Culberson v. Ala. Const. Co

• Decision Date: 15 February 1907
• Citation: 127 Ga. 599,56 S.E. 765
• Parties: CULBERSON. v. ALABAMA CONST. CO.
• Court: Georgia Supreme Court

127 Ga. 599

56 S.E. 765

CULBERSON.

v.ALABAMA CONST. CO.

Supreme Court of Georgia.

Feb. 15, 1907.

1. Trial — Instructions — Applicability to Evidence.

Although the instructions of the court to the jury may state the law correctly, in the abstract, yet, if they are not authorized by the evidence in the case, they are erroneous, and, if it is not apparent that the jury could not have been misled by them are cause for a new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596-612.1

2. Parent and Child—Services— Payment— To Whom Made.

Where a minor son, without his father's consent, makes a contract for his services with a third person, and the father knows that he is in the employment of such person, and neither makes any objection nor demands pay for his child's services from such employer; there is an implied assent by the father than the son shall receive his earnings in such employment, [Ed. Note.—For cases in point, see Cent. Dig. vol. 37. Parent and Child, §§ 70-73.]

3. Same—Amount of Recovery.

Where a father sues one who, Without his consent, has employed his minor son, to recover the value of his son's services while employed by the defendant basing his action upon a contract implied from the circumstances of the case, and it appears that the employer, while such minor was engaged in his service, supplied him with necessaries for his support and maintenance, the recovery of the plaintiff should be limited to the reasonable value of the services, less the reasonable value' of the necessaries so furnished.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Parent and Child, § 83.]

4. Corporattons — Liabilities — Contracts

before Incorporation.

A corporation which lawfully acquires all the property of a partnership does not thereby become responsible for the partnership's debts.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, § 100.]

(Syllabus by the Court)

Error from City Court of Cartersville; A. M. Foute, Judge.

Action by A. Culberson against the Ala-, bama Construction Company. From a judgment in favor of defendant plaintiff brings error. Reversed.

Culberson, a resident of the state of Alabama, brought a suit, based on an attachment, in Bartow county, Ga., against the Alabama Construction Company, an Alabama corporation, doing business in that county, for the recovery of $450, alleged to be due him by the defendant for the services of his minor son. The petition, based upon the attachment, alleged that the defendant on July 1, 1903, employed Kirkland Culberson, the plaintiff's son, then under the age of 16 years, as a day laborer; that plaintiff protested against the employment of his minor son by defendant, and used repeated efforts to induce his child to return to his home, but that the officers and agents of the defendant company induced his child to remain in its employment and work for it, and that the boy did work for defendant from July 1, 1903, until March 1, 1905, for which the defendant was indebted to plaintiff $450, "the wages of his said minor child for said work, plaintiff alleging said services to be worth $1 per day." The defendant denied all the allegations of the petition, except the allegation as to the suing out of the attachment and the allegation that defendant had refused to pay plaintiff the sum sued for, or any other sum. Upon the trial of the case it appeared, from the evidence, that the plaintiff lived in Annis-ton, Ala., and that the services of his son, for which he sued the defendant, had been performed in connection with railroad construction work, at and near various other places in Alabama and Cartersville, Ga. It also appeared that this railroad work was first carried on, and the plaintiff's son first employed thereon, by a partnership, consisting of D. B. Lacy and Mrs. Susan E. Jones, doing business under the firm name of the "Alabama Construction Company, " and that later this partnership was succeeded by a corporation, incorporated in the state of Alabama, under the same name, upon the application of D. B. Lacy and three other persons, not including Mrs. Jones, which cor-poration—the defendant In this case—continued the work of railroad construction and employed the plaintiff's son thereon. The jury found a general verdict in favor of the defendant, the plaintiff moved for a new trial, which was refused, and he excepted.

Thos. W. Milner & Son, for plaintiff in error.

John T. Norris, for defendant in error.

EVANS, J. (after stating the facts). 1. Complaint was made in the motion for a new trial that the court erred in charging the jury that a father's parental power over his minor child Is lost, by voluntary contract releasing his right to a third person, by consent to the adoption of the child by a third person, by his failure to provide necessaries for his child, or his abandonment of his family, by his consent to the child's receiving the proceeds of his own labor, such consent being revocable at any time, and by cruel treatment of the child, and that it was for the jury to determine whether the plaintiff, in any one or more of these ways, had lost control of his b6*y. The assignment of error was that this instruction was erroneous, because "the issues before the jury, under the evidence, was whether or not the father had ever consented that his minor child [should] receive the proceeds of his own labor, and whether such consent had ever been revoked by the father; and there was neither contention nor evidence that the father had lost his parental control in any of the other ways mentioned by the court. The trial judge specifically approved this ground of the motion, and certified that the facts stated therein were true. So we must take the statement that there was no contention that the father had lost his parental power in any of the ways mentioned by the court, except by his consent to his son's receiving the proceeds of his own labor, as being true. It is evident from the excerpt from the charge set out in the motion for a new trial that the judge, in instructing the jury as to how parental power may be lost, read to them the provisions contained in the numbered paragraphs of section 2502 of the Civil Code of 1895 upon the subject, merely omitting paragraph 5 in reference to the loss of parental control by consent to the marriage of a minor child. He not only did this, however, but he instructed the jury that it was for them to determine "if this father, in any one of these ways, or any more of them, lost control of his boy." So he was not merely reading to the jury the provisions from this section of the Code as to the loss of parental power, in order that they might see that one of the ways in which such power may be lost is by the father's consent for his minor child to receive the proceeds of his own labor, but also in order that they might consider whether this father had lost control of his minor son in any one or more of the other ways mentioned by the court This construction of this portion of the charge is further shown to be correct by other excerpts from the charge upon which error was assigned in the motion for a new trial, wherein the Jury were instructed that if they found that the plaintiff had by voluntary contract released his parental right to a third person, or failed to provide necessaries for his child, or cruelly treated the child, or had "consented to his child being adopted by the defendant" he could not recover, and the jury must look to the evidence to see whether he had done either of these things. As there was neither contention nor evidence as to the loss of the parental power in any way save by consent to the son's receiving the proceeds of his own labor, the court erred in these instructions. It has been so long and so repeatedly held by this court that a charge abstractly correct but not warranted by the evidence, is erroneous, that we deem it unnecessary to cite any of the great number of cases to this effect. It not being apparent from the evidence that the jury could not have been misled by these repeated erroneous instructions of the court, a new trial should have been granted because of their existence.

2. Another assignment of error in the motion was that the court erred in Instructing the jury that If they believed that the plaintiff's minor son was in the employment of the defendant company "with the knowledge of the father, and the father did not complain nor demand payment for his services, such failure would be in effect a ratification of such employment, and the father could not recover." The error assigned was that this instruction "was inapplicable to the facts of the case, as well as an erroneous statement of the law." It was not Inapplicable to the evidence In the case, nor do we think it was an erroneous statement of the law. While the expression "ratification of such employment" may not have been strictly accurate in the connection in which it was used, the evident meaning was that, under the circumstances stated by the court the father would have impliedly assented to the employment of his son by the defendant Section 2502 of the Civil Code of 1895, as we have seen, expressly provides that the parental power of the father, including his right to the services of his minor child and the proceeds of his labor, may be lost by his consent to the child's receiving the proceeds of his own labor. The charge of the court in effect was that such consent of the father would be implied if he knew that his minor son had entered the employment of another, and with such knowledge, did not forbid such employment, nor demand payment for the services of his son. This charge of the court was in accordance with the rulings in Whiting v. Earle and Trustee, 3 Pick. (Mass.) 202, 15 Am. Dec. 207; Smith v. Smith, 30 Conn. 111; Armstrong v. McDonald, 10 Barb.

(N. T.) 300; Gale v. Parrott, 1 N. H. 28. In the case first cited the court said: "We go so far as to say that when a minor son...