Lapworth v. Leach

• Decision Date: 28 December 1889
• Court: Michigan Supreme Court
• Parties: LAPWORTH v. LEACH.

44 N.W. 338

79 Mich. 16

LAPWORTH v. LEACH.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Macomb county.

SHERWOOD C.J., dissenting. Lovell & Laing

, for plaintiff in error.

Eldredge & Spier, for defendant in error.

CAMPBELL J.

The opinion of the circuit judge holding defendant not liable to plaintiff is in accordance with our decisions, and sufficiently explains the rule. ^[1] I think the judgment should be affirmed.

CHAMPLIN MORSE, and LONG, JJ., concurred with CAMPBELL, J.

SHERWOOD C.J., (dissenting.)

In this case the plaintiff claims that on the 26th day of July, 1866, the defendant was her lawful husband, and on that day, without cause or provocation, he deserted her, and left the county and the state; that at that time she was sick, and in a family way, and unable to provide for her support, and on the 25th of September, 1866, she gave birth to a female child, which she nurtured, protected, and supported by her daily work until the child died, on the 1st day of October, 1884; that the first eight years she supported the child unaided by any one, and by her own personal efforts, and during the last ten years of her life plaintiff bestowed upon the child her personal care and attention, and that defendant, although he promised to support plaintiff and her child, yet he never contributed anything towards the support of either of them. Upon these facts plaintiff based her declaration, and gave the following bill of items of her demand:

1874, August 20th, board furnished for defendant's daughter, 407

weeks ............................................................. $1,221 00

Schooling for same ..................................................... 200 00

Washing and lodging .................................................... 407 00

Medicine and medical attendance ........................................ 300 00

1884, Sept. 25, personal care and attention .......................... 1,000 00

The defendant pleaded the general issue to the plaintiff's declaration, and gave notice thereunder that he should insist on the trial upon the statute of limitations as a bar to the plaintiff's claim. The case was tried in the Macomb circuit with a jury, and the circuit judge directed the verdict for the defendant. The plaintiff asks a review of the case in this court.

From the testimony in the case it appears that in three days after the marriage of the parties defendant left the plaintiff,- left, as he claimed, to go to Saginaw to get work; and promised plaintiff he would send her enough to support and care for her and the child in prospect. That with this understanding and promise defendant went to Saginaw, as plaintiff supposed, to better his condition, and earn the means necessary for the support of his family. After he left plaintiff never heard from him again, except once, until he had been absent about 18 years, at which time he was in Canada, where he had been for about two years. In the summer of 1884 she first learned defendant was at Ridgeway, in this state, and in the fall of 1886 she commenced this suit. The plaintiff worked out as a hired servant, and supported herself and child until the 20th day of August 1874, at which date she obtained a bill of divorce from her husband, and on the 23d day of the same month she intermarried with her present husband, Robert Lapworth, who took care of said child from that time until she died, on the 1st day of October, 1884. The plaintiff claims damage for the support of her child until she was divorced from defendant in August, 1874, and from that time until their child died for personal care and attention given to her. The defendant's claim upon the trial and in this court is "that although he had had sexual intercourse with plaintiff, yet it was prior to a time when said child must have been conceived; that at the date of said marriage he was only seventeen years and nine months old, and therefore said marriage was void; that he married plaintiff under duress; that a wife has no cause of action against her husband until after divorce; that although he went to Canada and New York when he left the plaintiff, yet his return, about twelve years before suit was brought, was open, notorious, and continuous, and that said cause of action did not accrue to plaintiff at any time within six years next before the commencement of this suit." The issue which was made in the circuit, and the theory of the respective parties upon the trial, is above stated, and the circuit judge, after hearing the evidence, was requested by counsel for plaintiff to give to the jury the following charges: "(1) If you find from the evidence that Thomas A. Leach is the father of Minnie Leach, the child of the plaintiff in this case, and that the said mother of said child did maintain and support it from its birth in September, 1866, to the marriage with Mr. Lapworth in August, 1874, you can allow the plaintiff such sum as you find from the evidence will pay her for the care and support she gave such child of defendant during that time. (Refused.) (2) If you find from the evidence that the plaintiff, after her marriage with Lapworth, by her arrangement with her husband at or about the time of the marriage, was to be allowed to take the child with her, and to care for and maintain it, she can also be allowed such sum for such nurture and care as you deem the same from the evidence worth. (Refused.) (3) If you find from the evidence that defendant is the father of the child in question, you can find for the plaintiff whether he married the plaintiff willingly or unwillingly. The father of a child is bound to support his child when able so to do. Evidence in this case shows the ability of the father to properly support his child. (Refused.) (4) If you find from the evidence that the defendant, when about to leave Flushing, promised the plaintiff to send her money or means to aid her in the support of the child, you must find for the plaintiff, and assess her damages at such sum as you find from the evidence he was able to furnish her, not exceeding, however, such sum as would actually compensate her for the support, care, and nurture furnished by the plaintiff. (Refused.)" The circuit judge refused to give these requests, or either of them, but in directing the verdict said to the jury: "(1) The defendant in this case has claimed the benefit of the statute of limitations, and you are instructed that the plaintiff has not, by the proofs in this case, shown any promise, express or implied, on the part of the defendant within six years of the time of the commencement of this suit to pay her for anything she has done for the child in question, and for this reason your verdict must be for the defendant. (2) I further charge you that no promise on the part of the father to pay a mother for anything she may do in the discharge of her moral duties to their offspring can be implied. The mother is as much morally bound to care for, support, nourish, and educate the child as the father, and the law will not allow her to recover for so doing simply because the father omits his duty. (3) If the claimed marriage between those parties is a valid one, and the defendant deserted the plaintiff before the birth of the child, yet the plaintiff...