DISSENTING OPINION. I cannot concur in the majority opinion and dissent for the following reasons:
It is admitted that Amos Freestone was committed to White's Manual Training Institute on June 23, 1927, and remained there until the death of his father and that *Page 666 White's Manual Training Institute is not a state institution.
Section 1705 Burns 1926 (Acts 1913 p. 854) provides that: "The court may make and enter an order requiring such parent or guardian to appear before said court upon a day and hour to be named therein and show cause, if any he or she have, why he orshe should not pay for the support of such child, in whole or in part, while it is an inmate of such institution." (Our italics.)
There is no showing that this was ever done. No order of any court relieving the father of Amos Freestone from his legal duty to support his children ever had been made, and if he was not relieved by law from his duty to support his child, he was still under a legal obligation to support his child at the time of his death. When a child is to be sent to an institution other than astate institution, unless the father is called before the court and excused from the obligation imposed upon the father by law, the obligation remains upon him to support his child while in the institution. In this case, the father was not relieved by law, but was compelled by the law to support his child.
Section 2867 Burns 1926 (Acts 1913 p. 956) provides: "The father, or, when charged by law with the maintenance thereof, the mother, of a child or children, under fourteen years of age, living in this state, who, being able, either by reason of having means or by personal services, labor or earnings, shall wilfully neglect or refuse to provide such child or children with necessary and proper home, care, food and clothing, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the state prison or reformatory for not more than seven years nor less than one year."
Legal obligation is imposed upon a father to support his child both by the statute and by the weight of authority. That obligation is imposed at the birth of the *Page 667 child and is not shifted until it is removed in some way by a legal proceeding. Vigo Am. Clay Co. v. Kelly, Gdn. (1925),82 Ind. App. 675, 147 N.E. 301; Spade v. State (1909),44 Ind. App. 529, 89 N.E. 604; Leibold v. Leibold (1902),158 Ind. 60, 62 N.E. 627; State v. Yocum (1914), 182 Ind. 478, 106 N.E. 705; Hummel v. State (1920), 73 Ind. App. 12, 126 N.E. 444.
The duty of parents to their children embraces their maintenance, protection and education. This is said to rest upon a principle of natural law; but perhaps it may be more reasonably referred to as the implied obligation which parents assume in entering into wedlock, and by bringing children into the world. By so doing, they have entered into a voluntary, though implied obligation, to maintain, protect and educate their children, especially during the tender age of infancy, according to the best of the parents' ability. Cromwell v. Benjamin (1863), 41 Barb. (N.Y.) 558; Litchfield v. Londonderry (1859), 39 N.H. 247; 1 Honnold, Workmen's Compensation § 76. "As a general rule it does not prevent members of a workman's family from being dependent on him for support that at the time of his death he was unable or refused to support them, or had deserted them, especially where there was a reasonable expectation that he would return."
1 Honnold, Workmen's Compensation §§ 82, 266, Parent and Child: "Where there is a direct legal obligation to support, as in the case of a father to his minor children, coupled with the reasonable probability of such obligation being fulfilled, dependency is established, even though no support was in fact being furnished at the time of the workman's death. The law does not limit dependency of minor children living apart from their parents to cases where actual support was being furnished or contributions made, as such a rule would in many instances exclude children from the benefits of a law that *Page 668 was clearly intended for their protection." See, in this connection, Malzac v. Brule Timber Co. (1916), Mich. Wk. Comp. Cases p. 330.
By the statute, the state has created a sharper and more effective spear for a dull or dormant sense of parental duty than that which was, before the statute was enacted, the instrument of a court of equity in a divorce proceeding. It was the duty of the decedent to support his infant children and the fact that he had been deprived of their custody cannot serve to relieve him of that duty. Spade v. State, supra, and authorities there cited; State v. Yocum, supra.
While the parent's duty to support his child and his right to custody and services of the child are usually reciprocal, the parent remains liable for the support of the child where he is deprived of its custody on account of his own misconduct or wrong doing, and the fact that, as between the parents, the custody of the children has been awarded to the mother does not relieve the father of the duty to support. Shields v. O'Reilly (1896),68 Conn. 256, 36 A. 49; Cowls v. Cowls (1846), 8 Ill. 435, 44 Am. Dec. 708; Spade v. State, supra; Leibold v. Leibold,supra.
It must be kept in mind that the welfare of the child is the paramount consideration, and that, awarding its custody to either parent cannot be taken as a reward to the one or a punishment to the other. It must be presumed that the court in awarding the custody does so for the welfare of the child.
Not only a legal but a moral obligation rests upon the father to support his minor child, and while, as between himself and third parties, that obligation may be shifted in proceedings of guardianship or divorce, he may, by misconduct, forfeit his right to the custody thereof. But the child, who is not a party, cannot be deprived of his natural rights to turn to his father for maintenance, *Page 669 if the substitute source of supply fails. See Svoboda v.Superior Court (1923), 190 Cal. 727, 214 P. 440.
In the case of the Vigo Am. Clay Co. v. Kelly, Gdn., supra, this court, by Enloe, J., says: "By express provision of our statute (§ 2636 Burns 1914, Acts 1907 p. 160) a legal obligation was imposed upon the father, Otis Johnson, to support this child. That obligation was imposed upon him at the birth of said child, and thereafter, during his life, it continues, unless removed or shifted in some way recognized by law. True, we may say, that Hunter and his wife, under the circumstances of this case, while they retained the custody of said child, weremorally bound to supply her reasonable wants, as to her support, but this burden was not one imposed upon them by thelaw, and it was a burden they could put aside at any time by returning the custody of said child to its father. The legal duty to support this child, upon this record, at all times rested upon the father, but this legal duty was, for the time being, as between said father and Hunter, being performed by Hunter, for the father, not because of any legal duty resting upon Hunter, but because he recognized his moral obligation in that behalf. The record discloses no fact or facts which would have the effect of relieving Johnson of his legal duty to support said child; this duty remained upon him."
So, in the present case, the fact that the support was being furnished by another than the father did not relieve him of that legal duty.
A parent of sufficient ability is legally bound to support his child and has no right to cast any part of the burden of support upon the public. Rowell v. Town of Vershire (1890), 62 Vt. 405, 19 A. 990, 8 L.R.A. 708. It is the father's duty to the child and to the public. Porter v. Powell (1890), 79 Iowa 151, 44 N.W. 295, 7 L.R.A. 176, 18 Am. St. 353. *Page 670
The incarceration of a minor child in a state hospital for the insane without his father's consent is not an emancipation of the child, and does not relieve that father from liability for its care, he being otherwise liable. Guthrie County v. Conrad (1907), 133 Iowa 171, 110 N.W. 454. It has been held that the funeral expenses of a child is a father's debt. Rowe v. Raper (1899), 23 Ind. App. 27, 54 N.E. 770, 77 Am. St. 411. Duty to support. Leibold v. Leibold, supra; Haase v. Roehrscheid (1854), 6 Ind. 66; Ramsey v. Ramsey (1889), 121 Ind. 215, 23 N.E. 69, 6 L.R.A. 682; Husband v. Husband (1879),67 Ind. 583, 33 Am. Rep. 107; Wright v. Leupp (1905), 70 N.J. Eq. 130, 62 A. 464.
The growth of the law in reference to parent and child, has been most remarkable. It has been an evolution, a change that has kept pace with our civilization which has a far different conception of parenthood than did our ancestors.
Duty to support does not rest wholly on right of custody. Both by judicial decision and statute, it is made the father's duty to support.
Suppose the child is a cripple, feeble-minded or incapable from any cause to support itself. Would we say that because the father received no income he is relieved of a duty to support? The law is not that harsh. It shocks our sense of justice to think that such is the law. The father had recognized his duty. He had sent a small amount of money, some clothing, no doubt what he was able to send, to the White's Manual Training Institute for the boy. The court recognizes the parental tie, for, as soon as the father died, the child was released to attend the funeral and has never been returned. It was simply sending a child away to a training school for the good of the child and of society, but in no sense to relieve the father from any legal duty owing by the father to his son.
As stated above, it is expressly provided by § 1705 *Page 671 Burns 1926: "In every case in which the court shall commit any child to the care and custody of any institution, as above provided, other than a state institution, and such child shall have a parent or guardian within the county, the court may make and enter an order requiring such parent or guardian to appear before said court upon a day and hour to be named therein and show cause, if any he or she have, why he or she should not pay for the support of such child, in whole or in part, while it is an inmate of such institution." The court shall then "hear evidence as to the financial ability of such parent or guardian, and in case the court shall find that such parent or guardian shall pay for or contribute to the maintenance of such child, the court shall render judgment against such parent or guardian that such parent or guardian shall pay to the clerk of the juvenile court such sum as the court shall adjudge and at such times and in such amounts as shall be by the court found just."
It is to be observed that this statute requires the parent to show cause why he should not support his child, thus clearly implying, in the absence of such showing, a duty to support, and, under this statute, nothing relieves the parent from paying for or contributing to the maintenance of the child except his financial inability to do so. The statute only authorizes the court to hear evidence on this point, and the fact that the parent under this statute is deprived of the custody of the child has nothing whatsoever to do with his duty to support, the only question being his ability to do so. So far as the record shows in this case, it was not determined that the father had no duty to perform, and, in the absence of such showing, the presumption is that he did have such a duty.
The compensation law does not say that compensation depends upon the custody of the child; but the question is: Do the laws of the state impose upon the father the obligation to support such child at the time of his death? *Page 672 The question is not: Was the father supporting the child? The question is not: Was the child in his custody, but it was whether the father was under a legal obligation at the time to support the child.
In Guthrie County v. Conrad, supra, the father of a child who was taken and placed in a hospital for the insane, claimed he was not responsible for the support of his child, because the child was forcibly taken from his care and custody and was therefore emancipated. The court says: "When liability already exists, it is unnecessary to legislate on the subject, and to do so would be an idle act. . . . It is the settled rule in this state that a parent is bound for the care and maintenance of his minor child. . . .
"Admitting that the son was placed in the asylum without the consent of the appellant (father), it must still be presumed that the act was for the best interest of the public and of the son, and such interests furnish full justification for the act. . . . A parent may lawfully be deprived of the custody of his minor child, and still be liable for its support."
The cases mainly relied upon in the majority opinion of this court are divorce and separation cases, and, in such cases, the rights involved are generally between husband and wife, and are not controlling under the circumstances of this case.
This is a case in which only the rights of a child and the duty of the parent to support him are involved. My strongest convictions are in favor of the award from every legal standpoint, for it is the intention of the law to so award compensation in cases of this kind.
Nichols, J., dissents, and concurs in the conclusions of the dissenting opinion. *Page 673