Kempson v. Goss , 69 Ark. 451 ( 1901 )

Wood, J.,

(after stating the facts). In the absence of a statute requiring it, one is not bound to maintain the minor children of his wife by former husband. But where he voluntarily assumes the parental relation to such children, under circumstances that “raise a presumption that he has undertaken to support them gratuitously, he cannot afterwards claim compensation for their support.” In re Besondy, 32 Minn. 385, S. C. 50 Am. Rep. 579. And it is well settled by the authorities that where he takes such children into his family, and keeps them as a part thereof, standing in loco parentis to such children, he is subject to the corresponding duties and liabilities of such relation, one of which is to suitably maintain and provide for them. Rodgers, Dom. Rel. § 496, and numerous authorities cited; Schouler, Dom. Rel. § 273, and authorities cited. The duties and liabilities grow out of the relation, and cease when it ceases. The relation may end at any time by the election of either. Rodgers, Dom. Rel. § 496.

Applying these principles to the facts, if it could be said that appellant, so long as he lived with appellees and kept them as a part of his family, stood to them in loco parentis, this certainly was not the case after he left them and established his home at another place, and indicated his purpose thereby no longer to treat them as part of his family. The purpose not to be so treated was as clearly manifested by the appellees in the institution of this suit for the use and occupation of the premises. At least, these were questions which the court might have well submitted to the jury under proper instructions. The court’s refusal to permit evidence other than that of appellant himself, as to the stove and provisions furnished appellees after appellant left them, was error, and the instruction, under the proof, was not so limited and qualified as to make a correct statement of the law.

The articles furnished appellees, it appears, were for their necessary support. As the jury was instructed that it was -the duty of appellant to provide for the ajopellees, the items mentioned by way of set-off and counter-claim could not 'have been taken into consideration. We believe that the errors herein indicated can be cured by a remittitur of $24.27, the amount of the items actually specified in the amended answer, and if this is done in ten days the judgment will be affirmed; otherwise, reversed and remanded for a new trial.