Summary
holding that PL 290:18, current amended version at 463:18-a, does not revoke "all authority of the parent over the child"
Summary of this case from In re Jessie EOpinion
Decided April 2, 1929.
A father being entitled to the services of his unemancipated minor child may maintain case against a third person for negligence causing loss thereof.
The appointment of a guardian over a minor under P. L., c. 290, s. 1, does not revoke all authority of the parent or deprive him of his right to the minor's services; and the parent's right to the services and earnings of the minor, and to maintain an action for loss thereof by the negligence of a third person continues so by long during minority as the minor remains under his control and is supported by him.
Unless and until a guardian appointed under P. L., c. 290, s. 1, has justifiable cause to interrupt the performance of the parental duties there is no emancipation
An action by a parent for loss of the minor's services caused by a third person's negligence is not barred or limited by a prior judgment recovered by a guardian of the minor, appointed under P. L., c. 290, s. 1, for the damages suffered by his ward where no claim was made for any damage sustained by the parents.
A mother may be a proper party plaintiff to an action by the father of a minor for loss of his services by negligence; the right to service being correlative to the duty to support, accrues to the parent who actually performs the duty and whether either or both parents are entitled to compensation in such case is a question of fact.
The provisions of P. L., c. 290, s. 6, giving to a guardian the full custody and control of his ward and of his estate and earnings, apply only to guardians appointed on petition of the public authorities.
ACTION, by parents to recover for loss of services of the plaintiffs' minor son, Alphonse, and expenses incurred by reason of an injury to the minor while in the defendant's employ.
The injury was received on May 15, 1922. Alphonse was then seventeen years of age, and living with his parents in Somersworth, in the county of Strafford. On September 18, Joseph Lessard of Exeter in the county of Rockingham, a half brother of the minor, on his own petition but with the consent of the parents and by election of the minor, was appointed guardian by the probate court of the latter county. On the same day the guardian brought suit for his ward against the defendant in the superior court for that county, and at the January term, 1923, recovered the damages suffered by his ward. In that action no claim was made for any damages sustained by his parents.
The present action was brought on May 28, 1923, to recover for the loss of the services of the son from the date of the injury to November 3, 1926, the date of the boy's majority which he had attained before the trial; and for expenses incurred for cure. The plaintiffs excepted to a ruling that damages be limited to the time intervening between the date of the accident and the date of the appointment of said guardian, and to a directed verdict for the restricted period.
The plaintiffs offered to prove that the boy was incapacitated from earning by reason of the accident to the time he was twenty-one; that he had always had his residence with his parents who had never consented to any change thereof; that he had no property in Rockingham county; that the father did not relinquish any control over the minor or knowingly or voluntarily give up any right to his custody, education or control; that, on the other hand the father did in fact control and support the boy at his own home in Somersworth during all the period from the time of the injury until the boy reached twenty-one years of age except for a period of about ten days when the boy stayed with his said brother at Exeter; that the boy was all the time under the control of his parents and never emancipated; and that the father paid the boy's hospital bills and for his medical attendance. These offers of proof were denied and the plaintiffs excepted.
On March 11, 1924, Joseph's resignation as guardian was accepted by the probate court of Rockingham county, and on April 1, 1924, the mother on the petition of herself and the minor was appointed guardian in Strafford county.
The plaintiffs excepted to the denial of their motion to make the mother, as guardian, a party, while the defendant excepted to the denial of its motion to strike out the name of the mother in her individual capacity as a party plaintiff. Transferred by Oakes, J.
William H. Sleeper (by brief and orally), for the plaintiffs.
Hughes Burns and Lucier Lucier (Mr. Burns orally), for the defendant.
It is conceded that the injury to the minor was due to the defendant's negligence and that independent rights of action accrued, one in the minor for the injury, and the other in the father for the loss of services. The principal issues raised by the exceptions have to do only with (1) the period for which recovery for loss of services may be had, and (2) the proper parties plaintiff.
1. The court ruled that there could be no recovery after the date of the appointment of the brother as guardian on the ground that such appointment, as a matter of law, terminated parental control and, per consequence, the parents' right to the child's service. This was error.
At common law the father was entitled to the services of his minor child during minority (Gale v. Parrot, 1 N.H. 28, 29; Campbell v. Cooper, 34 N.H. 49, 62) and could, therefore, recover of a third person whose wrongful conduct deprived him thereof. In this country it is generally held that the right to such services grows out of, and is correlative to, the parental obligation to maintain and train his offspring. Id., 62, 63. It accrues to the father by way of compensation for "the support, nurture, care, protection and education actually afforded and furnished the child" during minority. Hammond v. Corbett, 50 N.H. 501, 505, 508; Campbell v. Cooper, supra, 64; Chaloux v. Company, 75 N.H. 281, 285; Jenness v. Emerson, 15 N.H. 486, 489, 491; Hillsborough v. Deering, 4 N.H. 86, 95. Such right can be lost only by emancipation. Emancipation may be accomplished by agreement express or implied; it may arise from conduct of the parent inconsistent with his claim to the further obedience or service of the child; or it may occur by operation of law.
The defendant's contention is that the brother's guardianship worked an emancipation by law. In support of this claim it cites P. L., c. 290, s. 6, which in terms gives to a guardian the "full custody and control" of his ward and "his estate and earnings." The provisions of this section are applicable only to guardians appointed on petition of the public authorities. Such petition must be supported by proof that "the parents . . . are unfit to have the custody and control of said minor and of his estate and earnings, or that his parents are living apart and the circumstances are such that the interests of such minor require that a guardian be appointed." It is expressly provided that such appointment shall not relieve the parents from their obligations of support, s. 12. The provisions dealing with this special guardianship, however, have no bearing upon the question under consideration. The guardianship here was not under s. 6, but under s. 1 which provides for the appointment of "a guardian to any minor whenever there is occasion." The exigencies which may call for such guardianship of a minor are numerous, and such an appointment does not necessarily carry any implication of the unfitness of the parents to have the custody of the person of their children or to perform their natural obligations to them.
Whether there was an "occasion" within the meaning of the statute for the appointment of the guardian in Rockingham county, and, if not, whether the legality of such appointment may be attacked collaterally for want of jurisdiction are questions which need not be answered in the determination of the issues here, and the same have not been considered.
P. L., c. 290, defines the powers and duties of a general guardian. Sec. 18, "Every guardian shall have the custody and tuition of the minor, and the care and management of his estate, and shall continue in office until the minor arrives at the age of twenty-one years, or until discharged"; s. 19, "Every guardian of a minor shall inculcate habits of sobriety and industry in his ward, and may employ him in any suitable labor . . . . "The position of the defendant appears to be that the appointment of the guardian with such powers and duties ipso facto revokes all authority of the parent over the child, and that with the passing of such authority all rights to the child's services are lost. We find no such necessary inconsistency in the powers and duties of parents and guardians as to warrant such a conclusion. The appointment of a guardian does not of itself relieve the parents and child of their natural obligations to each other and does not necessarily interfere with the continued performance thereof. It is frequently the case that parents, abundantly competent to maintain and educate a child, are wholly unfitted to manage its property rights or to protect such rights in litigation. It is not infrequent, in such cases, for the parents to secure the appointment of a stranger as guardian with the design that the latter takes care of the property rights of his ward without disturbing the natural relations of parent and child. In such a case it is not unlawful for the guardian to waive his superior right to the custody of the person of his ward in order that the parental duties may be the better performed. The right of the parents to the service and earnings of their minor children continues so long, during minority, as the latter remain under their control and are supported by them. Hillsborough v. Deering, supra. See Riley v. Jameson, 3 N.H. 23, 29. The mere power of the guardian to take custody of the minor does not cut it off. Unless and until the guardian has justifiable cause to interrupt the performance of the parental duties upon which the parents' right to the services depends there is no emancipation. Then it is the occasion for the guardian's action and not the guardianship that works the emancipation. It would be a travesty of the law if a guardian's unexercised right to custody were to be held to deprive the parents of the right to the obedience and service of the ward to which the continued performance of their obligation entitles them. No such rule of law exists.
Reliance is placed by the defendant upon expressions employed by this court in Aldrich v. Bennett, 63 N.H. 415, and in Hammond v. Corbett, 50 N.H. 501, 508, to the effect that the right of a parent to the earnings of his minor child is commensurate with the right of custody (Aldrich v. Bennett, supra), and that such right of custody may be superseded by the appointment of a guardian. Hammond v. Corbett, supra. In neither case was the court dealing with any conflict between the relative rights of parents and other guardians. The expressions are abstract statements of law which afford no support for the proposition urged by the defendant that the mere appointment of a guardian terminates the obligations and compensating rights of parents.
While prima facie the right to custody is in the parents until a guardian is appointed (State v. Richardson, 40 N.H. 272, 274; P. L., c. 290, s. 4) and then in the guardian (Id., s. 18) the right of neither is absolute. Chaloux v. Company, 75 N.H. 281, 285; Campbell v. Cooper, 34 N.H. 49, 63; Woodworth v. Spring, 4 Allen 321, 326. Both are charged with trusts to be exercised for the child's best interests, and each is subject to the control of court. State v. Richardson, supra. While the relation of the one and the official character of the other are important, other considerations may be of controlling significance. The courts have authority, upon appropriate proceedings to make such an award of the custody as will best promote the interests of the child. Hanrahan v. Sears, 72 N.H. 71, 73; State v. Richardson, supra, 273. See White v. White, 77 N.H. 26, 30; Gage v. Gage, 66 N.H. 282, 286; P. L., c. 350, s. 1. A guardian is no less amenable to the orders of the court than are the parents. The welfare of the child and the good of its estate may require that the custody of the person of the ward be placed with the parent, leaving with the guardian the administration of its property. If it be in the best interest of his ward that the guardian shall exercise his trust as respects tuition and the inculcation of habits in his ward (P. L., c. 290, ss. 18, 19) through the instrumentality of the parents such course may be adopted by the parties without a compelling order of the court. In fact such an amicable division of responsibilities is common and is to be commended. It appears to be the contention of plaintiffs' counsel that such was the case here. The only official acts of the guardian disclosed by the record were the bringing and prosecuting the minor's claim for his damages against this defendant. The custody and support of his ward remained undisturbed with the parents. The plaintiff should have been allowed to show these facts.
2. There was no error in the ruling that the mother was a proper party plaintiff. Our present statute (Laws 1911, c. 104, s. 1; P. L., c. 290, s. 4) constitutes the father and mother joint guardians of the persons, and gives them equal powers, rights and duties, in respect to such a child. The right to service, being correlative to the duty to support, accrues to the parent who actually performs the duty. Whether the father or the mother or both have entitled themselves to compensating services of the minor is a question of fact. Their relative or respective rights cannot be fixed by a rule of law in advance of the submission of the evidence.
The action under the amended writ being based upon the parental right to recover the loss of the services of the child during minority, neither the child nor its guardian was a proper party plaintiff. Unless emancipated, a minor cannot recover of the defendant for the loss of wages during his minority. The ruling denying the motion to make the mother, as guardian, a party was, therefore, correct.
New trial.
All concurred.