Memphis Steel Const. Co. v. Lister

• Decision Date: 20 October 1917
• Citation: 197 S.W. 902,138 Tenn. 307
• Parties: MEMPHIS STEEL CONST. CO. v. LISTER (TWO CASES).
• Court: Tennessee Supreme Court

197 S.W. 902

138 Tenn. 307

MEMPHIS STEEL CONST. CO. v. LISTER (TWO CASES).

Supreme Court of Tennessee.

October 20, 1917

Appeal from Circuit Court, Knox County; Von A. Huffaker, Judge.

Action by W. A. Lister against the Memphis Steel Construction Company. Judgment for plaintiff was reversed by the Court of Civil Appeals, and plaintiff appeals. Reversed.

WILLIAMS J.

This suit was brought by Lister to recover of the construction company for the loss of services of his minor son, who was injured by the tortious act of appellant, and a judgment of $200 was awarded. On appeal the judgment was reversed by the Court of Civil Appeals, and the motion of the construction company for peremptory instructions in its favor was sustained.

This judgment was rendered because the appellate court was of opinion that the father, prior to the son's injuries, had so far emancipated the minor that he was not entitled to maintain an action for the loss of future services of the son. We are petitioned by Lister to review the judgment.

The son testified that he was employed by a quarry company and that out of his wages he gave his father and mother what they needed for household expenses, running from $3 to $6 per week, regularly; that he did this voluntarily. He resided with his parents, but did not pay board as a boarder. He had never asked his father's permission to work for others and all the while drew his own wages from his employer; his father allowed him to have them all, except what was turned over to the mother for household expenses.

The father in his own behalf stated:

"I had never formally set the boy free, said he was his own man, and turned him loose. I paid part of the family expenses as far as my money would go, and the family the rest. This boy lives in the family" and turned over to his mother a part of his wages to aid in the matter of household expenses.

It is not disputed that, when the minor son was injured, he was taken to and kept in the father's house; the father and the mother nursing him and caring for him generally.

We are of opinion that the Court of Civil Appeals misconceived the rights of the father, and that there was no emancipation by the father that lost him the remedy he seeks.

That court failed to take the distinction between complete emancipation and partial emancipation, and the effect thereof on the right asserted in this action.

"Complete emancipation" loses to the parent custody and control in fact, works a severance of the legal filial relation as completely as if the child were of age. Any act that operates to sunder such ties ought not lightly to be inferred from a given state of facts, where the father is blameless in conduct towards the child.

"Partial emancipation," which frees a child for only a part of the period of minority, or from only a part of the parent's rights, or for some purposes, and not for others, is rather to be implied. Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611, L. R. A. 1917B, 690; Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097, L. R. A. 1916B, 1111.

The fact that the father allowed the son to enter the employment of the quarry company and to receive his wages should not, without more, determine that there was a complete emancipation. The father's was an humble station in life; and it often is the case that permission for such a son to go out to work and to receive his wages may be the best means to prevent his waywardness. A feeling of some measure of self-mastery on the son's part may be with him a staying influence, and so intended to be by the assenting father. It ought not necessarily to be the token of abnegation of paternal control, since it may be in essence the wisest sort of control over the youth's destiny. A father of affluence ought to be permitted to give his son a training for a period in employment or in handling affairs of business on his own account, in order to the self-reliance and the encouragement to habits of industry that may save the son from engulfing worthlessness and fit him to handle later his patrimony. In either case the law should be slow to put the parent to the hazard of losing all control over his own child, by imputing to him an intent (and it must be his intent that governs) to completely emancipate.

The burden of proof to establish a complete emancipation was upon the respondent company asserting and relying...