Evans v. Kansas City Bridge Company

• Decision Date: 08 January 1923
• Parties: DENNIS G. EVANS, Respondent, v. THE KANSAS CITY BRIDGE COMPANY, Appellant
• Court: Kansas Court of Appeals

247 S.W. 213

213 Mo.App. 101

DENNIS G. EVANS, Respondent, v. THE KANSAS CITY BRIDGE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 8, 1923

Appeal from the Circuit Court of Cole County.--Hon. John G. Slate Judge.

REVERSED.

Judgment reversed.

David W. Peters for respondent.

Lathrop Morrow, Fox & Moore and Marvel H. Davis for appellant.

OPINION

TRIMBLE, P. J.

This is an action by a father to recover the value of his minor son's services rendered to defendant while in the latter's employ. There was a verdict and judgment for plaintiff in the sum of $ 500 and defendant appealed.

The son was born in 1903. In 1906 when he was three years old his mother died, and his paternal aunt took him into her own family where he thereafter lived, the aunt and her husband supporting him, sending him to school and caring for him as though he were their own child. This was with the father's whole-hearted consent, for, after the mother's funeral, the father told his sister "to take the boy and do by him as she would by one of her own children." The father never paid anything for the boy's maintenance or support. He does say that once he bought the boy a shirt (the price of which he does not remember), and once he paid $ 3 on a doctor's bill, and at another time he gave the boy $ 5 in money. This was all the father did during a period of fifteen years prior to the boy's death which occurred in his 18th year as hereinafter related. Plaintiff admits that he never at any time paid anything for the boy's keep, his schooling or education. The father says he heard at various times that the boy was selling newspapers about town--Jefferson City; that he thought the boy was at work and wanted him to be, as he didn't want him to be "lazying around." He says also that he never had any idea of demanding money from the boy's aunt or her husband if he worked for them and never demanded of the boy any of his money, because "I didn't think I was entitled to it" and "didn't really want it." He says that had his son lived he would never have taken the boy's wages from him, and admitted that it was only after the boy's death that he made up his mind to demand his son's wages.

In May, 1918, the boy being then fifteen years old, left his aunt's home and some time in that month appeared at the defendant's camp near Huntsdale, Missouri, saying he was hungry and desired work. He told defendant he had no one to support him, that he had to make his own living, that he couldn't get along with his father and had made his home with his aunt. He was given work as a water boy and worked for defendant until some time in October, 1918. From that date until August, 1920, he did not work for defendant but "batched" with a man by the name of Kimberlin and was engaged in trapping in winter and raising watermelons in summer.

In August, 1920, the boy again entered the employ of the defendant and continued in its employ until in April, 1921, when he fell from one of defendant's barges into the Missouri river and was drowned. The aggregate of all the wages he earned was $ 1266.75 which, less certain deductions for board and other miscellaneous items, was paid to him in cash by defendant.

It is urged that under the father's own showing he is not entitled to recover and that, therefore, defendant's demurrer to the evidence should have been sustained.

We think the point is well taken and that it should be upheld. A parent's right to the services and earnings of his minor son are not absolute, but contingent upon his actually providing support for the infant and retaining parental control over him. [Chaloux v. International Paper Co., 75 N.H. 281, 73 A. 301.] "At common law, the father is entitled to the services and earnings of his minor children, because he is bound to support and educate them. The right grows out of the obligation and is correlative to it. When one ceases the other ceases also." [Campbell v. Cooper, 34 N.H. 49, 62-63.] The right of a parent to the earnings of a minor is allowed in consideration of the support of the child by the parent; and where he has not done this he can have no claim to the child's time. [McMorrow v. Dowell, 116 Mo.App. 289, 298, 90 S.W. 728.] The right to the child's earnings arises out of the duty to support the child, and where the parent neglects that duty, or voluntarily releases his parental control to a third person, he loses the right to the child's earnings. [29 Cyc. 1627, 1628.] When the duty to support no longer remains, the right to the child's earnings ceases also. [Jenness v. Emerson, 15 N.H. 486.] Where the father has discharged himself of the obligation to support the child, there is no principle which will continue his right to receive the earnings of the child's labor. [Nightingale v. Withington, 8 Am. Dec. 101, 102.]

It is manifest from plaintiff's own testimony also that the father knew the boy was working and earning money and that he never intended to take any money from the boy, that he didn't consider himself entitled to it, never made any demand for his wages and never intended to do so, and did not conceive the idea of demanding the boy's wages until...