Daily v. Parker

• Decision Date: 02 November 1945
• Docket Number: No. 8852.,8852.
• Parties: DAILY et al. v. PARKER.
• Court: U.S. Court of Appeals — Seventh Circuit

152 F.2d 174 (1945)

DAILY et al. v. PARKER.

No. 8852.

Circuit Court of Appeals, Seventh Circuit.

November 2, 1945.

Urban A. Lavery, of Chicago, for appellant.

A. R. Peterson, Owen Rall, Walter W. Ross, Jr., and Tim G. Lowry, all of Chicago, Ill. (Eckert & Peterson, of Chicago, Ill., of counsel), for appellee.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

EVANS, Circuit Judge.

The instant appeal raises this question: Have children, living in Pennsylvania, a cause of action for damages against a woman living in Illinois who caused their their to leave them, their mother, and their home and go to Chicago and live with her and to refuse to further contribute to their maintenance and support? The District Court answered the question in the negative and dismissed the complaint.

An answer to the question necessitates its being broken into several narrower inquiries: (a) Will the Federal Court recognize and enforce such a cause of action in the absence of any direct holding by the state court upholding such cause of action? (b) Should a State or Federal Court recognize such a cause of action in the absence of legislation by the state granting such a cause of action to the minor children? (c) Is there anything in the Illinois or Pennsylvania constitutions or statutes which prevents this court from recognizing such a cause of action in the plaintiffs?

After study and reflection, we answer all three questions in plaintiffs' favor.

Plaintiffs are the four minor children of Mrs. Olive Means Daily and Wilfred J. Daily. They bring this action through their mother as next Friend, against the defendant, Mrs. Marian Parker, who, they allege, enticed their father from his and their home and to go to Chicago where he lives with defendant, a married woman, and they further allege that their father fails and refuses to maintain or support them or their home. All of this conduct or misconduct on their father's part is allegedly due to defendant's successful efforts in using her feminine charms, to entice and lure said father from his home that he might live and cohabit with defendant in Chicago.

Our approach to the question must be based on a study of the rights and obligations of all who are parties to a family. The father, the mother, and the children ordinarily constitute the family. Each is entitled to the society and the companionship of the others. Within the limits of the others' abilities, each is entitled to the financial aid and support of the others, although generally speaking, the children in their tender years can contribute nothing, and the wife, in view of her place in the home, may make but small financial contribution to the family exchequer. The children are entitled to shelter, food, clothing, and schooling and to the social, the moral support, guidance, and protection of their father, though in turn they can contribute only companionship and the inspiration which comes from their association in the family circle.

Is the family relationship and the rights of the different members therein, arising therefrom, sufficient to support a cause of action in each, the father, mother, or children, against one who breaks it up and destroys rights of the said individual members?

Appellee concedes that such a cause of action exists in favor of the father and within certain limits and certain jurisdictions, also in favor of the wife. She denies that such a cause of action, however, exists in favor of the children.

The history of the development of the family and the family relations and the duties and obligations of the members of the family is a long one, covering centuries. Its development was slow, due to society's acceptance of the relative positions of the parties in the family and its reluctance to change such status. The husband was lord and master, and the rights of all of the members of the family were merged in him. He ruled. He spoke in the first person singular in all matters. He spoke authoritatively for all. Through the centuries, however, there came slowly a change. The father is still the master, it may be said, but the duties of the master have changed. Where it was said to be his duty to rule, he now serves. He recognizes rights of the others and his obligation to meet them.

Perhaps he is still the titular head of the family. If so, his position merely carries with it greater duties and obligations. The duties of each member of the family are measured (at least in theory and in legal conception) by the position, the role, each takes in the family. Thus we see the wife, the breadwinner, and speaking for the family when the husband becomes incapacitated through sickness or invalidism. And children of tender years take on the family financial burdens when father is incapacitated and mother must attend him or for other reasons is unable to contribute to the financial support of the family. Relativity of rights and duties marks the rights and the obligations of the group and relativity is determined in each case by the situation of the family. But relativity does not eliminate or destroy the rights of any member.

It is this conception of the family which must constitute our approach to the question at hand.

Another factor deserving consideration is the division which we must make of the rights of children. For the purpose of considering redress of such rights, we divide them into two groups. (a) The right to recover for injuries which arise from their right to support and maintenance from their parent. These rights are financial in character. (b) The right to recover for injuries to feelings and damages which arise from their rights to the comfort, the protection and the society of the father.

Defendant argues that such rights as here asserted have never been, and should not now be, recognized by any court until and unless legislation has been enacted creating such right. She argues that in the past, children's rights have not been judicially recognized, save after legislative enactment and she points to various specific acts¹ which the Illinois Legislature enacted to give rights which were not previously recognized. Particularly does she contend that the Federal Court should not exercise its power to grant redress in such cases where the state courts have not seen fit to recognize it.

Plaintiffs, on the other hand, rely upon the maxim, Ubi Jus Ibi Remedium. Also they refer to the bill of rights of the Illinois Constitution (Sec. 19, Art. 2, Smith-Hurd Stats.) where it is provided "Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation." They contend that the absence of precedent affords no justification for denial...