133 Ky. 669 | Ky. Ct. App. | 1909
Opinion of the Court by
Revering-
,'TMs case presents the interesting question: What acts and conduct of a father will constitute an emancipation of his minor child so as to deny the father the rig’ht to recover the child’s wages during Ms minority?
We have in this state no statute upon the subject under consideration, nor has the question ever been directly decided by this court; but the subject of parent and child, and the reciprocal rights, duties, and ■obligations of each, has furnished so much interesting matter for text-hook writers, and has so frequently been considered by courts of other jurisdictions, that there is ample precedent and authority, both ancient and modern, from which to gather and formulate the general rules of law applicable to this relation. But this case presents some features of the law that ¡aire not so well settled, and concerning which there is conflict of authority. The duties and obligations of parent and child are, in a sense, at least reciprocal. Upon the parent is imposed by nature, as well as law, the obligation of supporting and caring for his offspring. As said by Blackstone (volume 1, p. 447): “The duty of parents to provide for the maintenance of their children is a principle of natural
It is equally well settled that the parent, although entitled to the services and earnings of his minor child, may relinquish or surrender this right: First, by failing to provide for his child a home if he is
There are two1 kinds of emancipation that may be termed “express” and “implied.” We should say that an “express emancipation” takes place when the parent freely and voluntarily /agrees with his child,' who is able to take care of and provide for himself, that he may go out from home and earn his own living /and do as he pleases with his earnings, or ■when he willingly transfers to another the custody and keeping of his child without reference to his age. Where the emancipation is expressly agreed upon, the parent cannot afterward renounce or set aside the agreement. Tie is bound by it to the same extent as he would be by any other contract freely entered into. The parent cannot, after deliberately surrendering parental control or relinquishing the right to another, reclaim the services of his child. An “implied emancipation” results when the parent, without any express agreement, ■ by his acts or conduct impliedly consents that his minor son may leave home
Contenting ourselves- with these broad statements of general principles, we will ■'■proceed 'to inquire whether the facts of this case authorize us in holding that the father had emancipated his’son. After Byrne had reached an age when he could make his own living, and w/a.s mentally and physically able to do so, his father ^voluntarily consented that he might leave, his home, and continue in the employment of .the Rounds Bros, for whom he-had been working, and for something like two years lie remained in their services, with the knowledge • and consent of his father. During this time he received- his own wages,
In our opinion these facts were not sufficient to establish an express emancipation -such as the parent could not afterwards revoke or set aside; but they do show the son left home under circumstances that amounted to an implied emancipation. But when the appellee attempted to resume parental control and authority after the expiration of more than a year, ¡it was too late to reclaim the right. In this time the interest and welfare of the child had become an important factor in determining the rights of the parties. In judging a case like this, the court will not look exclusively to the rights of the parent, but will consider what is best for the child. The father when his child Was in some me'asure at least a burden to him, voluntarily allowed him to go out and care for himself, 'and after the child, prompted by prudent and industrious motives, had became more than self-sustaining, sought to withdraw the consent he had given. To permit him to do so would, under
We do not wish to extend this .doctrine of implied emancipation to cases which do not justify its fullest application, and do not mean to hold that every time a child who is old and strong enough to work becomes tired of or dissatisfied with his home he may leave, although without objection on the part of his parents,- and live at some - other place and work for other persons, and thereby sever the obligation he owes to his parents and destroy their right to his services and wages. Minor children cannot in this wiay cancel the duty they are under to the parent, who by acting promptly may reclaim the services of the child and the right to his earnings; but the parent must interpose his authority within a reasonable time. When a father gives freedom to a grown boy (and tells him,- in effect, if not in words, to go out and make his own living, -and be his own man, and the boy acting on this implied consent or direction does commence for himself the battle of life, and is success-folly meeting all its requirements, the father will not, unless he acts in seasonable time, be permitted to reclaim the boy’s services or resume the parental authority he surrendered.
The conclusion we have reached finds support in the following authorities: In Abbott v. Converse, 4 Allen (Mass.) 530, the court said, in considering a similar question: “The basis of the father’s right to
In Nightingale v. Withington, 15 Mass. 272, 8 Am. (Dec. 101, Chief Justice Parker siaid: “But where the faither has discharged himself of the obligation to support the child, or has obliged the child to support himself, there is no principle, but that of slavery, which will continue his right to receive the earnings of the child’s labor. Thus, if the father should refuse to support a -son, should deny him a home, and force him to- labor abroad for his own living, or should give or sell him his time, as is sometimes done in the country, the law will imply ¡an emancipation of the son, and although it will not enable him to contract to his
The same, learned judge, in Whiting v. Earle, 3 Pick. (Mass.) 201, 15 Am. Dec. 207, said: “Although the general principle is clear that a father is entitled to the earnings of a son while, under age, yet the court thought it equally clear that he might transfer to-the son the right to receive them. This is necessary for the encouragement of young men, and it is often convenient for .a father, wishing to be relieved from the burden of. supporting his son, to allow him in this manner to support himself. Where such a contract is entered into without any fraud, for the advantage of the son, on the principles of common justice, ’and according to decided cases, he is entitled to the profits of his own labor. We go so far as to say that where a minor son makes a contract for his services on his own account, and the father knows of it land makes no objection, there is an implied assent that the son shall have his earnings.” To the same effect is Morse v. Welton, 6 Conn. 547, 16 Am. Dec. 73; Wodell v. Coggeshall, 2 Metc. (Mass.) 89, 35 Am. Dec. 391.
In Beaver v. Bare, 104 Pa. 58, 59 Am. Rep. 567, the court said: “The exercise of parental ¡authority is not necessarily for the profit of the piarent, but for the advantage of the child; the. duty of service by the child being deemed necessary to the proper exercise of parental authority for its own good. Although we still recognize, the right of the father to the personal services of his children, that right is simply incidental to the duty of the father to discipline and
In Schouler on Domestic Relations, p. 346, it is said: "The fialther may by 'his own delay forfeit the right of action for his son’s wages; as where the minor agrees to work at certain monthly wages to' be paid to himself, and the father, knowing- of the agreement, gives no notice ¡of his objection, but waits until the work has been done and payment is made to the child, before making ai demand. But if the father has given seasonable notice of his dissent and demand to the stranger hiring his son, the fact that the son continues to work against his express dissent, and that the stranger notified him to come and take his son away, and he neglected to do so-, will not preclude him from recovering the wages. ’ ’ And so on page 370 the learned author s'ays: "It is a well-settled rule in this country that if the parent absconds, turns his child out of doors, or leaves him to shift for himself, the son in entitled to his own wages and our courts .are very liberal in allowing children to avail themselves of any breach of parental obligation so as to earn an honest livelihood by their own toil. The presumption raised in such cases may be .termed a presumption of necessity. So where the husband abandons his child to the care of his mother, his subsequent claims for the earnings of either are to be regarded with very
In L. & N. R. R. Co. v. Davis (Ky.) 105 S. W. 455, 32 R. 306, which was an action by the father to recover damages for a personal injury sustained by his minor son while in the employment of the raülroad company, the court said: “Assuming that the boy Was under 21 years of age, did his father consent or acquiesce in his employment? It may be admitted at:the outset that the father did not know of the original employment, but his own testimony shows that, while his son was engaged ait work on the railroad in making .a fill, the father went out to where, he was at work and saw him! performing the duties of his employment. The father talked to the foreman, whom he told the boy was only 16 years of -age, and upon the foreman7» saying1 in reply that he hated to give him up, he was' such a good boy, the father left without slaying more, and went home. * * * Afterwards the father testified that his son came home on Sunday and then went back to work and the evidence shows without contradiction that the boy Was paid off several times before he was hurt. During all the time the father lived within 2y2 miles of where his son was working in the employ of the railroad, and made m> protest or objection to his remaining at work on the fill. We think that this was a consent on the part of the father 'to the employment of Ms son by the appellant. He had no right, if he objected 'to the employment, to remain silent about it until his son Was hurt; and 'then complain that the employment was without Ms consent. He allowed the
■ After canefnlly considering this case, our conclusion is that the father Avas not entitled to the wages earned by his son, and therefore, the whole court sitting, the judgment is reversed, with directions to'dismiss the petition.