Holland v. Hartley

Decision Date19 April 1916
Docket Number(No. 371.)
Citation88 S.E. 507
CourtNorth Carolina Supreme Court
PartiesHOLLAND. v. HARTLEY.

Appeal from Superior Court, Forsyth County; Cline, Judge.

Action by Mrs. Mary Holland against J. A. Hartley. Judgment for defendant, and plaintiff appeals. No error.

This is a civil action, tried at November term, 1915, superior court of Forsyth county, Cline, Judge, upon these issues:

(1) Had the defendant's son, Ira Hartley, been emancipated by the defendant at the time the unpaid board bill was made? Answer: Yes.

(2) Is the defendant indebted to the plaintiff, and, if so, in what amount? Answer: None.

From the judgment rendered, plaintiff appealed.

S. J. Bennett, of Winston-Salem, for appellant.

Walser & Walser, of Lexington, for appellee.

BROWN, J. This action is brought to recover of the defendant a board bill for his minor son. The plaintiff rests her case upon two grounds:

First. That the son was not emancipated by the father, and consequently that the father is liable for the support of his minor son. His honor very properly placed the burden of proof upon the defendant to satisfy the jury by a preponderance of evidence that the son had been emancipated from the control of his parent The evidence tends to prove that the child left his father's roof when he was about 18 years old by an agreement with the defendant that the son was to have all his earnings, make his own contracts, and receive his own wages. All the evidence tends to prove that the lather permitted his son to work for himself, to re-main away from the parental roof, and to receive and spend the earnings of his own labor. There is no evidence in the record which tends to contradict the testimony of the father to that effect It is well settled upon such state of facts that the father has released his parental control and is not liable for the care and maintenance of his child. Daniel v. Railroad, 170 N. C. —, 86 S. E. 174; 29 Cyc. 1626; Lowrie v. Oxendine, 153 N. C. 268, 69 S. E. 131. In our view of the case, the judge might well have charged the jury that if they believed the evidence, in any view of it, they should answer the first issue, "Yes." This renders it unnecessary to discuss the prayers for instructions upon the first issue.

Second. Th'e plaintiff contends that there was an express promise upon the part of the defendant to pay the son's board. There is evidence tending to prove that the defendant told the plaintiff that he did not want his son turned off from her house because it would discourage him, and said to her: "Wait, and I will see that you get the money." The plaintiff further testified that the last time, the defendant came to see her, "I asked him what to do about the boy, and he said he was going to take the boy home and let him rest a week, and said, 'When he comes back, he will be prepared to pay you some.' The boy left with his father, went home and stayed about a week, came back and stayed two weeks with me, after that, and never did pay money to me. I finally told him that I could not keep him longer, and for him not to go to his room and get his clothes. When he came to get the boy's clothes, he and the boy came together, and ...

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