Rader v. Davis
| Decision Date | 05 March 1912 |
| Citation | 134 N.W. 849,154 Iowa 306 |
| Parties | JOHN D. RADER, Appellant, v. JESSE DAVIS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--HON. CHAS. E. ALBROOK, Judge.
ACTION at law to recover damages for mental suffering caused by defendant's refusal to permit plaintiff to visit his sick child and to attend its funeral. The trial court ordered a verdict for defendant, and plaintiff appeals. Affirmed.
Affirmed.
John W Jordan and Ryan & Ryan, for appellant.
D. G Baker, for appellee.
Plaintiff married one of defendant's daughters, Lillie Mae by name in March of the year 1903, and as a result thereof one son was born in September of the year 1904. Because of plaintiff's ill treatment the wife was compelled to leave him, and being without means she returned, with her son, to her father's home. Thereafter she commenced a divorce action against the plaintiff, and in September of the year 1905 she received a decree, which, among other things, contained the following provisions:
Thereafter, and some time in the year 1909, plaintiff herein (defendant in the divorce proceedings) made an application to the court rendering the original decree for a modification thereof, and as a result thereof the following order was entered:
The court finds that there is no showing of such changed conditions since the rendering of the original decree as to justify a modification thereof, therefore dismisses said application at defendant's costs herein, taxed at $ , and does hereby order that execution issue to make same, but the court further finds that the original decree rendered, while providing the right to defendant to visit the minor child of said parties, was not sufficiently specific as to the time and place, and the court further finds that said minor is kept at the home of one Jesse Davis, the father of plaintiff, and that said place is not a suitable place for said defendant to visit said minor child. It is therefore ordered by the court that the said defendant shall have the right to visit said minor one hour each month hereafter at the home of one R. M. Hyatt until the further order of the court, upon the following conditions: That said defendant promptly pay all the unpaid costs which have been made in the above-entitled cause, and that he promptly pay to the clerk of said court, in addition thereto, $ 2 each and every month, to be applied for the care, support, and education of said child, this order to be subject to modification or cancellation at any time upon the failure of said defendant to show the proper affection for said child and a proper disposition to contribute to the care, support, and education of said child. Said plaintiff to notify defendant three days in advance of the hour fixed by plaintiff for visiting said child, said notice to be by mail; the time to be fixed to be reasonable.
Plaintiff herein did not pay the costs until February 12, 1910, and has at no time paid the $ 2 per month provided for in the modified decree. Plaintiff's former wife continued to live with defendant, her father, and some time in June of the year 1909, the child became sick, and as a result thereof died on or about July 16, 1909. Arrangements for the funeral were all made by the mother, and the defendant consented that it be held from his home. He at no time gave any directions as to how the services should be conducted or who should be permitted to attend; but there was enough testimony to justify a jury in finding that he, defendant, said to one Gray, who inquired for plaintiff as to whether or not he, plaintiff, could attend the funeral, "That he did not want them coming around him, and if they did he would do something they had not ought to do." Indeed, it is admitted in defendant's answer that at all times since the divorce decree was rendered he had denied plaintiff the right, privilege, or opportunity of entering in or upon his premises for any purpose. This denial of plaintiff's right to go upon the premises seems to have been due to the fact that, some time after the separation of plaintiff and his wife, he, plaintiff, and defendant had an altercation over the matter in which plaintiff assaulted the defendant and knocked him down in one of the streets of the city of Boone.
The decrees entered in the divorce case, from which we have quoted, were not appealed from and were therefor binding upon the plaintiff herein. By the terms thereof he was in effect forbidden from visiting his child at defendant's home, and was prohibited from visiting him elsewhere unless he paid the costs of the proceedings and the sum of $ 2 per month for the child's support. Neither of these things was done, so that it is clear plaintiff had no right to visit the child while at defendant's home. This is virtually conceded. But plaintiff insists that when the child became sick and finally died these facts so changed the situation that, as a matter of law, he had an absolute right not only to visit the child while alive, but also to attend its funeral after death. We do not think that the sickness of the child had the effect of modifying the decrees from which we have quoted. They were either absolute in terms or so qualified that plaintiff had no rights thereunder until he performed the conditions imposed by the decrees. This he did not do.
Assuming that the death of the child so changed conditions as that the decrees were inapplicable, we then have the question, Had plaintiff either an absolute or qualified right to attend the funeral of his child which was being held from defendant's house? He, of course, obtained no right by reason of his former wife having taken up her domicile with her parents. They were as much strangers to each other as if they had never been married. True, the child was of his own blood, but by decree of court he had lost all right of custody or control of the child, and it was for the mother to say how the body should be controlled, where the funeral services were to be conducted, and where and how the child should be buried. By plaintiff's misconduct (as conclusively established by the decree) he had forfeited all rights to the custody and control...
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