Culberson v. Alabama Const. Co.

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

56 S.E. 765

127 Ga. 599

CULBERSON v. ALABAMA CONST. CO.

Supreme Court of Georgia

February 15, 1907

Syllabus by the Court.

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.

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.

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.

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

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

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

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 boy. 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. Y.) 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 makes a contract for his services on his own account, and the father knows it, and makes no objection, there is an implied assent that the son shall receive his earnings." In the Connecticut Case: "The plaintiff's minor son agreed with the defendant to work for him for the season, at certain monthly wages, to be paid to the minor. The plaintiff, who lived near by, knew of the agreement, and, that his son was working for the defendant, but made no objection and gave the defendant no notice that he should demand his wages. After the work had been done, and the defendant had paid the son, the plaintiff demanded his wages." It was held "that he was estopped from claiming them." In the opinion, Sandford, J., said: "The plaintiff's conduct was evidence of his assent to that contract, and its performance as well by the defendant as the son, and operates against the plaintiff as an estoppel upon his present claim. Knowing of the contract and having an opportunity to prohibit and prevent its execution, he remained silent, and thus induced the defendant very justly to infer his assent and approbation. If plaintiff can recover for these services, his conduct will have operated as a delusion and a fraud upon the defendant; but he is not entitled to such recovery." In the New York case it was held: "When a minor makes a contract for his services, on his own account, and the father knows of it, and makes no objection, it seems that there is an implied assent that the son shall have his earnings." The court cited for this Whiting v. Earle and Trustee, supra. In the New Hampshire case the court held that the parent's right to payment for his minor child's services "may be waived by acts evincing an assent to the minor's receiving payment himself." Our own case of Wolf v. East Tenn. Ry. Co., 88 Ga. 210, 14 S.E. 199, is directly in line with these authorities. There a minor, by his father as his next friend, sued the railway company for damages arising from personal injuries received while in its employment, and the father sued the company for the loss of the services of his son, resulting from such injuries. The son testified that his father did not consent to his employment on the railroad, but knew of it and did not forbid it. It was held that a "nonsuit was properly granted as to the action in favor of the employé's father; his implied consent to the employment of his minor son by the railway company being fairly deducible from the facts in evidence, and there being no proper foundation for an inference to the contrary."

3. The...