Howell v. Solomon

• Decision Date: 02 December 1914
• Docket Number: 476.
• Citation: 83 S.E. 609,167 N.C. 588
• Parties: HOWELL v. SOLOMON.
• Court: North Carolina Supreme Court

83 S.E. 609

167 N.C. 588

HOWELL v. SOLOMON.

No. 476.

Supreme Court of North Carolina

December 2, 1914

Appeal from Superior Court, Rowan County; Harding, Judge.

Action by Julia F. Howell against J. N. Solomon. From a judgment of nonsuit as to one cause of action, and from a judgment for defendant as to the other cause of action, plaintiff appeals. No error.

"Leading," relating to leading questions to witnesses, held a relative not an absolute, term.

This action was brought to recover, first, compensation for the support and maintenance of defendant's two children Lucile Solomon and James E. Solomon, who are the grandchildren of the plaintiff, being the children of her deceased daughter, Cora (Howell) Solomon, as for money paid to the use of the defendant; and, second, to recover damages for wrongfully taking them from the custody of the plaintiff at Salisbury, N. C., and carrying them to Richmond, Va where they now are living in comfort and happiness with their parent.

With reference to the first cause of action, the court gave the following instructions, among others, to the jury:

"(1) The obligation rests upon a parent to maintain and support his children, and it does not make any difference whether you find that this defendant abandoned his wife and children, or did not abandon them. If he went off in good faith because he could not stay at home, and left the home of his mother-in-law, it did not relieve him of his responsibility of maintaining and providing for his children, and it was his duty to provide for them as best he could out of the maintenance and support he got. The law does not require that he should maintain and support his children in a style of life that he is not able to support them in, but that he should give them reasonable support and maintenance for the station of life in which they lived, provided he is able to do so.

(2) If you find, from the greater weight of this evidence, that the defendant failed, during the years from 1901 to 1911, to maintain and support his children, whether he abandoned them or did not abandon them, and that the plaintiff maintained and supported the children during the ten years, then the plaintiff would be entitled to recover of the defendant what you shall find is a reasonable amount for clothing and food, and such reasonable incidental expenses, such as medical bills, schoolbooks, and things of that kind, that were reasonably necessary for the maintenance and comfort of those children in the station of life in which they were being reared."

The court then instructed the jury that if they found that plaintiff did not prevent the defendant from performing his duty to the children by her own misconduct, and supported them herself, she would be entitled to their verdict; the burden of proof being upon the plaintiff to show that she supported and maintained them, and upon defendant to show that he was prevented by her acts from performing the service himself. There was evidence to warrant these instructions.

The court nonsuited the plaintiff as to her second cause of action, and the case proceeded to a verdict for the defendant as to the first cause of action, and plaintiff appealed from the judgment thereon.

Clement & Clement and R. Lee Wright, all of Salisbury, for appellant.

W. H. Woodson, of Salisbury, and Abner C. Goode, for appellee.

WALKER, J. (after stating the facts as above).

We think the last ruling was a proper one, as it does not appear that plaintiff has brought her case within the terms or spirit of the Revisal, § 180, which is as follows:

"In all cases where the surviving parent of any orphan child shall have willfully abandoned the care, custody, nurture and maintenance of any orphan child to kindred, relatives or other persons, such parent shall be deemed to have forfeited all rights and privileges with respect to the care, custody and services of such child."

There was no evidence that defendant was a surviving parent who had willfully abandoned his children. When he left his home, under compulsion, as he alleged, his wife was living, and continued to live for some time. When she died, the plaintiff took the two children into her own custody, and as the jury must have found, if we construe the verdict in the light of the evidence and the charge of the court, she prevented the defendant from having any access to them or from performing his parental duty of support and maintenance. The case of Howell v. Howell & Briggs, 162 N.C. 283, 78 S.E. 222, 45 L. R. A. (N. S.) 867, Ann. Cas. 1914A, 893, cited by the plaintiff's counsel, is not in point, as it appeared there that the defendant had assisted his daughter, Mrs. Howell, in abducting the child, Lucy Howell, so that the plaintiff, her father, was thereby deprived of his rightful custody of her, to his injury and damage. Here a third party is suing the father, who is entitled to the custody of his child, unless he has, in some way, lost the right, and such is not the case here. Newsome v. Bunch, 144 N.C. 15, 56 S.E. 509. The last case is much like this one in its general features. Many other authorities are to the same effect. 1 Blackstone (Sharswood's Ed.) 452, and note 10; 21 Am. & Eng. Enc. 1036; In re Turner, 151 N.C. 474, 66 S.E. 431; In re Mary Jane Jones, 153 N.C. 312, 69 S.E. 217, 138 Am. St. Rep. 670; Littleton v. Haar, 158 N.C. 566, 74 S.E. 12; Howell v. Howell & Briggs, supra. This right of the father continues to exist until the child is enfranchised by arriving at years of discretion, "when the empire of the father gives place to the empire of reason." 1 Blackstone, 453; Newsome v. Bunch, supra. Where there is a contest for the custody of the child between those asserting conflicting rights to the same, the courts have, in modern times, adopted the rule stated by the great Chancellor Kent:

"The father, and on his death the mother, is generally entitled to the custody of the infant children, inasmuch as they are their natural protectors, for maintenance and education. But the courts of justice may in their sound discretion, and when the morals or safety or interests of the children strongly require it, withdraw the infants from the custody of the father or mother and place the care and custody of them elsewhere,"

--which was approved by this court in Latham v. Ellis, 116 N.C. 33, 20 S.E. 1012. See In re Turner, supra. The father may forfeit or surrender his right, as the above authorities declare, but there has been no such loss or abdication of his right in this case, as appears from the facts in the record. Plaintiff alleges and testified that, instead of surrendering his right to plaintiff, she had given up the children voluntarily to him, and he carried them away with her free consent.

As to the first cause of action, plaintiff objected to the deposition of the defendant being read, because of an agreement that she should waive all irregularities in the taking of it, and that it should be opened and read, subject to her objections and exceptions. It may be admitted that this condition extended to objections made at the trial, and was not restricted to those already noted in the deposition and we are inclined to think this is correct, but, if it is so, the plaintiff was given the full benefit of this construction of the stipulation. The objections were noted, passed upon, and...