Hoard v. Gilbert

• Decision Date: 13 October 1931
• Citation: Hoard v. Gilbert, 205 Wis. 557, 238 N.W. 371 (Wis. 1931)
• Parties: HOARD v. GILBERT.
• Court: Wisconsin Supreme Court

205 Wis. 557

238 N.W. 371

HOARD

v.GILBERT.

Supreme Court of Wisconsin.

Oct. 13, 1931.

Appeal from the Circuit Court for Dodge County; C. M. Davison, Circuit Judge.

Action by Harry H. Hoard against Paul Gilbert. From an order overruling the defendant's demurrer to the plaintiff's complaint, defendant appeals.--[By Editorial Staff.]

Reversed, with directions.

See, also, 201 Wis. 572, 230 N. W. 720.

Clark & Lueck, of Beaver Dam, for appellant.

Hooker & Wagner, of Waupun, for respondent.

NELSON, J.

This is an appeal from an order of the circuit court for Dodge county overruling the defendant's demurrer to the plaintiff's complaint.

The complaint, omitting its formal parts, consists of but a single paragraph, and is as follows:

“1. That since the 16th day of April, 1927, and prior to the 21st day of June, 1930, said defendant was indebted to one Josephine Dittburner in the sum of Six Thousand Dollars for the support and maintenance of his infant son, James Leroy Gilbert, for the period of fifteen years from the 16th day of April, 1912, to said 16th day of April, 1927; that on the 21st day of June, 1930, said Josephine Dittburner for a valuable consideration, duly assigned said claim and all right of action thereon, and plaintiff is now the owner and holder thereof, and there is now due and owing to said plaintiff from said defendant the sum of Six Thousand Dollars on said account.”

The defendant demurred to the complaint on the ground that it appears upon its face that it does not state facts sufficient to constitute a cause of action. The court below held that the complaint stated a cause of action and entered an order overruling the demurrer, with leave to answer on terms.

The defendant contends that the action of the court below in overruling his demurrer was error.

The defendant, among other things, contends that the complaint fails to state a cause of action because it is not alleged therein that defendant's infant son was supported at the request of the defendant or with his knowledge and consent, or that, knowing of such support, he assented thereto, and that no notice to the defendant of the assignment by Josephine Dittburner is pleaded.

Section 263.03, Wisconsin Statutes, provides that the complaint shall contain “(2) A plain and concise statement of the facts constituting each cause of action, without unnecessary repetition.” It is, of course, elementary that a court, in determining whether a complaint states a cause of action, must give to its several allegations a liberal construction. Section 263.27, Wisconsin Statutes.

[1] But it is also elementary that a court cannot supply essential allegations which are omitted or lacking in a pleading.

A reading of the complaint clearly reveals that the pleader did not attempt to state a cause of action based upon express contract. Did he intend to state a cause of action based upon implied contract? Viewing the complaint in the latter light, and giving it a liberal construction, as we must do, does it contain a plain and concise statement of facts constituting a cause of action? The answer to this question must rest upon a consideration of the law relating to the liability of a parent for the support of his infant child.

It was early held in McGoon v. Irvin, 1 Pin. 526, 44 Am. Dec. 409, that parents are under legal obligation to maintain and support their children who are of tender years and helpless. In that case the liability of a father to the husband of the divorced wife of the former, for the support of his infant children, was sustained; the court stating the law applicable to be as follows: “And when a parent permits a stranger to maintain, support and instruct such children, in no way objecting to the act, but rather assenting and advising therein, the law will presume that he knows his obligations, accepts the services and assumes to pay.” The same rule was stated somewhat differently in Judge v. Barrows, 59 Wis. 115, 17 N. W. 540, 541, as follows: “A father is liable for necessaries furnished his infant child only upon an express promise, or upon proof of circumstances from which a promise may be implied.” To the same substantial effect is Zilley v. Dunwiddie, 98 Wis. 428, 74 N. W. 126, 40 L. R. A. 579, 67 Am. St. Rep. 820, where the liability of the father's estate to a divorced wife who had supported the children (the court granting the divorce having made no order as to their support) was sustained; the court saying: (page 435 of 98 Wis., 74 N. W. 126, 128) “The defendant had the...