Gulf, C. & S. F. Ry. Co. v. Redeker

• Decision Date: 03 December 1889
• Citation: 12 S.W. 855
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> REDEKER.
• Court: Texas Supreme Court

12 S.W. 855

GULF, C. & S. F. RY. CO.v.

REDEKER.

Supreme Court of Texas.

December 3, 1889.

Commissioners' decision. Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Shepard & Miller, for appellant. Wm. McLaury and Ball & McCart, for appellee.

COLLARD, J.

This action was brought by the appellee, Louis Redeker, for loss of services of his minor son, J. W. Redeker, expenses, etc., resulting from an injury received while the minor was engaged as an employe of the Gulf, Colorado & Santa Fe Railway Company, on a construction train, in the capacity of a brakeman. On the former appeal of the case the court, Mr. Justice GAINES delivering the opinion, laid down the following propositions of law. He said: "There can be no question that if the injury was the result of negligence, as alleged in the petition, the father was entitled to a judgment for damages for loss of service and incidental expenses accruing from the injury. Railroad Co. v. Miller, 49 Tex. 322. We are also of opinion that when one knowingly engages a minor in a dangerous employment, without the father's consent, and the minor is injured in such employment, he is responsible to the father for any consequent loss of the son's services to him. * * * This is the rule when the minor is employed by another with the parent's consent, and, without such consent, is put by his employer at a more dangerous business, and thereby receives an injury, * * * and we see no reason why one less stringent should be applied in case the minor is knowingly engaged in a perilous occupation in the first instance, against the parent's will." 67 Tex. 191, 2 S. W. Rep. 527. The case was reversed and sent back for another trial on the ground that it did not appear from the testimony that defendant knew that the son was a minor, or that it ought to have been known from his appearance. On the last trial this evidence was supplied to this extent, that the fact was made known to the conductor before the injury, — the conductor who had employed him, under whom he served, and who had authority to employ and discharge such employes of the company. On this appeal other questions are at issue. It was shown on the last trial that the father, plaintiff, was only occasionally at home; was employed as engineer on the same road running between his home at Ft. Worth and Temple; came into Ft. Worth in the evening, and would go right out again, laying over at Temple; stopped in Ft. Worth just about long enough to go home; came in sleepy, and would lie down. Under these circumstances, the father being absent, young Redeker, by his mother's permission, left home to get a position on a railroad, (had been idle about six weeks,) having been, by his father's consent, previously at work as a fireman on the "T. P." road, both parents having consented that he should follow railroading for a living; went to Houston, and was employed by defendant's agent as a wiper or watchman, and was in a few days put to work as a brakeman on a construction train. While employed as a watchman, he wrote his mother of the fact, but she did not know the character of his work had been changed. His father did not consent to his taking employment with defendant at all. He says he did not know where he was, or what he was doing, but his wife testified that when "he came home and found John had gone to Houston, into the railway service, he was not to say angry, but he did not like it." The defendant asked the court to charge the jury that, if the son went away from home, with his mother's consent, to enter into railway service, and no notice was given to defendant that he was not permitted to take employment as a brakeman, the plaintiff could not recover. The court refused to give the charge, and in the general charge informed the jury that the father's consent to the employment was necessary. The court also told the jury that, if he entered upon the service of defendant with his mother's consent, and his father was informed of it, and of the character of service he had taken, and then consented to or acquiesced in it, the verdict should be for defendant. The refusal of the court to give the requested charge is assigned as error.

Appellant argues that the mother's consent was sufficient authority for defendant to employ the minor. If this is correct, the case must be reversed, because the court made the right to recover depend on the father's consent or acquiescence. We cannot agree to the legal proposition contended for by appellant. In case the husband abandon the wife, and the necessities of the family demand it, she can act as a feme sole in the management and disposition or sale of the community property. See Wright v. Hays, 10 Tex. 135; Cheek v. Bellows, 17 Tex. 617; Fullerton v. Doyle, 18 Tex. 12; McAfee v. Robertson, 41 Tex. 358; Lodge v. Leverton, 42 Tex. 20; Heidenheimer v. Thomas, 63 Tex. 289. These authorities are cited in support of the doctrine contended for by appellant in this case; but an examination of them will show that two things must concur to give the wife the power to sell the community property: (1) There must be an abandonment by the husband of the wife of a permanent character, or such desertion or protracted absence as leaves to her the necessary responsibility of maintaining the family; and (2) the necessity must exist to require the exercise of the power. Under the facts of this case, it will be seen at once that this principle cannot be invoked to authorize Mrs. Redeker to act independently of her husband, if the question were one of her right to sell or charge community property. However, we do see from these cases that there are circumstances under which the wife may, from necessity, become the managing head of the family, and may so act without the concurrence of her husband. The husband is by law the managing head of the family, except in extreme cases. At common law he has the right to the custody of the children, except in cases of misconduct, or where the welfare of the child demands that such custody be taken from him and given to the mother, in which case the courts of proper jurisdiction will so direct. Schouler, Dom. Rel. §§ 246-248, inclusive. When the parents live together, the father, under our statute, is made the natural guardian of the persons of the minor children; where they do not live together, their rights are equal. Rev. St. arts. 2494, 2495. The status of the father in the family is then fixed...