The plaintiff and defendant's son, in September, 1904, when both were only eighteen years of age, became married. The marriage was a clandestine and childish one, *Page 88 which disclosed no reasonable probability of happily and successfully surviving the strain of actual experience, and was one which any sensible parent solicitous for the welfare of his child would have been justified in preventing by any available means within his lawful reach. The parties did not live together, the boy contributed nothing towards the support of the girl, and in a short time and before cohabitation had increased the undesirable possibilities of their foolish misadventure the husband left the plaintiff, and this action was brought to recover from the defendants, as the alleged promoters of his abandonment, the damages supposed to have been caused thereby.
While there is nothing but imagination or conjecture to connect the defendant Augusta Cochran with the not unnatural sequel, there probably was sufficient evidence to authorize the jury to find that the other defendant, the father, did without what could be regarded as legal justification induce and procure the son permanently to leave his wife, and that such conduct was unlawful and entitled the plaintiff to recover damages. These were assessed by the jury at very substantial figures.
Before proceeding to point out errors in one branch of the case which require a new trial, it seems desirable to refer very briefly to certain rights and duties of infant husband and wife which affect the measure of damages in such an action as this and concerning which some confusion seemed to prevail on the trial.
The trial court charged that the plaintiff was entitled to the society of her husband, and also to be supported by him. But it likewise charged that the father was entitled to his custody, services and obedience until he became of age, thus apparently recognizing the co-existence of conflicting rights. The jury also were instructed "they (the plaintiff and her husband) had the right to live together, even though the father had the right to the young man's wages."
There is no doubt that on the marriage of minors certain marital rights and obligations accrue which are at variance with substantial pre-existing parental rights, and the only *Page 89 warrantable manner in which a conflict between them can be avoided is by the subordination of the latter to the former. So long as the law permits and recognizes marriage contracts between infants, it must confer and secure certain privileges and duties which are regarded as essential to the proper maintenance of that relationship.
The right of the wife to the society of her infant husband, even though in derogation of the original parental right of custody, has been so many times affirmed that it need not be dwelt on, although in this particular case the wife agreed to a very material abridgment of this right for a considerable period. So, too, the general rule is familiar that the wife is entitled to be supported by her husband, although an infant. But the subordinate proposition that the infant husband is entitled to his earnings as against his father, so far at least as is necessary for the support of his family, is less familiar, has been a subject of debate, and so far as we are aware has never been specifically adjudicated in this state. This right, however, obviously and necessarily results from the husband's duty of support. It would be quite illogical and unreasonable to say that the infant must provide for his wife and children and at the same time deny to him his wages wherewith to furnish such support, and in other jurisdictions where the question has been decided this view prevailed, although not universally. Thus the infant's right to his wages has been upheld in Town of Sherburne v. Town ofHartland (37 Vt. 528); Holland v. Beard (59 Miss. 161);Chapman v. Hughes (61 Miss. 339); State ex rel. Scott v.Lowell (78 Minn. 166); Commonwealth v. Graham (157 Mass. 73).
On the other hand it has been held in Maine that the above result did not follow at least in the absence of parental consent to the marriage from which an emancipation of the child might be implied. It is to be observed, however, that in that state the consent of a parent to the marriage of his minor son is required by statute. (White v. Henry, 24 Me. 531; Inhabitants ofBucksport v. Inhabitants of Rockland, 56 Me. 22.) *Page 90
The plaintiff was well confined within the foregoing principles in the presentation of her case, and so far as they are concerned is entitled to an affirmance of her judgment. But, as we have intimated, rules of evidence were elsewhere so transgressed as to require a reversal.
While she was on the stand, and speaking of a time a year prior to her marriage, she was allowed to testify as follows:
"Q. Did you do that (stop going to church) after any conversation with your husband? A. Yes.
"Q. What did he say?
"[Objected to as incompetent, irrelevant and immaterial, and not binding on the defendant. Objection overruled and defendant excepts.]
"A. He said that he could not sit with me in church any more, that his mother wouldn't allow him," etc.
The court refused to grant a motion to strike out this evidence, saying that it would allow it to stand, not as "Proof against the defendant at this time," but "merely as bearing upon their relations to each other."
In another place the following occurred:
"Q. What did he (the husband) say about keeping it (the marriage) secret? A. That if his father knew it he would separate us, because he had had a cousin that had a picture in his pocket that he didn't like, and that they had sent him away for it, and he knew his father would send him away much quicker for that."
Defendant's motion to strike out this evidence as immaterial and irrelevant was denied, it being allowed to stand as "merely explanatory of the reason why the marriage was kept secret."
Again, subject to proper objection and exception, plaintiff was allowed to state that on another occasion after the marriage her husband said "that his father told him that he didn't want him to go out of the house, and Ernest (the husband) said, why not? He said, you are going to obey me, and Ernest said to him, you should have told me that a long time ago," etc. *Page 91
On the strength of these rulings, and without unnecessary repetition of similar objections which defendants' counsel had the right to assume would be overruled, the plaintiff was allowed to give other testimony of statements made by her husband with reference to the hostile attitude and disposition of his parents.
We think it is unnecessary to take time for the purpose of arguing that this evidence was very prejudicial to the defendants, and we know of no authority which justified its introduction. While of course plaintiff was required to prove the unlawful conduct of defendants, and while such unlawful conduct might be evidenced by such acts as were outlined in the evidence referred to, it was incumbent upon her to prove the same by competent testimony, and it was not proper to give evidence of her husband's declarations on the subject. Such evidence offended against the general rules of evidence and has been specifically condemned in actions similar to this one, (Huling v. Huling,32 Ill. App. 519; White v. Ross, 47 Mich. 172; Preston v.Bowers, 13 Ohio St. 1; Manwarren v. Mason, 79 Hun, 592.)
For these reasons the judgment should be reversed and a new trial granted, with costs to abide event.