
    P. J. HUNYCUTT & CO. v. WILLIAM THOMPSON.
    (Filed 17 April, 1912.)
    1. Infants — Necessaries — Father’s Wrongful Conduct — Emancipation of Son — Father’s Liability,.
    A father is responsible for necessaries furnished his son when he has wrongfully driven him from home and forced him to earn his own living; for though the father’s act may have emancipated his son to the extent of depriving him of his right to the, earnings of the son, it. does not extend to his responsibility for necessaries furnished the son arising from conditions brought about by his own wrong.
    
      2. Same — Funeral Expenses.
    The responsibility o£ a father for necessaries furnished his son, whom he has driven from home and forced to make his own living, extends to funeral expenses of the son, necessarily incurred, which the father had not authorized.
    Appeal from Daniels.J., at September Term, 1911, of StaNLY.
    This action is to recover $40’ alleged to be due plaintiff for tbe burial expenses of tbe son of tbe defendant.
    Tbe son was a minor, and was living apart from tbe defendant at tbe time of his death, and was in tbe enjoyment of bis own earnings, but tbe plaintiff offered evidence tending to prove that tbe defendant wrongfully drove him from borne.
    It was in tbe evidence that tbe son owned personal property of tbe value of $60 or $70, which was disposed of by bis relations, and there was no evidence that tbe defendant expressly authorized tbe expense incurred.
    At tbe conclusion of tbe evidence tbe defendant moved for judgment of nonsuit, which was denied, and tbe defendant excepted. Exceptions were also taken to tbe charge of bis Honor, but they are all involved in tbe motion for judgment of non-suit.
    Tbe following verdict was returned by tbe jury:
    1. Had tbe deceased, William Thompson, Jr., been emancipated by bis father, and was be still emancipated at tbe time of bis death? Answer: No.
    2. In what amount, if any, is tbe defendant indebted to tbe plaintiff? Answer: $35.
    Judgment was entered on tbe verdict in favor of tbe plaintiff, and tbe defendant appealed.
    
      A. C. Hunycutt for plaintiff.
    
    
      I. R. Bwrleyson and R. L. Smith for defendant.
    
   Allen, J.,

after stating tbe case: It is conceded, on tbe one hand, that tbe defendant would have been liable for tbe burial expenses of bis son, a minor, incurred without bis express authority, if tbe son bad been living with tbe defendant at tbe time of bis death, and, on tbe other, that there is no liability if tbe son left the home of the father voluntarily and without fault on the part of the father. The point in debate, therefore, is whether the defendant can avoid liability when he has wrongfully driven his child from home.

The position taken by the defendant’s counsel is sound, that “If a father neglects and refuses to support 'or maintain his son during his minority, and denies him a home, so that he is forced to labor abroad and procure a living for himself, he is not entitled to the earnings of such son, as, under such circumstances, the law will imply that the father has emancipated his son from his service and conceded to him the right to enjoy the fruits of his»own labor”; but it does not necessarily follow that the father is relieved from all responsibility because he has lost the right to control the earnings of his son.

The objection to such a conclusion is that it would permit the father to take advantage of his own wrongful act, and to relieve himself from responsibility by conduct which the law condemns, and in our opinion the charge of his Honor was a clear and accurate statement of the law. He said: “The mere fact that a child is living away from home, with the consent of the parent, does not relieve the parent from liability for necessaries furnished to the child, and the parent is liable where his misconduct or abuse has driven the child to leave him; but, ordinarily, where there is no fault upon the part of the parent, a child who voluntarily abandons the parent’s home for the purpose of seeking its fortune in the world or to avoid parental discipline and restraint, forfeits the claim to support, and the parent is under no obligation to pay therefor. A boy-may be emancipated for some purposes and may not be emancipated fbr others. There may be a total emancipation or a partial emancipation. If the plaintiff’s contention is true in this , case, the father ran the boy off and permitted him to- go to work, and to earn wages and to collect his money. That would be emancipation for certain purposes. That would authorize the boy to make contracts, collect the money, and spend the money. The father couldn’t then come and collect his money. That would be an emancipation for that purpose. But if the father was in fault, if he ran the boy off from home, then there could be no emancipation wbicb would relieve the father from the duty of providing necessities for the son in the event he was down sick and died. I charge you, that if the plaintiff has satisfied you by the greater weight of the evidence that the defendant drove his young son, William Thompson, away from his home, you will answer the first issue No.’ The first issue is, Nad the deceased, William Thompson, Jr., been emancipated by his father, and was he still emancipated at the time of his death?’ So, then, if you find from this evidence, and by the greater weight of it, that his father drove him away from home, and he remained away, according to the evidence, twelve months or sixteen months, or whatever you may' find to be the time, and was taken sick and died, your answer to the first issue will be No,’ because that didn’t emancipate, didn’t relieve the father from his duty to look after and protect and care for his son — because he was in fault, if you find that he ran him away from home. But if you find that the boy left of his own volition, because he wanted to go, because he was tired of home and wished to escape parental control and correction and seek his fortune in life for himself, and was earning money and had on hand at the time of his death this buggy, which sold for $37.50, according to the testimony, and the watch, which sold for $5, and this balance in the hands of Mr. Efird of $16.20, then you would find, gentlemen, the answer to this first issue to be ‘Yes.’ ”

The authorities are not uniform on this question, but they fully sustain the charge. 2 Kent Com., 193; Tyler on Infancy, 114; 29 Cyc., 1609; Owen v. White, 30 Am. Dec., 573; Weeks v. Merrow, 40 Me., 151; Bennette v. Gillette, 74 Am. Dec., note on page 782.

In 2 Kent, supra, the author says: “If a father suffers the children to remain abroad with their mother, or if he forces them from home by severe usage, he is liable for their necessaries.”

In Tyler on Infancy, supra: “If the parent turn away his child from home, or so cruelly treat him that he cannot remain under the parental roof, or abandon him without adequate pro-visión, the rule is well settled that such parent may be made to pay for necessaries furnished such infant child.”

In Cyc., supra: “Tbe mere fact that a cbild is living away from borne witb tbe consent of tbe parent does not relieve tbe latter from liability for necessaries furnished tbe cbild, and, tbe parent is liable where bis misconduct or abuse has driven tbe cbild to leave him.”

In Owen v. White, supra, tbe Court says: “If a cbild leave bis father’s bouse to seek bis fortune in tbe world, or to avoid domestic discipline and restraint, or escape from justice, tbe authority of tbe father to purchase necessaries is not implied. But if a father abandon his duty to bis infant cbild, so that be is forced to leave home, be is liable for a suitable maintenance. And tbe principle of tbe distinction is that in one case tbe father is blameless and in tbe other blamable.” And in Weeks v. Merrow, supra: “If a minor is forced out into tbe world by tbe cruelty or improper conduct of tbe parent, and is in want of necessaries, such necessaries may be supplied and tbe value thereof collected of tbe parent, on an implied contract.”

It follows, therefore, as there was evidence that tbe defendant bad driven bis minor son from home, there was no error in denying- tbe motion for judgment of nonsuit, and tbe charge being in accordance witb law and justice, tbe judgment is affirmed.

No error.  