Rankin v. Rankin, 83 Mo. App. 335

Rankin v. Rankin

83 Mo. App. 335 | Mo. Ct. App. | 1900

BOND, J.

The parties of this suit were married on the twenty-eighth of June, 1878, and lived as husband and wife *339jo- about ten years at DeSoto^ Missouri. Two children, a son and daughter, were bom of this marriage. On the fourteenth of March, 1899, defendant, who had moved to Texas, leaving -his wife and children in this state, obtained a divorce in the Texas court, on the ground of abandonment by his wife; neither she nor her children being within the jurisdiction of that court, no award of the custody and control of the children was mgde in its decree. The plaintiff in this case, who was the former wife -of defendant, engaged in teaching school at DeSoto and various other places, and was employed for two years as deputy clerk of a court, in New Mexico; with the sums thus realized, she fed and clothed her two children, with some little assistance from the grandfather (defendant’s father), at whose house the boy stayed when he was not with his mother or with his aunt; she sent them to the public school, paid their medical bills, and subsequently placed the daughter at the Lorettto Academy at Elorissant, Missouri, where she was ready to graduate about the time of the present-trial, and she also sent the boy to a college in Quincy, Illinois, where she obtained a scholarship f-or him, and subsequently when he was about seventeen years of age she sent him to New Mexico on account of his health to remain with his aunt, who was living there. Eor tbe sums of money expended in the nurture, support and education of these two children she brings this suit against their father.

The defenses set up in the answer were, first, that he had not been called on to contribute to the support of his children, and they had not been taught to respect him as their father, and that many of the items of the alleged indebtedness were barred by the statute of limitation of five years. There was a trial and the jury brought in a verdict making a finding in favor of plaintiff on the items sued for, which were not barred by the statute of limitation, in the sum of $1,125. Defendant appealed from a judgment thereon.

*340The first point insisted for a reversal is, that the petition did not state any cause of action. There is no merit in this contention. According to the statements of the petition, the defendant wholly failed to provide for the support, nurture and education of his two children after he left them in Missouri and went to Texas and obtained a divorce from the plaintiff, and wholly abandoned their custody to her, from whom they derived their sole support and education thereafter. If these allegations were true, she was clearly entitled to the judgment rendered in her favor, provided no prejudicial error was contained in the instructions of the court after the adduction of evidence (as 'has been shown by the record) tending to prove the facts stated in the petition. The law applicable to the foregoing facts, which appears in the pleadings and on the trial of this case, is plain and simple. When the defendant obtained a divorce from plaintiff under a decree making no award of the custody of the children, and left them to the care and nurture of his former wife, his liability for their support and education remained just as it had existed before the obtention of the divorce. This doctrine has been succinctly and clearly stated by a text writer of acknowledged authority in the following terms: “Parents are required by the law to maintain their offspring. They can not cast off the obligation by its neglect or by any other wrong. Commonly where this duty to a child exists, connected therewith is the right to its services. But a father who by ill doing forfeits his claim to its services and custody does not thereby free himself from his own duty of support.” 2 Bishop on Marriage, Divorce and Separation, sec. 1224; citdd with approval in Biffle v. Pullam, 114 Mo. loc. cit. 54; Chester v. Chester, 17 Mo. App. loc. cit. 659. The father is also made, by statute, primarily the guardian of his children and charged with the care of their persons, education and estate. R. S. 1899, sec. 3418. The neglect of this statutory duty in no *341wise relieves him from the charges incurred by others in the necessary maintenance of his offspring. The divorce from his wife, does not divorce him from his children. The future welfare of his children is the most powerful motive which nature and social duty implants in the bosom of the father. These obligations in the case at bar rendered it the duty of the defendant, to the extent of his liability, to rear and educate his children, which was none the less binding in that their custody was left with the mother. When this charge was neglected by him she seems to have consecrated her entire energies to its fulfillment. The money thus expended by her for a duty which he primarily owed, was just as legal a charge against him as if it had been contributed by a total stranger, for after the obtention of the divorce that was the legal status which she occupied towards the defendant. If a third party had supplied the children of defendant with the necessaries, a recovery might have been had to that extent without proving any further agreement than that implied by law for the ■fulfillment, of the father’s duty to the child, hence in this case there was no necessity for alleging or proving that the money furnished by the plaintiff was in accordance with an express agreement with' the defendant. If this were an action by the plaintiff to recover from her children expenses incurred in their nurture and education, a totally different rule would apply. In such case the legal presumption drawn from the relationship of mother and children would first arise that no charge was intended by the mother when the payments were made, and unless that could be overthrown by evidence satisfactory to the triers of the fact, no recovery could be had. But in the case at bar the plaintiff after her divorce was not a member of defendant’s family, nor did she bear any relationship to him which implied that future services or expenses incurred on his behalf were gratuitous. This distinction seems to have been overlooked by the learned-*342judge wbo gave an instruction in this case, that unless the jury were satisfied plaintiff intended to charge defendant for the matters in suit at the time she incurred the various items of expense, she could not recover. Such an instruction would have been correct in a case of a claim by a child against the estate of his parents, or vice versa. Ronsiek v. Boverschmidt’s Admr., 63 Mo. App. 421, and cases cited; but it is wholly inapplicable in the case at bar, where the parties to the suit bore no family relation or kinship which tended to imply that the items' sued for were expended without any expectation of reimbursement from the defendant. The instruction, however, was only erroneous in that it cast an additional burden upon the plaintiff. It was clearly nonprejudicial to the appellant and is therefore no ground for reversal. Lienee the judgment is affirmed.

Judge Bland concurs; Judge Biggs expresses his views separately.