Opinion
No. 29304.
March 23, 1931.
1. BASTARDS. In bastardy proceeding against alleged father of child, evidence showing debts owing by father is inadmissible.
In a bastardy proceeding, it is error to admit evidence of debts owing by the defendant, the purpose of the proceeding being to secure for the bastard a reasonable amount for support and education.
2. BASTARDS. In bastardy proceeding, instruction in substance authorizing jury to consider alleged father's ability to pay when assessing damages for support held error.
It is error for the court to instruct the jury that, although the jury should believe by a clear preponderance of the evidence that the defendant "is the father of the child in question, still the court further instructs you that when you come to assess the damages in this case, if any, it is your sworn duty to take into consideration his ability to pay such damages so assessed, and that in no event should the jury award more damages than is reasonably necessary for the support and education of the child, taking into consideration the defendant's ability to pay such judgment."
3. BASTARDS. Forty dollars per year awarded to mother for support of bastard child held inadequate and insufficient, warranting reversal, where paternity was clearly established.
In a suit by the mother of a bastard against the father thereof for the support of the child, a judgment for forty dollars per year is so wholly inadequate and insufficient as to shock the judgment and conscience of reasonable men, and, where the evidence shows the defendant to be the father of the child, such inadequate verdict will be set aside and the judgment reversed and the case remanded for assessing the support alone.
APPEAL from circuit court of Lawrence county; HON. J.Q. LANGSTON, Judge.
O.L. Berry, of Newhebron, and G. Wood Magee, of Monticello, for appellant.
It is not the law that a jury in a bastardy case may be instructed by the trial court to consider the ability of the defendant to support his bastard child when they are passing upon the reasonableness of the amount to be awarded by their verdict.
By section 188, Code 1930, if the jury find for complainant they may assess such damages as they may think proper. Proper, of course, as used means for the support and maintenance of the bastard child.
In no event does the law allow the trial court to instruct the jury to consider the defendant's poverty, nor may the trial court instruct that the jury may consider defendant's wealth, if he is wealthy. The jury should be left free to say what in their judgment is reasonably required to feed, clothe, educate and maintain the child.
E.B. Patterson and C.E. Gibson, both of Monticello, for appellee.
If the jury shall find for the complainant, it may assess such damages as it may think proper in her favor.
Section 188, of the Code of 1930.
While the maximum amount which defendant may be adjudged to pay for the maintainance of the child is often fixed by the statute the amount of the award, if below such sum, or if no provisions is made, is within the sound discretion of the court. In determining this amount the court may consider the wealth and condition in life of the parties.
Belford v. State, 96 Ark. 274, 131 S.W. 953; Dehler v. State, 22 Ind. A. 385, 53 N.E. 850; Jean v. State, 22 Ind. A. 339, 58 N.E. 209; Sutorious v. Stalder, 88 Nebr. 843, 130 N.W. 750; Clark v. Carey, 41 Nebr. 780, 60 N.W. 78; State v. Brunette, 28 N.D. 539, 150 N.W. 271.
The amount fixed should be in accordance with the circumstances of each case, taking into consideration the means of the accused, his ability to earn money, the lack of means of the mother, and the health and condition of both. The purpose of the law is to provide means for the support and education of the innocent child. In fixing the amount, the court should not place it beyond the ability of the putative father to respond, and thus defeat the very purpose of the law.
State v. Hammond, 148 P. 420; State v. Reese, 43 Utah 447, 466, 135 P. 270; 7 C.J., page 1001.
This is an appeal from a judgment for four hundred dollars in a bastardy proceeding against Hugh Hathorn in favor of Orelia Daughdrill for the support of a bastard child born January 14, 1930. The judgment was to be paid in sums of forty dollars per annum over a period of ten years. From this judgment the appellant appeals.
It appears that some time in 1927 Hugh Hathorn for a short period of time was a boarder in the home of the father of Orelia Daughdrill, who at that time was fifteen or sixteen years old, Hathorn being about thirty-five and a widower with two children. For about a year thereafter Hathorn maintained a camp near the home of Daughdrill and at frequent intervals visited the appellant and took her riding in an automobile. It appears from the testimony of the appellant that some time during the year 1928, the exact time she does not remember, she began to have sexual intercourse with Hathorn; this continued at infrequent intervals and she became pregnant during April, 1929. She testified that, after she became so, the appellee, Hathorn, asked her mother for her in marriage and stated that he was going to marry her. She also testified that they were engaged to be married when the acts of sexual intercourse began. Hathorn continued to visit the appellant at her home until just before Christmas preceding the birth of the child in January. The father and mother testified that they did not know of the pregnancy of their daughter until October during the fair at Jackson, Mississippi. After this was discovered Mr. Daughdrill, the father of the appellant, had her write Hathorn to come over, and he came over in November, 1929, and, according to the testimony of the father and mother of the appellant, he admitted responsibility for their daughter's condition and stated that he was going to marry her.
Hathorn denied having sexual relation with the appellant at all, but admitted going with her and being with her on numerous occasions. He denied writing certain letters exhibited to him addressed to the appellant and contained in the record bearing a government postmark and date of mailing, but he was contradicted as to this by testimony of the appellant, and the contents of the letters are such as indicate a knowledge of the appellant's condition then and solicitude and responsibility therefor. The evidence was ample to sustain the finding of the jury that he was the father of the child and the writer of the letters. While the appellee, Hathorn, was on the stand he was permitted to testify as to certain debts he owed, including a judgment against him in favor of the father of the appellant for two thousand dollars. He was permitted to testify that he had disposed of his property prior to the bringing of the bastardy proceeding, and that he owed his employers some one thousand five hundred dollars, and that he was the father of two children, and that his earnings were about fifty dollars per month.
The court granted the appellee, Hathorn, the following instruction, among others: "The court instructs the jury for the defendant, Hugh Hathorn, that if your minds should be satisfied by a clear preponderance of the evidence in this case that the defendant, Hugh Hathorn, is the father of the child in question, still the court further instructs you that when you come to assess the damages in this case, if any, it is your sworn duty to take into consideration, his ability to pay such damages so assessed, and that in no event should the jury award her more damages than is reasonably necessary for the support and education of said child, taking into consideration the defendant's ability to pay such judgment." The giving of this instruction is assigned as error.
After the verdict was returned the appellant filed a motion for a new trial setting up the inadequacy of the verdict, and that it was so inadequate as to be evidence of malice, prejudice, or partiality, and in disregard of the sworn testimony, and also the giving of the said instruction above quoted.
The testimony of the mother and father of the appellant, which was the only testimony offered on the amount necessary to support and educate the bastard child, was that it would require from twenty dollars to twenty-five dollars per month. The mother of the appellant testified that twenty dollars per month would be small enough for an allowance for that purpose. The father testified that he had reared six children and it required on an average of about twenty-five dollars per month to support and educate a child.
We think it was error for the court to admit evidence of the debts of the appellee, Hathorn, in this proceeding, and that it was error to instruct the jury that they should take into consideration his ability to pay, etc., as stated in the said instruction. The primary object of the proceeding is to secure the support and education of the child for a period of not more than eighteen years. The ability of the father to pay his debts is not a criterion by which this amount shall be determined. The only pertinent fact is his ability to earn, coupled with his property. The child must be supported and educated according to the requirements and standards of ordinary living in the community in which it is to be supported and educated. A child handicapped socially and in business by the stigma of bastardy ought not to be unduly restricted in its standard of living and education. It is entitled to have the benefits of an ordinary support and education such as other children usually receive to meet the requirements of life. We also are of the opinion that the verdict is so grossly inadequate as to shock conscience and intelligence. There can be no doubt that forty dollars per year is wholly inadequate and insufficient to support and educate a child. No intelligent and honest person, it seems to us, could doubt that it would require more than this sum. The only evidence offered showed that it would require at least twenty dollars per month to support and educate the child in that community and under conditions prevailing there. Conceding that the jury can resort to their own knowledge and experience in such matters, and that they are not bound to accept amounts which their judgments show exaggerated, still the verdict cannot be reconciled upon any theory of fairness, impartiality, intelligence, and honesty. The jury may have been influenced by the evidence which showed that the father of the appellant had recovered a judgment against the appellee, Hathorn, which on objection the court refused to let the jury be informed of, for the injury done the father by the wrong to the appellant. This evidence had no place in the record. The father of the mother of the bastard child is not under primary duty to support such bastard child. That duty falls under the law upon the father of the bastard. He who has danced should pay the fiddler, and the law requires the father of the bastard child to support and educate it for such period of time until the child will become able to support and maintain itself.
A new trial should have been granted by the circuit judge as to damages alone. The judgment as to liability will be affirmed, and the judgment will be reversed and the cause remanded solely for the finding of the necessary amount to properly support such child.
Reversed for assessment of support alone.