Clasen v. Augusta Pruhs, By Henry Pruhs, Her Next Friend

• Citation: 95 N.W. 640,69 Neb. 278
• Decision Date: 03 June 1903
• Docket Number: 12,848
• Parties: MARGARET CLASEN v. AUGUSTA PRUHS, BY HENRY PRUHS, HER NEXT FRIEND
• Court: Supreme Court of Nebraska

95 N.W. 640

69 Neb. 278

MARGARET CLASEN v. AUGUSTA PRUHS, BY HENRY PRUHS, HER NEXT FRIEND

No. 12,848

Supreme Court of Nebraska

June 3, 1903

ERROR to the district court for Lancaster county: ALBERT J CORNISH, DISTRICT JUDGE. Affirmed.

Affirmed.

Thomas J. Doyle and George W. Berge, for plaintiff in error.

Jesse B. Strode and Edmund C. Strode, contra.

OLDHAM C., SEDGWICK, J. AMES and HASTINGS, CC., concur.

OPINION

OLDHAM, C.

This suit was prosecuted by the plaintiff below, a minor, by her next friend, to recover damages for alleged inhuman and cruel treatment suffered while in the care and custody of the defendant. It appears from the record that when plaintiff was about six years of age, she came with her brother from her home in Germany, with the consent of her parents, to make her home with the defendant, who was her maternal aunt, and resided near Hallam, Nebraska; that she remained under the care and protection of the defendant for six or seven years, when the defendant took her back to her parents in Germany and left her there. The following year the plaintiff returned with her parents to America and located near Hallam, and shortly after her return this cause of action was instituted. The allegations of inhuman treatment are that plaintiff was cruelly and unnecessarily tortured, beaten and whipped on numerous occasions and improperly clothed and fed by defendant while under her care and custody, and that such treatment resulted in permanent injuries to her health and growth; all of which was denied by the defendant. It is admitted that during the time the plaintiff lived with the defendant the relationship and authority of defendant over the plaintiff was that of parent over a child. So that the only question at issue in the case was as to whether the plaintiff was subjected to inhuman and brutal treatment in excess of the authority properly reposed in defendant during the time the defendant stood in loco parentis to the child. The testimony in the case is exceedingly voluminous and on many points is sharply conflicting. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 2,000, and defendant brings error to this court.

The first allegation of error to which our attention is called, is as to the right of plaintiff to prosecute this cause by her next friend; the contention being that the parents and not the next friend should have maintained the action. This was a suit for injuries to the person, and suits by next friend when brought for the benefit of an infant are provided for by section 36 of our code. It seems to be well established that infants have a right to sue by guardian or next friend, to recover damages done to their person or property by the tortious acts of another. Schouler, Domestic Relations (4th ed.), sec. 427; Kleffel v. Bullock, 8 Neb. 336, 1 N.W. 250.

The next contention is that as the defendant was charged with matters which, if true, would constitute an offense under the criminal code, it was necessary to prove the averments of the petition beyond a reasonable doubt, and that the court erred in telling the jury that it was incumbent on the plaintiff to prove the allegations of her petition by a preponderance of the evidence, instead of telling it that she must prove them beyond a reasonable doubt. This is asking for a rule not in force in this state, it having been uniformly held by this court, that a preponderance of the evidence proves an issue in any civil case. First Nat. Bank of Omaha v. Goodman, 55 Neb. 409, 75 N.W. 846. In Nebraska Nat. Bank v. Johnson, 51 Neb. 546, 71 N.W. 294, it is said:

"A plaintiff in order to recover the proceeds of property stolen by the defendant, is not required to prove the guilt of the latter beyond a reasonable doubt. It is sufficient if he establish the allegations of his petition by a preponderance of the evidence."

This instruction is also criticized because it is alleged that it assumes that plaintiff has sustained some injury and some damage. This is not a fair interpretation of the instruction. The injuries claimed by plaintiff are set out, and then the jury are told that it was incumbent upon plaintiff to establish these injuries and the damages resulting from them, by a preponderance of the evidence.

Paragraph 3, of the instructions given, is objected to because it tells the jury, in substance, that the relationship of plaintiff and defendant, being that of parent to child so far as the issues in this case are concerned, and the defendant having the care, custody and control of the child, it became the duty of defendant to exercise reasonable care over plaintiff and to so care and provide for her that she might and would, if possible, grow up to womanhood in good health and good character, and do this without treating her cruelly.

It is claimed that this puts an unreasonable and impossible burden upon a parent or one standing in loco parentis to a child, and that it would permit an action and recovery for damages at a suit of the child, if it should grow up without a good character, although the parent had used the utmost effort in that direction. We think this a very strained and unreasonable criticism of the instruction, and that no such possible interpretation could have been given it by a jury of sensible men, in a suit in which no damages were alleged because of the want of proper moral instruction to the child, and in which the only injuries complained of were physical torture resulting from cruel punishment and improper food and clothing.

Paragraph 4 is assailed because it tells the jury that cruelty would take place where one, charged with the duty of providing for and protecting another, would abuse her by whipping or punishing her unnecessarily or to excess, or either carelessly or purposely neglect to provide for her those necessaries of life consisting of food, clothing and shelter which her helpless condition would require. This instruction is followed by the 5th, which tells the jury that a discretion is given to a parent or custodian in respect to the character and quality of the food and clothing furnished children, and that it is only when a person, having the custody of a child, fails to provide that food and clothing which is necessary to the child's life or health, or proper growth and development, that such failure would constitute a wrong which the law recognizes. In the 6th paragraph the jury are told:

"One possessed of the duty of rearing a child has a right to give it moderate correction and punishment in a reasonable manner for the child's benefit, for its education and discipline. This would be for offenses on the child's part, such as disobedience, or where the child is guilty of something bad or immoral in its nature. Whipping or punishment, however, when administered to an extent greater than is reasonably necessary under the circumstances, would amount to assault, and when so administered one would be responsible for any damages arising therefrom as its proximate result."

All objections urged to these instructions will be considered in one body. It is conceded by counsel for plaintiff in error that the rule laid down in these instructions, as to the duty of a parent to provide suitable food and clothing for the child, is unobjectionable, but the contention is that there was no evidence in this case warranting an instruction on this question, and that it was prejudicial to the defendant to have this matter referred to in the instructions. We have examined the record, and we find that there is testimony offered by plaintiff which, if believed by the jury, would fully warrant a finding that at many times plaintiff was improperly clothed and insufficiently fed, while in the custody of defendant. A cause of action for this neglect of duty was not only alleged in the petition, but it was also supported by the testimony of four witnesses as found in the bill of exceptions. The objection, however, which is seriously and forcibly urged against these instructions is that they take a too much restricted view of the right of a parent, or one in loco parentis, to administer corporal punishment to a child. It is said in the brief that these instructions substitute the judgment of the jury for the judgment of the parent, in determining the necessity and extent of the punishment that may be administered for the good of the child. It is further urged that a parent ought to be considered as acting in a judicial capacity when he corrects his child, and should not be held liable, even if the punishment should appear to the triers of fact to be unreasonably severe and in no measure proportionate to the offense; that the only instance in which a parent should be held liable for the punishment of a child is when he acts in bad faith and from wicked impulses, and when the punishment is of such a nature as to seriously injure the life, limbs or health of the child. An instruction embodying this view of the law was requested by defendant and refused by the court, and the 4th, 5th and 6th instructions, above set out, were given in its stead. In addition to what is said in the brief, we have been urged in a most skillful and persuasive oral argument to withhold our commendation from the doctrine set forth in these instructions of the learned trial judge, which, counsel urge, place an unwarranted and unreasonable restriction upon parental authority in the matter of administering punishment for the welfare of a child.

That much of the welfare of society rests on the proper exercise of parental authority is self-assertive, but that there is and should be a reasonable limitation on the right of parents to punish their offspring, is an elemental principle of modern civilization. The question then is,...