Parker v. Tillinghast — 9 N.Y. St. Rep. 510

Majority

p. 510

Charles Parker, App’lt. v. Philip Tillinghast, Resp’t.

(City Court of New York, General Term,

Filed April, 1887.)

Headnote

Parent and child—Liability of parent for clothing furnished minor, SON WHILE ATTENDING SCHOOL IN A FOREIGN STATE.

If the parent sends his son to attend school in a foreign state, and neglects to furnish him with clothing suited to the climate, the growth of the son, and according to the parent’s means, the son may obtain the clothing-on the parent’s credit. Whether the son was justified in obtaining credit on the parent’s account is generally a question of fact for the jury.

The defendant, a resident of this city, sent his son, then, sixteen years of age, to attend school at Exeter, New Plampshire. While there, the son, in November, 1885, obtained from the plaintiff winter clothing, including an overcoat.

The clothing was reasonably worth eighty dollars. The-plaintiff testified, without objection, that at the time of ordering' the clothing it was cold weather, and the defendant’s son said “he had nothing but a very thin overcoat, and that he had outgrown his other clothes.” The defendant testified that he could not state what clothes his son-had when he left home that fall, but in general terms said that he had furnished the son what clothing he thought-was proper and necessary for him. The trial judge directed a verdict in favor of the defendant, and from the judgment-entered thereon the plaintiff appeals.

Robert L. Stanton, for app’lt; Logan & Mellis, for resp’t.

We must assume that the clothing-furnished by the plaintiff was reasonable and proper, according to the defendant’s condition m life, or otherwise-the judgment must be reversed for error of the trial judge in refusing to permit the plaintiff to prove the defendant’s financial condition, a fact the plaintiff proposed to establish while the defendant was on the witness stand The only question to be considered, therefore, is the defendant’s-liability, which springs from the relation of the parent to-his offspring, and is founded on a natural duty to furnish necessaries for his infant children according to his means. If the child be living with the parent, neglect will not be presumed, and “no man shall take upon him to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, or of whom; all that-must be left-to the discretion of the father or mother.” Bainbridge v. Pickering, 2 W. Bl., 1325; Van Valkinburgh v. Watson, 13 Johns., 480 . The defendant’s son was living apart from the. defendant by the latter’s act, and we are to consider how far this affects the defendant, for what is actually necessary for an infant will depend upon his situation at-

p. 511

the time. In Baker v. Keen (2 Stark., 440) the father had placed a son at a military college, and paid his expenses there, and this was considered sufficient to warrant the presumption of authority from the father to order regimentals and other articles for his equipment. The son in the present case was placed in the school at Exeter.

He was expected to pursue a course of studies there, and if, as the son said, he had nothing but a thin overcoat, and had outgrown his other clothing, the father ought to have supplied what the son needed, as the son could not be expected, under the circumstances, to supply them at his own expense. The cold climate of New Hampshire, where the father located his son, entitled him to clothing-suitable to the climate, and his gradual growth called for clothing suitable to his increased size, so as to permit him to make a presentable appearance at his school, and if the father failed to supply these necessaries, the son had the right to procure them on the father’s credit. This is founded on the rule, that if the parent neglects his duty, any other person who supplies the necessaries, is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent. The evidence was sufficient to entitle the plaintiff to go to the jury on the question involved. 2 Kent’s Com. (13th ed.), 193; Baker v. Keen, supra; Mahoney v. Evans, 51 Stat., 83; Davis v. Caldwell, 12 Cush., 513 . When the standard of paternal duty is a shifting one, depending upon circumstances, and on inferences about which intelligent persons may honestly differ, it is a question which should be determined by the jury.

We think the trial judge erred in assuming, as matter of law, that on the facts stated and the inferences to be drawn from them, that no liability could possibly attach.

The defendant’s testimony was unsatisfactory as to what clothing he had furnished his son, and was silent as to whether or not he furnished a winter overcoat, which the nature of the climate and time of the year would indicate the son needed. He was, also, silent as to what pecuniary provision (if any), he made for his son while at Exeter. These things may be more satisfactorily explained on the new trial.

Upon the record as it stands, we think the judgment ought to be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hyatt and Ehrlich, JJ., concur.