Cafaro v. Cafaro

• Decision Date: 12 April 1937
• Docket Number: No. 43.,43.
• Citation: 191 A. 472
• Parties: CAFARO v. CAFARO.
• Court: New Jersey Supreme Court

191 A. 472

CAFARO

v. CAFARO.

No. 43.

Court of Errors and Appeals of New Jersey.

April 12, 1937.

Appeal from Supreme Court.

Action by Bettie Cafaro against Guido Cafaro, an infant, by his guardian, Ciro Cafaro. From a judgment of the Supreme Court (14 N.J.Misc. 331, 184 A. 779), reversing a judgment of the court of common pleas in favor of the defendant, the defendant appeals.

Judgment of Supreme Court reversed and judgment of court of common pleas affirmed.

Townsend & Doyle, of Jersey City (Mark Townsend and Thomas F. Doyle, both of Jersey City, of counsel), for appellant. Louis Santorf, of Paterson, for respondent.

HEHER, Justice.

Parental emancipation was unknown to the common law. Although it ordinarily relates to the services and earnings of the child and the right to sue and recover therefor (e. g., Costello v. Prospect Brewing Company, 52 N.J.Eq. 557, 560, 30 A. 682; Snediker v. Everingham, 27 N.J.Law. 143, 148), and, so confined, is termed partial emancipation (20 R.C.L. 608, 609), in its general sense it signifies a surrender and renunciation of the correlative rights and duties touching the care, custody, and earnings of the child. Campbell v. Campbell, 11 N.J.Eq. 268, 272; Overseers of Poor of Alexandria Tp. v. Overseers of Poor of Bethlehem Tp., 16 N.J.Law, 119, 31 Am.Dec. 229; Brown v. Ramsay, 29 N. J.Law, 117; Delaware, L. & W. R. Co. v. Petrowsky (C.C.A.) 250 F. 554; Inhabitants of Carthage v. Inhabitants of Canton, 97 Me. 473, 54 A. 1104; 46 C.J. 1342-1343. Borrowed from the Roman law, the term imported under that system full enfranchisement by the father.

Upon attaining majority, but not before, the child may elect to sever the relationship, and the concurrence of the parent is not essential to render it effectual. Overseers of Poor of Alexandria Tp. v. Overseers of Poor of Bethlehem Tp., supra; Brown v. Ramsay, supra. The law raises a presumption against emancipation of a minor child; and thus there is laid upon him who asserts it the burden of establishing, by competent evidence, the requisite parental consent thereto, either express or implied.

Here, there was no evidence of voluntary parental emancipation, either general or special; nor is this fairly to be implied from the circumstances. Non-emancipation conclusively appeared.

The family comprised the parents, three daughters, two of whom were minors, and the infant defendant; and it is indisputable that at all times pertinent to this inquiry they worked for their joint interest. The parents were thrifty. They conducted a grocery business in the family habitat, while the father also worked in a mill nearby. And, for a period of fourteen years, it had been their practice to attend Italian festivals in the surrounding communities, and there merchandise food and other commodities in demand on such occasions. The mother and son were returning to their home from such a festival, held in Union City, at the time of the occurrence giving rise to this action. She managed these businesses, and was the family treasurer. The children, including the adult daughter, turned over their earnings to her. She banked and disbursed the income of the business, as well as the family earnings.

While the trial judge, in disposing of evidentiary objections interposed by respondent, unduly circumscribed appellant's counsel in his efforts to establish the relationship of the parties, these uncontroverted facts appeared: For a period of a year or more, the infant defendant was employed at a neighboring dye works; and, while so employed, he delivered his entire earnings to his mother, receiving from her two or three dollars weekly for "spending money." Two weeks before the mishap made the basis of this suit, his employment was terminated by a strike, and thereafter he served his parents in the grocery business. The same weekly "spending" allowance was made while he was so engaged. Although plaintiff testified that, for this service rendered by the infant defendant, she "would give him twelve or thirteen dollars a week," what she later said by way of amplification discloses that this was but an afterthought, purely interpretive in character, unfounded in fact, and evidently designed to lay the foundation for the claim that, in respect of the infant's services and earnings, the family tie had been severed, and he was therefore the master of his own affairs; and thus this piece of testimony was valueless as evidence to support a finding of emancipation. This is emphasized, and the relationship given character, by the uncontroverted proofs that, while his earnings at the mill varied between ten and twenty dollars per week, the mother made to him the same weekly allowance of two or three dollars, "to go out and have some fun with."

Admitting that the infant's entire earnings were turned over to her, the mother testified thus: "I would give him three or four dollars for spending money, and the rest I would keep for his board and clothing. * * * Q. And did that apply to your grocery store also? A. There was hardly any profit in the store. We would pay the interest and pay the taxes and feed the children with it and everybody would eat there and that would be the money. * * * Q. Well, the fact is, you used to dress him and feed him, did you not? A. When he was working, yes; when he was small, just the same as when he did not work. * * * He would bring me the money and I would buy everything." Concededly, the parents recognized and discharged the self-same obligation to provide respondent with food and clothing, and to furnish him with spending money, while he was unemployed.

We perceive in these circumstances no rational basis for a finding of emancipation either general or limited. Whether the minor child be employed at home or abroad, the mere allowance of "spending money" from his earnings, contributed to his parents, is not, without more, sufficient to sustain an inference of emancipation. This is the generally accepted rule. Schouler on Domestic Relations (6th Ed.) § 808. Such course of conduct is entirely consistent with the continued subjection of the minor child to parental care and control, and is therefore not a manifest of intention to effect emancipation within the intendment of the law; rather it definitely...