Schoenberg v. Voigt

Graves, J: The plaintiff sued on the common counts to recover for services of his minor son. The jury found for defendant, and plaintiff asks a review of certain questions on a case made. The young man’s service was peddling beer. There was evidence.tending to show he had been emancipated by plaintiff, and that on engaging with defendant he agreed to answer for any beer he should carry out and for which he should fail to bring back beer tickets or cash, and that he proved untrustworthy and knavish, and embezzled an amount exceeding all unpaid wages. Some objections of plaintiff’s counsel appear which proceed upon the idea that the investigation into the dishonest and criminal conduct of young Schoenberg was for the purpose, of setting off the damages caused by his wrong, against the claim made for his wages. The record is not so understood.- The purpose of the proof was not, it is supposed,, to make out set-off, but to prove the circumstances of the service, and show that it was not merely worthless, but positively injurious to a large amount. And this was lawful. The action was for what the identical service of [312] ilie young man .was fairly and reasonably worth, and- the investigation of that subject necessarily included an inquiry into- his behavior and fidelity. The plaintiff, testifying in his own behalf, stated that his son was born November 9th, 1854, and from the fall of 1874 to the month of May following carried on the wood business with him, but in February afterwards engaged with defendant. He then, in answer to his counsel, stated further that the young man worked for Captain Ralph a little over a year. His counsel then inquired who gave the son permission to work for Captain Ralph, and the court, on objection, overruled the question. It is argued that the question was a proper one to elicit an answer bearing on the claim that the son was emancipated when he entered defendant’s service. There would be force in this if it appeared in any way that the service or going into service for Captain Ralph was not so early as to' be too remote in point of time. If on the occasion of the hiring to Captain Ralph the plaintiff’s consent was sought, it went to show that emancipation had not then occurred, but it could not weigh in regard to the situation at a considerably later date. The fact of emancipation may take place suddenly and by express arrangement, or it may occur gradually and by conduct implying that the parent and child have mutually assented to the child’s release\from parental authority. And in either case the change may be wrought in a short time. Now the record fails to show at what time the young man went into Ralph’s service, and therefore the excluded question does not 'appear to have been material. It does-not appear that what was called for by it could have borne on the young man’s status when he went into defendant’s service. Numerous instructions were prayed. All- requested by defendant, except the sixth and ninth, were given. ’ Of the plaintiff’s requests, the second, third, and fourth wero given in terms, the first, fifth, and sixth with remarks, and the seventh, eighth, ninth and tenth were denied. [313] Plaintiffs first request called for an imperative and unqualified charge that the father is entitled to the earnings and wages of his miuor son. This was plainly improper. Instructions upon the point were given under requests made by defendant. The fifth request of plaintiff implied a claim on the part of defendant which had not been made. The remarles of the court on refusing the request were not objectionable. The sixth request was very obscure and the jury could hardly have understood it if it had been given. The observations of the court were not improper. The seventh request simply embodied certain propositions of fact and conveyed no instruction in point of law. And the other requests which were refused, were not applicable. The charge given is exposed to some criticism, but in the main it is substantially correct, and a careful inspection of the whole case leads to the opinion that the jury were not misled, but on the contrary, were brought to a right conclusion. As no error is discovered of which the plaintiff is entitled to complain, the judgment should be affirmed, with costs. The other Justices concurred.