Opinion
No. 28446.
December 16, 1952.
APPEAL FROM THE CIRCUIT COURT, PERRY COUNTY, J. O. SWINK, J.
J. Grant Frye, Cape Girardeau, for appellant.
Limbaugh Limbaugh, Cape Girardeau, for respondent.
This is an action by plaintiff, as mother of a minor female child, against defendant, alleged to be the father of said child, praying judgment for $3,700, claimed to be the value of the support and maintenance of said child. The trial court sustained defendant's motion to dismiss for failure to state a cause of action. Plaintiff declined to plead further, and when judgment of dismissal was entered, she appealed therefrom to this court.
Since the only issue now is the sufficiency of the allegations of the petition to state grounds for recovery by plaintiff, we quote plaintiff's own summation thereof, as set forth in her brief herein (which defendant accepted as satisfactory), as follows:
"She alleged that the parties had never been married, that she was the mother of a child in her custody born June 22nd, 1947, and that defendant was its father. She further alleged that he had paid $300.00 towards the child's support since its birth, and that, except for such $300.00, she had furnished it all the necessaries of life at the value and cost of $4,000.00. She prayed judgment for the value of such necessaries she had furnished."
Plaintiff seems to concede that under common law principles she had no case. Indeed there can be no doubt of the common law rule. As stated in Ploscowe, Sex and the Law, pp. 118-119: "Common law conceptions still dominate our legal thinking, and the majority view in this country is that in the absence of statutes, a father is under no duty to support an illegitimate child. * * * Moreover, the mother of an illegitimate child or a third person cannot in most states sue the father for the value of the necessaries required for the child's care and maintenance." See also, 7 C.J. 955; 10 C.J.S., Bastards, § 18, p. 86; 7 Am. Jur. 673.
The common law rule was accepted in Missouri at an early date. In Easley v. Gordon, 1892, 51 Mo.App. 637, loc. cit. 641, this court said: "but the mother of an illegitimate child is, at common law, under the primary duty to support it. She and not the father is its natural guardian." Regarding a child born out of wedlock, according to the common law, it was said: "the duties and liabilities of the mother are made paramount to those of the father." The court refused then to enforce a contract to support a child made by the putative father with the mother on the ground that it was without consideration. A similar result was reached in Sponable v. Owens, 92 Mo.App. 174.
The cases are collated in an Annotation in 30 A.L.R. 1069, under the title, "Non-statutory duty of father to support illegitimate child"; and the general rule is that there is no such duty.
Plaintiff contends that her action is authorized by our statute, Section 559.350 RS Mo 1949, V.A.M.S. Said section is part of our criminal statutes, and makes it a misdemeanor for any man or woman to fail, neglect, or refuse, without good cause, to provide adequate food, clothing, lodging or medical attention for his or her child "born in or out of wedlock", or for "any other person having the legal care or custody of such minor child' to fail, refuse, or neglect to provide the same needs adequately.
It is to be noted that this statute does not purport to create civil causes of action, but only defines a criminal offense.
The argument made on behalf of plaintiff is something of a syllogism. Plaintiff's first premise is that under the allegations of her petition, defendant is guilty of a violation of the criminal law, as contained in Section 559.350 RSMo 1949, V.A.M.S. The second premise is that every violation of the criminal law gives rise to, and basis for, a civil action for damages. From these premises, plaintiff reasons that she is entitled to maintain her cause of action.
The syllogism fails because, in the first instance, its first premise is false. The allegations of the petition, if set forth in an indictment or criminal information, would not be sufficient to charge an offense under Section 559.350 RSMo 1949, V.A.M.S., because of the absence of any allegation that defendant at any time had the legal care and custody of the minor child, which is an indispensable and necessary allegation to charge a putative father with violation of said statute. State v. White, Mo.Sup., 248 S.W.2d 841; State v. White, Mo.App., 243 S.W.2d 818; State v. Barcikowsky, Mo. App., 143 S.W.2d 341.
The first case interpreting the statute in question was State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85, a proceeding in prohibition against the Judge of the Juvenile Court of Jackson County to prevent the enforcement of an order made by him requiring relator to contribute to the support of his child, born out of wedlock. The Kansas City Court of Appeals went fully into the history in Missouri of the law and statutes pertaining to those unfortunate children born out of wedlock (or, as some describe them, the children of illegitimate parents). After disposing of other issues, the court considered the statute now involved in this case, then Sec. 3274, R.S. 1919, as amended in Laws of 1921, p. 281. As a penal statute, it was subject to strict construction. Because of the phrase "any other person having the legal care or custody," (emphasis ours) it was held that no putative father who has not the legal care and custody of a child could be proceeded against under this statute: "the Legislature has not yet gone to the extent of requiring a father of an illegitimate child to support it, except where such a father * * * has the legal care and custody of the child." 292 S.W. loc. cit. 91.
Plaintiff here contends that the statute was enacted in 1947, but is in error, for the statute is now, in essence, the same as that enacted in 1921. As pointed out by Presiding Judge Bennick of this court in State v. White, Mo.App., 243 S.W.2d 818, loc. cit. 821, the 1947 enactment was only an amendment replacing the requirement to provide "necessary" food, clothing and lodging with a requirement to provide "adequate" food, clothing and lodging.
The proposition under consideration was disposed of beyond all question in the White case, supra. Incidentally, the opinion in that case, both in this Court and in the Supreme Court, were written after this case was filed and after the submission below, so plaintiff had not had the benefit of reading same when she instituted this action.
The White case was a criminal prosecution under Section 559.350 RSMo 1949, V.A.M.S. The conviction was reversed because there was no proof that the putative father (defendant) had the legal care and custody of the child.
This court then went fully into the history of legislation pertaining to children born out of wedlock and overruled one prior opinion which was deemed to be erroneous. Because of the general interest and importance of the question, this court ordered the cause transferred to the Supreme Court.
Under the same style, State v. White, Mo. Sup., 248 S.W.2d 841, the Supreme Court, through Judge Hyde, reached the same result and agreed fully with the opinion of this court. The defendant was discharged because he had not been proved to have had the care and custody of his alleged illegitimate child, as required for conviction under Section 559.350 RSMo 1949, V.A. M.S. In concluding its opinion the court said that it was for the Legislature to change the established rule. 248 S.W.2d 844.
Thus it is clear that the facts alleged in the petition herein are not sufficient on which to predicate criminal liability under Section 559.350 RSMo 1949, V.A.M.S., for plaintiff made no allegation that defendant has, or ever had, the legal care and custody of the child. Hence the major premise on which plaintiff's theory was grounded is destroyed and she has not demonstrated that she has a valid cause of action against defendant.
Under this circumstance it is wholly unnecessary for us to rule on the validity of plaintiff's second contention, that the violation of any criminal statute is necessarily the basis of a civil action for damages. The cases cited on this issue are all from other jurisdictions. Whether the argument is sound, whether, even if sound in some situations, it can have application to the type of statutory offense here involved, and whether plaintiff is within the class of persons who can claim to have a right of action, by reason thereof, are all questions which should be reserved for ruling when properly and necessarily involved in a case.
In conclusion, we take note of the fact that the ruling of the trial court herein (with which we agree) that the motion to dismiss should be sustained, is in accord with rulings in other jurisdictions. Allen v. Hunnicutt, 230 N.C. 49, 52 S.E.2d 18; Fite v. Miller, 280 App.Div. 12, 111 N.Y.S.2d 231; Albanese v. Richter, D.C., 67 F.Supp. 771; Washington v. Martin, 75 Ga. App. 466, 43 S.E.2d 590. The last cited case makes an exception to the putative father's nonliability only in the instance of a voluntary contract; but that matter is not here involved, for the petition contains no allegation of a contract. (In any event, the early Missouri cases were adverse to such contracts.)
The petition and the cause were properly dismissed. The judgment of the Circuit Court is affirmed.
BENNICK, P. J., and ANDERSON, J., concur.