Doughty v. Engler

• Decision Date: 06 January 1923
• Docket Number: 24,138
• Citation: 112 Kan. 583,211 P. 619
• Parties: RODNEY DOUGHTY, a Minor, by Edyth M. Woods, his Next Friend, Appellant, v. RAY ENGLER, Appellee
• Court: Kansas Supreme Court

211 P. 619

112 Kan. 583

RODNEY DOUGHTY, a Minor, by Edyth M. Woods, his Next Friend, Appellant, v. RAY ENGLER, Appellee

No. 24,138

Supreme Court of Kansas

January 6, 1923

Decided January, 1923.

Appeal from Clay district court; FRED R. SMITH, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

ILLEGITIMATE CHILD--Father Under Obligation to Support It. The father of an illegitimate child too young to care for itself is under a nonstatutory obligation to support it, which may be enforced in an action brought by it through its next friend.

R. C Miller, and C. Vincent Jones, both of Clay Center, for the appellant.

William M. Beall, and W. T. Roche, both of Clay Center, for the appellee.

OPINION

MASON, J.:

A four-year-old boy, born out of wedlock, brought this action through his mother as his next friend, against one alleged to be his father, to require the defendant to make provision for his support. This appeal is taken from the sustaining of a demurrer to the petition.

At common law the father of an illegitimate child was under no legal duty to support it. In behalf of the plaintiff it is urged that this rule is not sound in reason and not in keeping with modern ideas of natural right, and should not be regarded as remaining in force in aid of our statutes by virtue of the act giving that effect to the common law as modified by "the conditions and wants of the people." (Gen. Stat. 1915, § 11829.) The courts of this country apparently in every case in which the question has been raised have held, that without legislation on the subject, the father of an illegitimate child cannot be required to provide for its support. (7 C. J. 955.) In most of these cases, however, the matter has been treated as settled by the mere fact that the common law recognized no such duty on his part, and the question whether the rule is so repugnant to present-day conceptions of social obligations that courts should refuse to follow it has not been extensively discussed.

The common law with almost uniform consistency treated an offspring of parents not married to each other as nullius filius--the son of no one--of no father and no mother. That is to say, it closed its eyes to the fact of that relation and in legal aspect ignored its existence. It absolved the mother equally with the father from liability for the support of the child (Ruttinger v. Temple, 4 B. & S. 491), although this has been doubted ( Humphrys v. Polak, 1901, 2 K. B. D. 385, 389). It also denied to both parents the legal right to its custody. The question asked in an earlier case, "How does the mother of an illegitimate child differ from a stranger? has been interpreted as "stating bluntly this legal doctrine." (Barnado v. McHugh, Appeal Cases, [1891] 388, 398.) In equity, however, recognition was made of "a sort of blood relationship" (The Queen v. Nash, 10 Q. B. D. 454) that entitled the parents to some consideration in the matter. But the common law in failing to require the parent of an illegitimate child to support it did not rest wholly upon the nullius filius idea, for as interpreted in England and in some of the American states it imposed no legal obligation in that respect even upon the parents of legitimate children. (20 R. C. L. 622; Tiffany's Persons and Domestic Relations, 2d. ed., § 116.) By the great weight of judicial opinion in this country parents are under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R. C. L. 622), the obligation being sometimes spoken of as one under the common law and sometimes as a matter of natural right and justice, and often accepted as a matter of course without the assignment of any reason. Chancellor Kent says: "The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law." (2 Kent's Commentaries *189.) Blackstone begins his discussion of the duties of parents to legitimate children thus:

"The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they only gave their children life that they might afterwards see them perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents." (1 Blackstone's Commentaries, 447.)

The full language of Puffendorf, from which Blackstone made the foregoing condensation, is as follows:

"As to that Maintenance, which Parents owe their Children, it hath been doubted by Authors, whether the Obligation to pay it were perfect or imperfect, or whether it belonged to expletive or to attributive Justice. 'Tis the Opinion of some, That Parents do indeed owe their Children Maintenance, but then 'tis by the latter kind of Justice only, and not by the former; so that Parents would act very inhumanly, should they deny them this Assistance; yet Children have no Right to challenge it from them against their Wills, this being the proper effect of expletive Justice: though civil Statutes may invest Children with a full and perfect Right in this Matter. But we are rather inclined to think, That Parents lie under a Perfect Obligation to maintain their Children, so long as they are unable to maintain themselves; and this Duty seems to be laid upon them, not only by Nature itself, but by their own proper Act, in bringing them into the World. For they would be in the highest manner injurious to their Issue, should they have given the Children Life, for no other Reason, but that they might afterwards see them...