Kubic v. Zemke

Granger, J. [270] —The controlling issue in the case is that as to emancipation. The facts are practically beyond dispute, except as to what occurred when Henry worked for his father in 1891. Both Henry .and his father were witnesses, and their testimony is in conflict as to important details, bearing on the question of emancipation. There is no question but that he [271] worked under a contract for wages, but Henry says he left the employment because bis father refused to pay Mm; saying to Henry that be was bis -son, that be did not owe Mm anything, arid that be bad to- work for Mm till be was twenty-one. The testimony of the defendant is directly opposed to this; be -saying that be paid seventy-three dollars for five months’ -and twenty days’ work; that Henry left without giving any reason for doing so-, -except that he did not want to stay. The testimony of each is more in detail than we have stated, 'but our purpose is to show the condition of the evidence as to the controlling is-sue, .so as to determine the correctness -o-f the court’s action in taking the case from the jury. To justify the action of the court, we must -be able to say, after giving to defendant the benefit of facts as to which there is a substantial co-nJflict, that a finding for defendant would- not -have had support in the evidence. The question of emancipation turns on the understanding of defendant and Henry. It is the defendant who- pleads emancipation, and -he must establish it. It i-s not to be presumed. -Scboul-er, Domestic Relations (4th Ed.), section 267a. A mutual understanding is -sufficient to constitute -emancipation, and it is not required to be expressed. It may -arise by implication from, the acts and conduct -of the parties. Id. If, as appears by defendant’s testimony, Henry claimed- the right to control his time and- earnings, and defendant assented thereto, and they acted with that understanding, it was .an- emancipation. If, on the other hand, -defendant claimed the right to Henry’s services during his minority, so long as he claimed that right, whether he exercised- the right to have them or not, there could have been no emancipation so as to free Mm from the obligation the law creates between a father and his minor son for support. W-e have no case [272] in this state directly in point on the question we are considering. See Everett v. Sherfey, 1 Iowa, 358; Dawson v. Dawson, 12 Iowa, 512; Johnson v. Barnes, 69 Iowa, 641; Bener v. Edgington, 76 Iowa, 105; Porter v. Powell, 79 Iowa, 151; Cooper v. McNamara, 92 Iowa, 243. These cases bear more or less directly on questions involved, and show what follows complete emancipation. We are clearly of the opinion that it was error for the court to. direct a verdict for plaintiff, under the state of the evidence, and we may add that we think it would have 'been as clearly so to have directed one for the defendant. We think the question of emancipation 'should have been submitted to the jury, under an instruction as to what would constitute emancipation. The judgment is reversed.