Spurgeon v. Mission State Bank

• Decision Date: 03 December 1945
• Docket Number: No. 13102.,13102.
• Parties: SPURGEON v. MISSION STATE BANK.
• Court: U.S. Court of Appeals — Eighth Circuit

151 F.2d 702 (1945)

SPURGEON v. MISSION STATE BANK.

No. 13102.

Circuit Court of Appeals, Eighth Circuit.

November 6, 1945.

Rehearing Denied December 3, 1945.

Donald W. Johnson, of Kansas City, Mo. (E. E. Thompson, of Kansas City, Mo., on the brief), for appellant.

A. C. Popham, of Kansas City Mo. (Sam Mandell and Cowgill & Popham, all of Kansas City, Mo., on the brief), for appellee.

Before WOODROUGH, JOHNSEN, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

The appellant, a minor, brought this action in a Missouri State court against the appellee, a Kansas bank, engaged in business at Mission, Kansas. The bank removed the action to a Federal court in Missouri on the ground of diversity of citizenship. Appellant's motion to remand was denied. A trial in the District Court resulted in a judgment in favor of appellant. This appeal raises only the question of the jurisdiction of the Federal court. Jurisdiction depends upon whether the minor appellant was, under the facts in this case, capable of acquiring a domicil of his choice, and upon whether his domicil was in Kansas at the times material on the question for decision.

The facts are not in dispute. Appellant's mother and stepfather resided and maintained their home near Queen City in Schuyler County, Missouri. Until shortly before the present action was brought, the appellant lived with his parents, although for three and one-half years the greater part of his time had been spent away from their home. In December 1942, when appellant had attained the age of eighteen years and five months, he left the home of his parents, with their consent to make his way in the world. He had no definite destination in mind. It was understood by him and his parents that he left for the purpose of securing permanent employment wherever it might be found. At the time of his departure from home appellant had finished two years of high school, had spent one year in a Civilian Conservation Camp, and for many years had been accustomed to work for others for compensation. His reputation for industry and integrity was good.

On leaving the home of his parents, appellant went to Kansas City, Missouri, where he remained until he secured employment in a moving picture theatre in Mission, Kansas. He then removed to Mission, as he testified on the motion to remand, for the purpose of making that place his permanent home, and with a view to becoming a citizen of Kansas. Appellant resided continuously in Mission from the time of his removal there in January 1943 until he was called into the army in March 1943. Throughout that period he remained in the employ of the moving picture threatre. Shortly after his removal from Kansas City, Missouri, to Mission, Kansas, he wrote his mother requesting her to send him such of his personal belongings as he had not taken with him on his departure from home, accompanying his letter with money to pay the necessary transportation charges. In a letter to his mother after his entrance into the army, he wrote that his employer in Mission, Kansas, had promised to reemploy him on his discharge from the army, and that the many friends he had made in Mission assured him that he might have a home there as long as he desired. He also advised his mother that he had not maintained communication with his acquaintances in Queen City, Missouri, and that the only persons he missed in the army were the friends he had made in Mission.

Thirteen days after appellant had moved from Kansas City to Mission, this action was brought in the Missouri State court to recover damages which appellant claimed to have sustained as the result of his alleged false arrest and imprisonment by the bank. Appellant's contention is that the facts stated show that he had been completely emancipated by his parents; that, as an emancipated minor, he was capable of selecting a domicil of his choice; and that at all times important to decision here he was a resident of Kansas, which is also the residence of the appellee bank.

Whether the appellant was an emancipated minor at the time of his departure from the home of his parents is a question controlled by Missouri law. Under Missouri law, emancipation of a minor need not be evidenced by any formal contract. Direct proof is not required. The emancipation of a minor is never presumed. The party relying upon it must establish it. Brosius v. Barker, 154 Mo. App. 657, 136 S.W. 18; Singer v. St. Louis, K. C. & C. Ry. Co., 119 Mo.App. 112, 95 S.W. 944. As against his parents an emancipated minor is entitled to the fruits of his labor and compensation for personal injuries, Beebe v. Kansas City, 223 Mo.App. 642, 17 S.W.2d 608, 612, upon the principle that emancipation is the renunciation of parental duties to the minor and a surrender of the parents' right to the minor's services. See also Ream v. Watkins, 27 Mo. 516, 72 Am.Dec. 283; Dierker v. Hess, 54 Mo. 246, where it is held that where a minor is permitted to work for himself and claim and enjoy his own wages, he may purchase and own property independent of his parents' control, even when he continued to live in his father's home; and Evans v. Kansas City Bridge Co., 213 Mo.App. 101, 247 S.W. 213, in which a father was held not entitled to recover past wages paid his deceased minor son, where the father had not performed his correlative parental duties entitling him thereto.

"Generally the father, as head of the family, is entitled to the services of his minor children, or to their earnings, if by his permission they are employed by others. He is also under obligation to support his children during their minority. The right and obligation are correlative, and where the father neglects or refuses to support his child, denies him a home, or abandons him, so that he is obliged to support himself, the law implies an emancipation, and recalls the father's right to the child's services and earnings." Swift & Co. v. Johnson, 8 Cir., 138 F. 867, 872, 873, 1 L.R.A.,N.S., 1161. This case involved an action to recover for the death of a minor, prosecuted for the benefit of the father who had abandoned the child. The court reached the conclusion that there had been an emancipation of the minor and recovery could only be for nominal damages.

A leading Missouri case upon the question under consideration is Brosius v. Barker, supra, in which the court held that where a minor "who is physically and mentally able to take care of himself, has voluntarily abandoned the parental roof and turned his back to its protection and influence, and has gone out to fight the battle of life on his own account, the parent is under no obligation to support him." 154 Mo.App. 657, 136 S.W. 20. The case involved an action against a father to recover the cost of medical and hospital treatment for his minor son who had left his home in Missouri to make his way in the world. The action was defended on the ground that the minor had been emancipated and that the father was not liable. In discussing the question of emancipation the court said, 136 S.W. 19, 20:

"The general rule is that the father is under a legal obligation to maintain and support his infant child. The child comes into the world absolutely helpless and incapable of protecting itself. No creature is more helpless at birth than the human being, yet in some jurisdictions the courts hold that parents who have bestowed life, and have brought into the world these helpless creatures, are under no legal obligation to support or preserve them during the dependent period of their existence. Kelley v. Davis, 49 N.H. 187, 6 Am.Rep. 499; Gordan v. Potter, 17 Vt. 348. But the great weight of modern authority repudiates this doctrine and declares it to be opposed to natural sense of justice. Huke v. Huke, 44 Mo.App. 308; Porter v. Powell, 79 Iowa 151, 152, 44 N.W. 295, 7 L.R.A. 176, 18 Am.St.Rep. 353; Guthrie County v. Conrad, 133 Iowa 171, 110 N.W. 454; Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956 134 Am.St.Rep. 482, 19 Ann. Cas. 326; Ream v. Watkins, 27 Mo. 516, 72 Am.Dec. 283; Philpott v. Missouri Pac. R. Co., 85 Mo. 164; Mott v. Purcell, 98 Mo. 247, 11 S.W. 564; 29 Cyc. 1675; Johnson v. Gibson, 4 E.D. Smith, N.Y. 231; Ramsey v. Ramsey, 121 Ind. 215, 23 N.E. 69, 6 L.R.A. 682; Kubic v. Zemke, 105 Iowa 269, 74 N.W. 748; Gotts v. Clark, 78 Ill. 229...