Brosius v. Barker

• Decision Date: 03 April 1911
• Citation: Brosius v. Barker, 136 S.W. 18, 154 Mo. App. 657 (Mo. App. 1911)
• Parties: BROSIUS v. BARKER.
• Court: Missouri Court of Appeals

136 S.W. 18

154 Mo. App. 657

BROSIUS v. BARKER.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. PARENT AND CHILD (§ 3)—SUPPORT—LIABILITY OF PARENT.

The general rule is that the father is under a legal obligation to maintain and support his infant child.

2. PARENT AND CHILD (§ 16)—EMANCIPATION BY PARENT.

Complete emancipation is an entire surrender of all the rights to the care, custody, and earnings of the child, as well as a renunciation of parental duties, and the test to be applied is that of the preservation or destruction of the parental and filial relations.

3. PARENT AND CHILD (§ 16)—EMANCIPATION BY PARENT—EXPRESS AND IMPLIED.

There are two kinds of emancipation, express and implied. Express emancipation takes place when the parent agrees with his child, who is old enough to take care of and provide for himself, that he may go away from home and earn his own living, and do as he pleases with the fruits of his labor. Implied emancipation is where the parent, without any express agreement by his acts or conduct, impliedly consents that his infant child may leave home and shift for himself.

4. PARENT AND CHILD (§ 16)—EMANCIPATION BY PARENT—EVIDENCE.

Emancipation need not be evidenced by any formally executed instrument, or by any record act, but is a question of fact which may be proven from circumstances; and direct proof is not required, but it is never presumed.

5. PARENT AND CHILD (§ 3)—ABANDONMENT OF PARENT—LIABILITY OF PARENT.

Where a child who is physically and mentally able to take care of himself has voluntarily abandoned the parental roof, and has gone out to fight the battle of life on his own account, the parent is under no obligation to support him.

6. PARENT AND CHILD (§ 3)—ABANDONMENT OF PARENT—LIABILITY OF PARENT—DEALING WITH INFANT.

Every person who deals with an infant is bound, at his peril, to inquire and ascertain the real circumstances of the infant before he can hold the parent liable for the child's support.

7. PARENT AND CHILD (§ 3)—ABANDONMENT OF PARENT—IMPLIED LIABILITY OF PARENT.

The liability of the father on contracts made by the infant is to be determined by the rule relating to master and servant and principal and agent. The father is only held liable on the theory that the infant was authorized, either expressly or impliedly, to bind the father. Where the father by his conduct has compelled the child to leave home, the law implies that the father in so doing still intended that his child should not suffer, but should be supplied with the necessaries of life.

8. PARENT AND CHILD (§ 3)—ABANDONMENT OF PARENT—LIABILITY OF PARENT—MEDICAL ATTENDANCE.

Where plaintiff knew, at the time defendant's son applied to him for medical attendance, that the boy was not living with the parent and that the father was living in this state, an arrangement between the father and son, by which the boy had left home, and the father released from his son's liabilities, should have been inquired about before rendering the services on the father's credit; and it was not necessary that plaintiff should have actual knowledge thereof to absolve the father.

9. PARENT AND CHILD (§ 3)—LIABILITY OF PARENT—PROMISE OF FATHER—EVIDENCE.

A father wrote to a hospital where his minor son was being treated: "I have a dear boy in your institution sick with fever. I have sent him some money and will send more soon. You will give him all the attention you can and greatly oblige a father so far away, and kindly let me know from time to time how he is getting along." When this letter was written, a contract existed between the plaintiff and the defendant's son relating to the services sued for, and there is no evidence that the letter changed the relation of the parties or the terms of the contract, or that any additional attention was given the boy on account thereof. Held not a promise in writing by the father to pay for the services.

10. PARENT AND CHILD (§ 3)—EMANCIPATION —EVIDENCE.

In an action by a physician against a parent for medical attendance rendered to defendant's infant child, evidence held sufficient to require the submission to the jury of the defense of emancipation.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Action by F. C. Brosius against J. H. Barker. From a judgment for defendant, plaintiff appeals. Affirmed.

A. H. Buchanan, for appellant.

GRAY, J.

The defendant is the father of Norman Barker, who was of the age of 20 years in 1907. Some time in June of the year just mentioned Norman left his father's home in Douglas county, this state, and went to the state of Oregon. On September 4, 1907, he was sick with typhoid fever and entered a hospital, and was there cared for and treated for said disease until October 19th of that year. The plaintiff at said time was a duly licensed and practicing physician in said state, and treated the defendant's son during said sickness, and claimed that the reasonable value of the services so rendered was $145. There were also hospital fees of the alleged value of $90 incurred by Norman during his sickness. The hospital was controlled by a corporation and its account was assigned by it to the plaintiff. There was paid on the hospital bill the sum of $50.

Plaintiff's petition is in two counts. The first for his own services, and the second for the balance due on the assigned account. The answer, in addition to a general denial, alleged: "That long before the times mentioned in plaintiff's petition, this defendant, as such father of said Norman Barker, emancipated said Norman Barker, and discharged him from any liability to said defendant for services and gave to said Norman Barker the full right to control his own property, earnings, and wages and to do such things as he might choose, the same as though he were of full age."

The plaintiff offered testimony tending to prove his account. He testified that when the young man came to see him he had typhoid fever, and claimed to be without money, and that he sent him to the hospital and assumed the charges due the institution for the care of the patient.

The defendant testified that his wife died in 1904, and that the boy remained with him under the relation of parent and child until some time in 1906, when he became dissatisfied, and an arrangement was made by which the boy worked for him from that time until June, 1907, for $1 a day, and the son paid him for boarding him; that the boy left home on the 10th of June, 1907, and went West; and that he did not receive any of his wages while he was away, and considered the young man had started out for himself.

Norman testified that he had been working for himself for about four years; that before he went West he worked for his father for $1 a day, and paid his father for his board; that when he went West he worked in a wood camp, cutting wood for $1.25 a cord, and that he did not send any of his wages to his father; that when he went to the hospital he went to see the plaintiff, who was intending to send him to the county hospital, and after they had talked awhile he asked plaintiff what would be the charges at the local hospital, and was told not to exceed $25 a week, including the doctor's bill; that in conversation with the plaintiff he told him he thought he could get the money from his father to pay the bill; that he wrote to his father and he sent him some money, and he paid the same on his bills at the hospital.

The plaintiff requested the court to instruct the jury that the services sued for were necessaries, and the defendant was liable therefor to a reasonable amount, and that it would make no difference if the jury found the defendant had emancipated his son. The court refused the instructions, whereupon the plaintiff asked the court to instruct the jury that, before the jury should find a verdict for the defendant on the theory that he had emancipated his son, they must find that plaintiff had knowledge of such emancipation at the time the services were rendered. The court refused to so instruct, whereupon the plaintiff asked the court to instruct the jury that, if they found from the evidence that the defendant, during the time plaintiff was treating his son, promised to furnish any money to his son to pay for said services, then he had waived his right to defend on the ground that he had emancipated his son. The court refused all of said instructions and submitted the case to the jury on the theory that the defendant was liable, unless the jury found that the son had been emancipated.

The general rule is that the father is under a legal obligation to maintain and support his infant child. The child comes into the world absolutely helpless and incapable of protecting itself. No creature is more helpless at birth than the human being, yet in some jurisdictions the courts hold that parents who have bestowed life, and have brought into the world these helpless creatures, are under no legal obligation to support or preserve them during the dependent period of their existence. Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499; Gordan v. Potter, ...