McGoon v. Irvin , 1 Pin. 526 ( 1845 )

Dunn, C. J.

This was an action of trespass on the case on promises, brought by Irvin, plaintiff below, against McQ-oon, defendant, in the district court of Iowa county, and tried on change of v.enue, in the district court of Dane county.

The plaintiff in error, McQoon, assigns the following errors to the decisions and rulings of the district court of Dane county, on the trial of the cause, viz.:

1. In allowing the witness of plaintiff Irvin to answer the following question: £ £ What reply was made by said plaintiff to said witness in answer to such message?”

2. In allowing said witness to answer the following question: ££ What were the circumstances and ability of defendant to pay for supporting and educating his children ?”

3. In refusing to permit a witness on the part of defendant McQoon to answer the following question : ££ Was it or was it not a matter of notoriety in the neighborhood where the plaintiff lived, before the time of Ms marriage with Mrs. McG-oon, that defendant had made and was making efforts to recover possession of his children, in the custody of Mrs. McGfoon, the now wife of plaintiff, and that the children were kept by her from Mm ?”

4. In instructing the jury : “That the detention of the children by the wife of the defendant previous to her marriage with the plaintiff, whether such detention was tortious or not, can in no way affect the plaintiff in this form of action.”

5. In instructing the jury: “ That if they believe from the testimony that neither the defendant, nor any other person for him, ever made a demand of the children from the plaintiff, or warned the plaintiff against their maintenance, and that the defendant knew that Ms children were being maintained by the plaintiff, the defendant is liable for such maintenance.”

6. In refusing to instruct the jury: “That if the testimony proves that the wife of the plaintiff had the children of the defendant at the time of her marriage with the plaintiff, and that her custody of the children was without the consent of the defendant, and against his will, and that the plaintiff then took the children with the mother into his family, without the consent or request of the defendant, and never since that time has notified the defendant to take them away or become responsible for their maintenance, that the defendant is not liable.”

On the first error assigned, it appears from the testimony returned, that the defendant sent a message' to the plaintiff, informing him “where and upon what terms the children might be educated at the defendant’s expense.” The reply to the message was an inseparable part of the res gesta, and was properly admitted. It does not infringe the rule, “that the declarations of a party shall not be used by him to support his action or defense.”. The defendant caused the message and must abide its inseparable and necessary incidents.

The circumstances and ability of the defendant were a proper inquiry. The law will presume that a man of great means will have his children more tenderly nurtured and carefully educated than one of limited means, and raises a corresponding liability. Van Valkeriburgh v. Watson, 13 Johns. 480.

The court properly refused the defendant’s question about the neighborhood notoriety of his efforts to regain possession of his children from their mother, before her intermarriage with the plaintiff. This is a fact very susceptible of direct proof, if it existed, and neighborhood rumor or notoriety, the most vague and uncertain of all the tests of truth, should not be received. In a few excepted instances, from necessity, such evidence is received. The relation of husband and wife may, in some cases, be established by proof that they were accepted and received and lived together as husband and wife in the community where they had resided for a length of time. And again, in any view of the case this notoriety should be brought home to the knowledge of the plaintiff,.by the fact that he lived in the neighborhood, or frequently visited it, or some other fact. Nothing of the kind appears in the evidence returned.

That the tortious acts of the plaintiff’s wife before marriage with him do not prejudice his right of recovery in this form of action, Is too plain a legal proposition to require elucidation.

The instruction objected to in the fifth assignment of error was in our opinion properly given. By every principle of law upon the subject, recognized and strengthened by our statute, parents are under legal obligation to maintain and support their children, who are of tender years and helpless.

And when a parent permits a stranger to maintain, support and instruct such children, inno way objecting to the act, but rather assenting and advising therein, the law will presume that he knows his obligations, accepts the services and assumes to pay. 16 Johns. 285; 13 id. 480; 1 Esp. 17; 1 Black. Com. 360; 2 Kent’s Com. 190; 4 East, 82; 4 Wend. 403; Rev. St. 132.

The instruction refused, as assigned in the sixth error, was properly refused, for the reasons already adverted to, and for the further reason that the testimony returned in the case, with the bill of exceptions, does not raise the point on which the instruction is asked, so far as the real plaintiff in the action is concerned.

The plaintiff, upon his marriage, found the children with the mother, who by nature, in view of their tender years and helplessness, was a proper person to have charge of them. There was nothing in this to induce the plaintiff to suspect that the children were with the mother against the consent of the father, but much to satisfy him of the contrary; that they were with the mother by the consent of the father, if he were possessed of proper natural feelings. And there was no duty or obligation on the plaintiff to notify the defendant to take the children away, or leave them to suffer until he could see the defendant and make an express contract about their support and maintenance. Such a course would have merited the reprobation of every humane and upright man. The defendant had the legal right to the possession, and could have enforced it 'at any time. He should have first moved in the matter, and on failure to do so, the law would presume that possession elsewhere was with his approbation and consent. Rawlins v. Van Dyke, 3 Esp. Cases, 212; Staunton v. Wilson, 3 Day, 37; 1 Black Com. (top page) 370, note 3.

We are of opinion that the judgment -of the district court be affirmed, with costs, and seven per cent damages on the amount recovered by the plaintiff below. Ordered accordingly.