretion of the lower court, and we have no power to do so, nor generally to review the ruling of the trial judge. The question of defendant’s liability was fairly submitted to the jury, under correct instructions, and the verdict must stand, as being a final decision upon the facts.

*593 It may be that the verdict should have been otherwise than it is, and thаt the defendant should have been held liable to the plaintiff for something; but we cannot come to the aid of plaintiff under the circumstances, although the evidence may have lеft that impression upon us, for we have only to do with the law, leaving the facts to be found by that tribunal which has been so wisely and fortunately appointed by the law for the purpose. The dеfendant alleged and testified that he was perfectly willing to support and maintain his children, but was actually prevented from doing so by the gross misconduct of the plaintiff, due to her infirmity of disposition, or temper, and her unjust and gratuitous interference with his domestic affairs, driving him from his home, which she had made unhappy by her intolerance, quarrelsome disposition, and completе domination, and that she, in various ways, not only obstructed him, but rendered it impossible for him to get possession of his children, or communicate with them, so that he could perform his legal duty to them, whеn he was at all times ready and willing to do so. If this is true, and the jury found it to be so, she will not bé permitted to take advantage of her own wrong. There was also evidence of a rather convincing character that she had not taken good care of the children, and by reason of her indifference to and neglect of their educational, moral, and religious training, she was not a proper person to have their custody. They roamed about the streets, poorly clad, and without any show of restraint, where their morals were apt to be corrupted by association with evil-minded persons, and in other respects they failed to receive that attention and oversight which was so essential, especially at their tender agе, to the proper formation of their character and to their education and correct discipline. There was also evidence that they now have a good homе with their father, where they are contented and happy and receiving the benefit of a father’s care and devotion. The jury were doubtless greatly influenced by these considerаtions in returning the verdict which is now attacked, and perhaps it is a just and righteous one. There is a strong presumption that it is so. It may be that the father, not willing to act longer in resentment towards the plaintiff, and while not legally bound to do so, will yet make some fair allowance for her care of his children, as a moral obligation resting upon him, actuated more by a generous and chivalrous spirit than a mere insistence upon his strict legal rights. This obligation, if it really exists, we cannot enforce, but her services have been of some benefit to his children and to him, and it is not improper to remind him that our legal is not always commensurate with our moral duty.

We have found no error .in the rulings and charge of the court to which exceptions were taken.

No error.