Eustice v. Plymouth Coal Co.

[305] Opinion, Mu. Justice Paxson : It is a rule as old as the common law that the father is entitled to the custody and control of his minor children, and to receive their earnings. The act of May 4, 1855, P. L. 430, has made some modification of this rule. The third section of said act provides: “ That whensoever any husband or father, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for his child or children, the mother of such children shall have all the rights and be entitled to claim and be subject to all the duties reciprocally due between a father and his children, and she may place them at employment and receive their earnings, or bind them to apprenticeship without the interference of such husband, the same as the father can now do by law; Provided always, That she shall afford to them a good example and properly educate and maintain them according to her ability; And provided, That if the mother be of unsuitable character to be intrusted as aforesaid, or dead, the proper court may appoint a proper guardian of such children,” etc., etc. It is plain from the language of this act, in the cases to which it applies, that it gives no power to the mother to place her children at employment and receive their wages, unless she is a woman who affords them a good example and is of suitable character to be intrusted with their charge. The plaintiff brought suit against the defendant company to recover the wages of her son, a boy of thirteen years of age, who had been for some time in their employ. During that time he had been living with his uncle. The company defended upon two grounds; (a) that the boy’s wages had been paid in full, and (5) that the plaintiff was a woman of bad character for chastity, and not entitled under the act of 1855 to claim the earnings of her son. The defence was sustained upon both grounds. It appears that the husband of the plaintiff and the father of the boy was living at the time of the trial. The plaintiff alleges that he deserted her about ten years ago. It is not clear, however, that he deserted his child, even though he may have given the mother nothing for his support. The evidence referred to in the first assignment was offered [306] for the purpose of showing that the boy was in charge of his father, and so far as it tends to prove this, it was competent. The second assignment goes to the question of the plaintiff’s character. She was asked the question whether she had a Mr. Coursen arrested for adultery with her, and she answered yes. There was considerable other evidence, not objected to or assigned for error, which tended to show that her general character was bad. The plaintiff contended that all this was irrelevant, and that her character was not in issue. We think it was, under the act of 1855. It is true the law presumes her character to be good, and she might not therefore be called upon affirmatively to establish it in order to entitle her to recover, yet when such presumption is destroyed or rebutted, and she is shown to be of unchaste character, she can no longer stand upon the legal presumption. It is only by the act of 1855 that she can recover, and that act does not help her if she is a woman of bad example, and of unsuitable character to be intrusted with the control of her children. We find no error in this record. Judgment affirmed.