Dix v. Martin

• Decision Date: 05 May 1913
• Citation: 157 S.W. 133,171 Mo.App. 266
• Parties: LUCILE DIX, Minor by Next Friend, GEORGE M. YOUNGER, Respondent, v. ELIZABETH MARTIN, Appellant
• Court: Kansas Court of Appeals

157 S.W. 133

171 Mo.App. 266

LUCILE DIX, Minor by Next Friend, GEORGE M. YOUNGER, Respondent, v. ELIZABETH MARTIN, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1913

Appeal from Cooper Circuit Court.--Hon. John M. Williams, Judge.

Affirmed conditionally.

John Cosgrove and Daniel W. Cosgrove for appellant.

(1) The trial court proceeded throughout on the theory that defendant did not stand in loco parentis to the plaintiff. This was an error and instruction Nos. "a" and 1 should not have been given at the request of the plaintiff. A person assuming the parental character and discharging parental duties is a person in loco parentis. 19 Am. & Eng. Ency. Law (2 Ed.), p. 518. (2) A stepfather who takes the children of his wife by a former marriage into his family and holds them out to the world as members of his family stands in loco parentis. Eickhoff v. Railroad, 106 Mo.App. 541; Academy v. Bobb, 52 Mo. 357. (3) The grandparents of the plaintiff voluntarily surrendered the care and custody of plaintiff to the defendant for the term of plaintiff's minority according to the defendant's testimony, and the grandparents could not revoke the agreement which was fairly entered into, unless the welfare of the plaintiff demanded it. Cunningham v. Barns, 37 Wis. 746, 38 Am. S. R 57. (4) Instructions six and seven asked by the defendant should have been given and it was error to refuse them. The relation of parent and child existed between plaintiff and the defendant, and conferred upon the defendant a lawful right to correct the plaintiff. State v. Koonse, 123 Mo.App. 662, 663. (a) The defendant was not liable for the infliction of punishment but the excess which constitutes the offense. Johnson v. State, 2 Humphreys (Tenn.), 283 36 Am. Dec. 322; State v. Jones, 95 N.C. 588, 59 Am R. 282; 2 Am. & Eng. Ency. Law (2 Ed.), p. 962. (5) The damages are excessive and are the result of passion and prejudice.

W. F. Johnson and W. G. Pendleton for respondent.

(1) A contract for the surrender of the care and custody of a child, made by the father or person in loco parentis, is held to be void as against public policy--is revocable. Matter of Clements, 78 Mo. 352; Weir v. Morley, 99 Mo. 484; Matter of Berenice S. Scarritt, 76 Mo. 584; 21 Am. & Eng. Ency. Law (2 Ed.), p. 1039; 6 Am. & Eng. Ann. Cas., p. 939. (2) Whatever the relation might have been that existed between the defendant and the plaintiff, the defendant was liable for unreasonable, cruel and excessive punishment. State v. Koonse, 123 Mo.App. 655; Cooley on Torts (2 Ed.), 830; West v. Forrest, 22 Mo. 344; Holke v. Hermann, 87 Mo.App. 125; Haycraft v. Grigsby, 88 Mo.App. 361. (3) The vice of appellant's refused instruction numbered 5 is glaringly apparent--in this, that it instructs the jury that if they believe from the evidence that the defendant acted in good faith, etc., she should be acquitted, notwithstanding the severity or brutality of the chastisement. This is counter to the authorities quoted by the appellant and is in the teeth of the decisions of this, and other, States. State v. Koonse, 123 Mo.App. 663; Haycraft v. Grigsby, 88 Mo.App. 361; Landers v. Seaver, 32 Vt. 114, 76 Am. Dec. 156. Excessive punishment is a question of fact for the jury. Hinkle v. State, 127 Ind. 490; Johnson v. State, 2 Humph. (Tenn.) 283; Fletcher v. People, 52 Ill. 396; Patterson v. Nutter, 78 Me. 509; Classon v. Pinks, 69 Neb. 278.

OPINION

JOHNSON, J.

--Plaintiff, a minor, sued by her next friend to recover actual and punitive damages for an assault alleged to have been made upon her by defendant on August 12, 1911. Defendant admits having whipped the child on that date and endeavors to justify the act on the ground of parental right. Verdict and judgment were for plaintiff for eight hundred dollars actual, and two hundred dollars punitive, damages and after unsuccessfully moving for a new trial and in arrest of judgment, defendant appealed.

Deprived by death of both parents plaintiff, who was seven or eight years old, and her younger sister went to live with their maternal grandparents in Sedalia. Her grandfather who appears in this action as her next friend was a laboring man but his health was good and his wages sufficient to support his family comfortably. He testified that he and his wife assumed the relationship of parents to the orphans and purposed to rear and educate them. Shortly after they became members of his family and before the beginning of the summer season defendant, who lived with her husband on a farm in Cooper county, called on the grandparents at their home and asked that plaintiff be permitted to live with her during the summer. She and her husband were a childless old couple living by themselves, her husband an invalid and she a rheumatic cripple. She desired the services and companionship of plaintiff for her husband and herself and spoke about adopting her but the grandparents dismissed the suggestion by saying that they intended to rear the children themselves and "would live on bread and water before they would separate the children." They allowed defendant to take plaintiff to her home for the summer on the understanding that she would be returned in the fall in time to go to school. The substance of the testimony of defendant is that she was given the custody of plaintiff with the understanding that she would adopt and rear the child as her own. This evidentiary dispute relates to the issue of whether defendant stood in loco parentis to plaintiff and had a right to administer necessary corporal punishment for her proper correction or was in the position of one wrongfully retaining the custody of an infant in defiance of the wishes and rights of those who rightfully stood in the place of the infant's natural parents.

In the following September the grandfather requested defendant to return the child, and, on her failure to do so, went to her home in Cooper county and made demand in person. The demand was refused and he was unable even to see his grandchild. He left and shortly after returned with an officer and renewed the demand which again was refused by defendant who would not admit the unwelcome callers to her house. The grandfather being at the end of his resources returned home and, against his will, suffered plaintiff to remain with defendant until the occurrence of the events that gave rise to this action. Defendant does not dispute the facts just stated but says that her refusal of the grandfather's demand was prompted by the facts that it was a breach of their original agreement and that plaintiff evinced a strong disinclination to go back to her grandparents.

Plaintiff lived with defendant for three years as a sort of servant. She waited on the invalid husband of defendant until his death which occurred in a year from the beginning of her service and after that event she lived alone with defendant as her companion and servant. Defendant provided her with sustenance and clothing, was kind to her and treated her as a companion and social equal but did not send her to school and on account of her own crippled condition kept her at home and employed her in domestic service.

The evidence of plaintiff shows that in the evening of August 12, 1911, defendant, for some real or imaginary offense on the part of plaintiff, committed a brutal and cruel assault on her. She tied the child's hands and feet with ropes and then beat her on the back with her fists and with a buggy whip from which the small end or lash had been broken off. After the whipping the child's back from neck to waist was covered with bruises and welts from which blood and water oozed. The following Monday (the assault was on Saturday) plaintiff went to the house of their nearest neighbor and asked protection. They gave her an asylum and shortly after took her to a justice of the peace in a nearby town. He, his wife and others examined plaintiff's back and their testimony corroborates that of one of the witnesses who stated that "she had been whipped from her shoulder down to her waist by some one, and it seemed just like she was black and blue, something like a jelly in some places, and some places looked like water oozing and maybe a little blood but it had begun to dry." A criminal prosecution for assault followed, defendant pleaded guilty and was fined one hundred dollars.

Defendant denies that she tied the child's hands and feet or that she beat her with a buggy whip from which the small end had been broken off, but the wounds proclaimed that a bludgeon too heavy and terrible for tender flesh to bear had been wielded with merciless force. That defendant was actuated by blind fury is disclosed in her own admission that "I whipped her harder really, men, than I thought I would, but it was just like my hand was tied--I don't know why." The anger of defendant was caused, she says, by the conduct of plaintiff in slipping off to their neighbor's house and playing in the yard with boys when owing to the hot weather, she had nothing on but a thin dress. The child was only eleven years old and was merely romping in an excess of youthful exuberance but defendant, deeming such conduct shocking to...