Shields v. O'Reilly

• Decision Date: 06 October 1896
• Citation: Shields v. O'Reilly, 68 Conn. 256, 36 A. 49 (Conn. 1896)
• Court: Connecticut Supreme Court
• Parties: SHIELDS v. O'REILLY.

36 A. 49

68 Conn. 256

SHIELDS

v. O'REILLY.

Supreme Court of Errors of Connecticut.

Oct. 6, 1896.

Appeal from district court of Waterbury; Walsh, Judge.

Action by Catherine Shields against Timothy O'Reilly for board, medicine, etc., furnished to the wife and child of defendant.There was a judgment for plaintiff, and defendant appeals.No error.

Charles G. Root, for appellant.

John O'Neill and William Kennedy, for appellee.

TORRANCE, J.This is an action to recover compensation for support furnished to the wife and child of the defendant.The complaint contains two counts, the first for the recovery of the amount claimed to be due on account of the wife, and the second for that due on account of the child.The defendant filed a general denial to each count, and also denied his liability upon either, because of the facts set up by him in his special defenses.The case was tried to the jury, who found the issues for the plaintiff, and assessed her damages at $400.The present appeal is based wholly upon the charge of the court with reference to the liability of the defendant, under the second count, for the support of the child.

The following are the principal facts claimed to have been proved by the parties, which have a bearing upon that part of the charge of which the defendant complains: The defendant and his wife, Mary, who was a daughter of the plaintiff, intermarried in April, 1890.The child in question, the issue of that marriage, was born in February, 1891.On the 27th of March, 1892, the defendant brought the child to the plaintiff's house, and, according to the plaintiff's claim, left it in her care, and promised to pay her therefor.The defendant denied that he promised to pay her.On the 29th of April, 1892, Mary left the defendant's house, and they never lived together after that date.The child remained in the custody of the plaintiff, and was maintained and cared for by her from March 27, 1892, until April 12, 1893.On that day Mary took her child from the custody of the plaintiff In Southington, and carried it to Naugatuck.Next day the defendant went to Naugatuck, and got the child, and carried it back to Southington; and on the succeeding day Mary came to Southington, got possession of the child, and took it again to Naugatuck.On the 20th of April, 1893, Mary brought a suit for divorce against the defendant, on the ground of intolerable cruelty, and obtained in said suit, upon her ex parte application, an injunction against the defendant restraining him from in any way interfering with her custody of the child until the further order of the court.The injunction was served on the defendant on the 21st of April, 1893, and the complaint for divorce was duly returned to court, and was thenceforward pending therein up to the time Mary died, on the 13th of August, 1894.The defendant never attempted to have the injunction dissolved or modified.On the 22d of April, 1893, Mary brought the child to the plaintiff to have her care for and maintain it; and from thence to the 14th of September, 1894, it remained in the care and custody of the plaintiff, and was supported and maintained by her.On the 14th of September, 1894, the defendant took the child into his own care and custody, where it has since remained.The plaintiff claimed to recover, on account of her care and maintenance of said child from March 27, 1892, to September 14, 1894, the sum of $568.Mary had no property during all of said period, and from the time she left her husband, in April, 1892, to the 1st of January, 1894, she did not earn enough to pay her own expenses; and from January 1, 1894, to the time of her death in August of that year, she was sick with consumption, and unable to perform any kind of labor.The defendant has never paid the plaintiff anything for or on account of the support and care so furnished to his child.While the child was at the plaintiff's house, between March 27, 1892, and April 12, 1893, the defendant often visited it there, and knew that the plaintiff was caring for and supporting it.He claimed to have proved that the plaintiff, in April, 1893, when he asked her how much he owed her on account of the child, had replied, "Not a cent"; but he admitted that something had been then said about making out a bill against him for such support; and he further claimed to have proved that he was willing and abundantly able to support the child during the existence of the injunction, if he could have had the custody of it.

The defendant requested the court to charge the jury that, if they found that the plaintiff, when furnishing board to and caring for said child prior to April 12, 1893, "did not intend to charge the defendant therefor, the plaintiff could not collect from the defendant for board furnished to or expenses incurred for said child prior to said date."The court refused to charge as requested, and charged upon this point as follows: "The plaintiff claims that in March,

1892, she took the child, under an express agreement, made by the defendant with her, that she would care for it, and he would pay her for so doing.* * * The defendant denies making any such agreement, and claims that the child was absent from him against his wish.* * * If you find that there was an agreement, made between the plaintiff and the defendant, that the defendant should pay the plaintiff for the board, clothing, and care of the child, then you should render a verdict in favor of the plaintiff for such sum as you may find to be a reasonable compensation for the care of said child during the time any such agreement may be found by you to exist."The defendant further requested the court to charge the jury that, after the service of the injunction upon the defendant, and while it remained in force, "in the absence of any request by the defendant to the plaintiff to furnish board, lodging, and care to said child, or of a promise...