McCarthy v. Boston & Lowell Railroad

2 L.R.A. 608, 20 N.E. 182, 148 Mass. 550, 1889 Mass. LEXIS 321

Opinion

C. Allen, J.

The facts disclosed in the present case were sufficient, if taken by themselves alone, to warrant the jury in finding an implied emancipation by the plaintiff of his son, which would cut off the father’s right to collect and have the son’s earnings, or to maintain an action of tort founded on the loss of the son’s services. Nightingale v. Withington, 15 Mass. 272. Wodell v. Coggeshall, 2 Met. 89. Abbott v. Converse, 4 Allen, 530, 533. Dumain v. Gwynne, 10 Allen, 270, 272. The Etna, Ware, 462. Stansbury v. Bertron, 7 W. & S. 362.

But the plaintiff contends that he did not in his own mind intend to emancipate his son, and the only question presented by the bill of exceptions is whether the plaintiff’s undisclosed intent was a material element to be considered. If it was material, no doubt the plaintiff might testify to it directly. But we think it was not material. If, for example, a father drives his minor son out of doors, and turns him upon the world to shift for himself, and then sues for his wages, he cannot be heard in court to say that in his own mind he nevertheless retained the intention of claiming them. Emancipation is a practical thing, and may be proved by conduct and acts; and the father’s secret intent, contrary to the effect of his acts, could not affect the son’s rights. By way of illustration, see West v. Platt, 127 Mass. 367, 372, and cases there cited; Ford v. Ford, 143 Mass. 577, 578; O’Donnell v. Clinton, 145 Mass. 461, 463.

The father’s claim to recover damages for a personal injury to the son rests on the same ground as a claim to recover for his wages. He had forfeited his rights by his acts.

Exceptions overruled.