Ormsby v. Rhoades

The opinion of the court was delivered by Rowell, J. The plaintiff’s claim, shortly stated, is this; that in order to entitle the deféndant to be treated as having stood in loco parentis to .him, he must have had the legal custody of his. person, and have been bound to support, protect, and educate him during the time in question, which he did not have and was not bound to do ; that the defendant took him from the asylum into his family of his own motion, without authority, and could not force a quasi family relation upon him, being .an infant, so as to now shield himself from paying what his services were worth above what he received by way of support at his hands ; that defendant can stand, therefore, only upon the ground of an agreement, express or implied; that no. express agreement appears, and that, as plaintiff was incapable by reason of infancy of contracting, the law will not imply an agreement against him, as it will not imply a promise against one incapable of making a valid one; that he was clearly not a visitor in defendant’s family, but was 'either a boarder or a servant there, and that, whichever he was, he is .entitled to recover. But it is not true that in order to entitle the defendant to be treated as having stood in loco, parentis to the plaintiff he must at the time have had the legal custody of his person, and have been bound to support, protect, and educate him; and Blackstone and Kent, cited to that proposition, do not sustain it, [510] and the cases are the other way. Thus, in the absence of any statutory provision imposing the obligation, a step-father is not bound to maintain his step-children, and, consequently, is not entitled to their earnings, nor the control of their persons.—Tubb v. Harrison, 4 T. R. 118; Cooper v. Martin, 4 East, 76; Freto v. Brown, 4 Mass. 675; Bartley v. Richtmyer, 4 N. Y. 38; 2 Kent Com. *192—but yet he may stand in a parental relation to them; and if he takes them into his house, and they become a part of his family, he will be deemed to stand in such relation, and to be entitled and responsible accordingly as long as that relation exists. Stone v. Carr, 3 Esp. 1; Lord Ellenborough in Cooper v. Martin, 4 East, 76, 82; 2 Kent Com. *192. But when they cease to be members of his family, as they may at will, then whatever custody and control he had of them is gone, and his rights and liabilities on account of his former relation to them cease ; and they cannot recover of him for services rendered while that relation existed, though' minors at the time, and though their services be worth more than their support, unless there was an express agreement to. that effect, or something to show that such was the understanding or expectation of the parties; for in such circumstances a promise to pay wages will not be implied— Williams v. Hutchinson, 3 N. Y. 312—the relation rebuts such an implication. In Manvell v. Thomson, 2 C. & P. 303, an uncle who had brought up a niece, but of whom the case does not show he had legal custody, was held to stand in loco parentis to her; and, on showing the smallest degree of service, was allowed to recover damages for her seduction, the same as a father. And in Irwin v. Dearman, 11 East, 23, the plaintiff, who had taken into his family and bred up for several years the daughter of a deceased friend, was allowed to recover damages for her seduction ultra the mere loss of service; on the ground that he stood in loco parentis to her. So in Haggerty v. McCanna, 25 N. J. Eq. 48, a step-father, having voluntarily assumed the care and support of his step [511] daughter, was not allowed compensation for her support because he stood in loco parentis to her. It is further contended that because the plaintiff was an infant, therefore the defendant could not stand in the relation, of a parent to him, and thereby subject him to the legal .consequences of that relation, because he could not have bound himself in the premises by an express contract with the defendant, and hence cannot be deemed to have assented by implication to that relation and its consequences. But this is not so ; for an infant can bind himself by an express contract for necessaries, and if by an express contract, then by an implied contract as well; and surely food and shelter, care and nurture, in the defendant’s home, were necessaries for the plaintiff in his circumstances. Thus, in Stone v. Dennison, 13 Pick. 6, an infant contracted specially to serve the defendant till of age for his board, clothes and education; and it was held that,he could not repudiate the contract and recover for his services because they were shown to be worth more than the stipulated compensation. The case was put upon the ground, that .the contract was for necessaries. In Williams v. Hutchinson, 3 N. Y. 310, the assent of an infant to an arrangement to waive the right to claim wages, for his services was implied from the parental relation the defendant sustained to him when they were rendered. We take it to be sound law, that whenever one stands in the relation of a parent to an infant who needs his care and support, and faithfully discharges the duties of that relation, there being no express contract to the contrary, nor any circumstances showing a different understanding or expectation of the parties, there can be no recovery for services on the one hand, nor for care and support on the other, though one happens to be worth more than the other. This case comes clearly within this principle, and therefore the plaintiff cannot recover. Judgment affirmed.