Edy v. McCoy

20 Ala. 403

• Court: Supreme Court of Alabama
• Decided: January 15, 1852
• Status: Published

Opinion

CHILTON, J.

The question involved in the issue to be tried by the jury in the court below was, wbether the facts of the case showed that McCoy was liable to Edy for the board of the child Amanda. How was this to be shown? Edy attempted to establish bis liability, by showing that be bad brought the child to bis bouse, and thus laid the predicate for a presumption that McCoy bad assumed a quasi guardianship for the child, and bad by bis acts with reference to her, placed himself in loco parentis. It was certainly competent for McCoy to rebut this proof. Suppose be bad, on bis way to Tuskegee, found the child walking in the road, and she bad requested a seat in his carriage to ride as far as Edy’s, and from motives of kindness be bad granted her request, it is too plain for argument that her declarations which prompted him to receive her into his carriage, and which consequently explain the act, would have been good evidence as constituting part of the res gestae. We entertain no doubt, and all the authorities are agreed, that even the declarations of McCoy himself, accompanying the act of receiving her, and explanatory of that act, would have been legitimate proof. This is a plain elementary principle of the law. Now bow is the principle altered, when instead of meeting the child by the way-side, she comes to bis house, and prays admittance until be could send her to Edy’s where her brothers and sisters resided, urging as a reason why he should do this, her ill-treatment at Dozier’s. The question immediately springs up, when Edy proved the child was in the care of McCoy, what relation did be sustain to her ? Did be receive her under bis roof to support her, or did be, as an act of benevolence merely, receive her temporarily to send her elsewhere ? The manner in which be took charge of her, is the main fact to be proved, as upon that depended bis liability for her board, and all the circumstances connected with her being received under the protection of McCoy, explanatory of such reception, are clearly legitimate proof. The proof clearly tended to show, that McCoy received the child for the purpose of taking her to her relation’s bouse, and was influenced by motives of benevolence, and not for the purpose of keeping her as a permanent member of bis family; and thus tended to explain the act, not only as to bow be received her, but the reasons for taking ber to tbe bouse of Edy, namely, that be merely received ber for that purpose, being induced to do so from feelings of benevolence, excited by tbe declarations of tbe child of mistreatment at Mr. Dozier’s.

¥e tbink it quite clear, that tbe court committed no error in admitting tbe proof.

Judgment of affirmance.