Treschman v. Treschman

• Decision Date: 15 November 1901
• Citation: 61 N.E. 961,28 Ind.App. 206
• Parties: TRESCHMAN v. TRESCHMAN.
• Court: Indiana Appellate Court

28 Ind.App. 206

61 N.E. 961

TRESCHMAN

v.TRESCHMAN.¹

Appellate Court of Indiana, Division No. 1.

Nov. 15, 1901.

Appeal from superior court, Tippecanoe county; W. De Witt Wallace. Judge.

Action by Edith Treschman, by her next friend, against Lena Treschman. From a judgment for plaintiff, defendant appeals. Affirmed.Hanley & Wood, for appellant. Haywood & Burnett, for appellee.

ROBINSON, J.

Action by appellee, by next friend, for damages for alleged personal injuries resulting from an assault and battery committed by appellant. Complaint in one paragraph. Answer in denial. Trial by jury, and verdict for appellee. Motion for a new trial and in arrest of judgment overruled.

The complaint avers that appellee is 13 years old, and has always lived with her father; that appellant is her stepmother, and was married to her father about 18 months prior to the time appellee received the injuries complained of; that, a few months after the occurrence of the injuries, appellee's father and stepmother ceased to live together, and have been living apart ever since; that about 6 months after the marriage, and for about a year previous to the injuries, appellant treated appellee cruelly and inhumanly, frequently striking and beating her; that appellee performed her duties as a child toward her stepmother as best she knew how, and was dutiful and kind to her; that, before injured, appellee was a strong, healthy girl, had good eyesight, attended public school, and helped her father and stepmother with the work about the house; “that on the ----- day of April, 1897, the defendant became angered and enraged at the plaintiff, without any fault of the plaintiff and without any cause, angrily and maliciously seized the plaintiff and grasped her with her hands on each side of plaintiff's head by plaintiff's ears while standing in front of her, and, with anger, rudely, and with great force, jammed her head back against a brick wall, and repeatedly, five or six times, struck the back of plaintiff's head with great force against said brick wall; that the plaintiff, while thus receiving said blows, on account of the intense pain caused by them, screamed, whereupon plaintiff's father rushed to her assistance and broke defendant's hold upon her, when plaintiff fell to the ground unconscious because of the injuries to her head that she had received as aforesaid; that she soon after regained consciousness, but suffered intense pain at the back of her head all day, and the following night slept little, if any, during the night, on account of said pain; that the next day she continued to suffer from severe pains in the head, and has so suffered almost if not quite continuously ever since”; that a few days after receiving the injuries she could not bear any weight on her heels in walking, because of the pain to her head caused by the jar, and that ever since she has had to walk with the greatest care, on account of the severe pain in her head caused by the slightest jar. It is further averred that on account of the injuries she could not read or study, and that to do so aggravated her injuries and increased her suffering, and in consequence she has been compelled to quit school, and is not able to attend school; that the injuries to her head “have caused an inflammation to the membrane covering the cranium, and have produced concussion or inflammation of the membranes of the brain, and have also affected that part of the brain where the sensation of vision is received, resulting in an inflammation of the optic nerves, injuring the eyesight to an extent of not less than eighty per cent. loss thereof, with great danger of total blindness following”; that on account of the injuries she suffers with constant and severe pains in the head, is nervous and sleepless, appetite impaired, her nervous system affected, and she requires constant care and attendance; that her injuries are of a permanent character and incurable, and are growing worse; and that thereby she has been rendered a permanent invalid, incapable of study or acquiring an education, and incapable of labor or of caring for herself.

The sufficiency of the complaint is questioned for the first time on appeal. Against the complaint it is argued that as the stepmother stands in loco parentis to the infant stepchild, and as the relation of parent and child existed between appellant and appellee, it is against the policy of the law to permit an action like that at bar to be maintained. That a stepfather or a stepmother stands in loco parentis to an infant child is true, in a limited sense. A person cannot be said to occupy that relation unless he is invested with the rights and charged with the duties of a parent. A father is legally bound to support his child, but he is not legally bound to support a stepchild. He may lawfully decline to receive the children of his wife by a prior marriage into his family. He may voluntarily assume such a relation to stepchildren that the doctrine as to compensation for services and necessities will be the same as with reference to his natural children. But his marriage to the mother of infant children does not of itself place him in loco parentis to such children. Grossman v. Lauber, 29 Ind. 618. While the infant children of the wife by a former marriage may or may not be members of the family after the new relation is formed, yet it necessarily follows that the infant children of the husband by a prior marriage are members of the family into which the stepmother has come by marriage. But let it be admitted that the stepmother stands in loco parentis to such infant children; what legal duties are imposed upon her toward such children? While the father lives, is there any duty the mother owes the children that may be enforced? Do not the reciprocal rights and duties of mother and infant children, while the father lives, rest entirely upon principles of natural law? She cannotbe held for the child's support. She has no individual right to the child's services. We quite agree with appellant's counsel that courts should hesitate to invade the privacy of the home, or to question the mutual confidence which should obtain in the household. But this privacy and mutual confidence should not be permitted to shield the evil doer from the consequences flowing from a palpable wrong. They are not sufficient to shield the parent from a criminal prosecution for an assault and battery on his child. Hinkle v. State, 127 Ind. 490, 26 N. E. 777;Hornbeck v. State, 16 Ind. App. 484, 45 N. E. 620. Nor can it be said that such criminal prosecutions are ample to correct and punish all such abuses. They may afford protection from parental violence and wrongdoing thereafter, but the fine which the state has imposed leaves the clear and palpable injustice to the individual child still unredressed. It is not to be anticipated that acts so abhorrent to the family relation will be committed, but when they have been committed, and have been committed malo animo, as here charged, and an injury inflicted which can never be compensated for thereafter through the family relation, howsoever exemplary it may be, courts should not hesitate to redress the wrong in so far as it may be redressed through an action for damages. We are not here concerned with the right of an adult child to sue a parent for a tort committed during infancy. There may be good reasons for denying this right where the minor child, after the injuries, continues, possibly for many years, at home and unemancipated, and upon arriving at majority seeks to recover damages for such injury. And it may be admitted that there may be good ground for questioning an infant child's right of action against its father or against the mother, as head of the family, but we are not prepared to say that in no case should such an action be allowed. In Reeve, Dom. Rel. (4th Ed.) p. 357, in discussing the right and the duty of a parent to correct his minor child, the author says: “The true ground on which this ought to be placed, I apprehend, is that the parent ought to be considered as acting in a judicial capacity when he corrects, and, of course, not liable for errors of opinion; and although the punishment should appear to the triors to be unreasonably severe, and in no measure proportioned to the offense, yet, if it should also appear that the parent acted conscientiously and from motives of duty, no verdict ought to be found against him. But when the punishment is, in their opinion, thus unreasonable, and it appears that the parent acted malo animo, from wicked motives, under the influence of an unsocial heart, he ought to be liable to damages. For error of opinion he ought to be excused, but for malice of heart he must not be shielded from the just claims of the child.” In the case at bar when the suit was brought the father and appellant had for some time been separated and living apart. The family relation, so far as appellant was concerned, had ceased to exist. But, aside from that, the facts averred in the complaint show that a grievous wrong was done appellee, and that it was maliciously done. From the particular facts averred, it would be a denial of justice to say that no right of action exists, because of the parental relation which existed between the parties at the time the injuries were inflicted.

Under the motion for a new trial it is argued that certain competent evidence was excluded, and incompetent evidence admitted; that certain instructions were improperly given; and that certain others tendered were improperly refused. Only such objections to the admission of evidence as are made to the trial court will be considered on appeal.

The father of appellee testified that two of his daughters came home in the afternoon of the day of the alleged assault and battery. He was asked if he informed these daughters of the injury or trouble, and, over appellant's objection, he answered that he did. The witness did...