Osborn v. Allen

Elmer, J. The first error insisted on was, that the plain- tiff below should have been non-suited for want of sufficient evidence of her husband’s death. But one witness appears to have been examined, who, on his cross-examination, said it was rumored in the neighborhood that the plaintiff was married, and that her husband’s name was Nehemiah Cottrell; the reputation was, that he had left her about sixteen years, and had not been seen or heard of since. One of the plaintiff’s daughters, since her death, had said they did not know whether Cottrell was dead or living. This was all the evidence that the plaintiff ever had a husband, and really proved nothing. But taking it that she had once had a husband, evidence that he had [395] been absent from his family sixteen years, and had not been heard of, was ample proof that he had been absent from the state, or had concealed himself in the state for seven years successively, so as to bring the case within the express terms of the statute, and to raise the presumption that he was dead. Secondly. It was insisted that the plaintiff should have been non-suited, on the ground that a mother, as such, has no right to recover for the wages of her son. That a mother’s relation to her children is somewhat different from that of the father, is undoubtedly true. During his life, no other person can be appointed their guardian, unless he deserts them, and he has the absolute right to control them and receive their earnings. The mother, in ease there is no legal guardian, is guardian for nurture; but this right may be superseded by the appointment of a legal guardian, and after the child arrives to the age of fourteen he may choose whom he will. But our law imposes upon the mother, if of sufficient ability, the duty of supporting her children, (Nix. Di(f. 614, § 26,) and recognizes her right to be consulted in binding them apprentices. Nix. Dig. 22. In the absence of a legal guardian, she has a natural and legal right to control them, and to receive their earnings. In this case it appears that she was the head of the family, and that her son lived with her, and made her house his , home when not engaged elsewhere, and while working for defendant, his washing and mending were done by her. She was accustomed to receive his wages, and received them of the witness, who hired him just previous to his working for the defendant. There was no proof that any wages were paid or offered to the son, or that he ever claimed them. Under these circumstances, I think the court, judging of the facts as a jury might if the trial had been before a jury, had a right to infer that the defendant expected to pay the plaintiff, and contracted with her to do so. So long as the son thought proper to remain subject to the eon [396] trol of the mother, and to work for her benefit, he had an undoubted right to .do so, and his work and labor for others, actually or virtually at her request, was the same as if she had performed the services with her own hands. The judgment must be affirmed. Potts, J. The action was brought by Rebecca Cottrell against Osborn, before a justice of the peace, for the work and labor of her son Thomas, who was a minor. The service and its value were proved. The boy was about nineteen ; made his home with his mother, who had always had charge of the family; and it did not appear whether his father was living or dead: the evidence was, that he had not been heard from for some sixteen years. Mrs. Cottrell recovered judgment before the justice. An appeal was taken to Middlesex Pleas, and she having deceased, her administrator was substituted, and recovered judgment on the trial of the appeal; which judgment, on certiorari, was affirmed in the Circuit Court. The counsel for the plaintiff in error now makes two points. 1, That there was no proof of the decease of the father, nor any evidence upon which the legal presumption of his death could be founded. 2. That even if the father was dead, the mother could not maintain this action. 1. As to the first point, the evidence, .such as it is, must be taken as part of the case. It was introduced by the plaintiff in error, who was defendant below, by way of cross-examination, and he cannot object to it here. It certainly does not make out a case of presumptive proof of death within the strict words of the statute. Nix. Dig. 194, § 4. The witness did not testify that to his knowledge the husband had remained beyond sea, or absented himself from the state, or concealed himself within the state, bat he did testify that the mother had had charge of the family for ten years; that he never saw any one [397] else have charge of it; that the boy made his home with the mother; that he had worked for the witness previously, and he had paid the mother for his services; that the reputation of the neighborhood was, that the father had left her about sixteen years ago, and had not been seen scarcely since ; and that he had not been heard of for sixteen years, so far as witness knew. A case of absolute desertion, continued for sixteen years without any communication or knowledge of his whereabouts, or information whether he be living or dead, may very safely bo taken as sufficient evidence of absence from the slate, or concealment in it. It is within the spirit, if not the strict letter of the statute. For the purposes of this ease, therefore, the court below had a right to presume the father of the boy was dead. 2. Then can the mother support this action ? Upon the maxim quod non apparel non est, we are to take it that the boy interposes no objection, and that he has never had a guardian appointed. It would seem from the evidence, that he has been nurtured and brought up from an early age by this mother, who has provided for him a home and a support, and assumed the duties and fulfilled the obligations of both father and mother to him. This being the case, the court below did right in holding that the defence was not maintained. The defendant had the benefit of the service, and was bound to pay for it. And although there is a conflict of authorities as (o the strict legal right of the mother to recover in all casos where the father is dead, for work and labor performed by her minor children, yet in a case of this kind it ought not to be denied to her. • The judgment should be affirmed. Vredenburgh, J., concurred.