Taubert v. Taubert
| Decision Date | 31 January 1908 |
| Docket Number | 15,490 - (196) |
| Citation | 114 N.W. 763,103 Minn. 247 |
| Parties | WILLIAM TAUBERT v. MARGARETHA TAUBERT |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by a minor, by his guardian ad litem, against his mother to recover $25,000 damages for personal injuries. The case was tried before John Day Smith, J., and a jury which found for plaintiff in the sum of $5,000. From an order denying her motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed and new trial granted.
Action by Minor against Parent -- Emancipation.
In this a personal injury action by a minor against his mother and surviving parent it is held:
1. As a general rule a minor cannot sue his parent for a tort; but if he has been emancipated, he can. A mere waiver, however of the right to the earnings of a minor, does not alone constitute such emancipation; for there must be a surrender of the right to his services and to the control of his person.
2. The issues as to the plaintiff's emancipation and as to the defendant's alleged negligence were questions of fact under the evidence.
3. It is error for a trial court in its instructions to the jury to single out and isolate the testimony of a designated witness and lay particular stress upon it in cases where the evidence is contradictory. Each party to an action is entitled to have all the evidence relevant to the issues fairly considered by the jury.
4. An instruction in this case to the effect that if the jury believed the plaintiff's testimony he would be entitled to recover, although every other witness in the case had lied, was reversible error.
Cohen, Atwater & Shaw, for appellant.
Larrabee & Davies, for respondent.
This is an action brought by a young man seventeen years old, by his guardian, against his mother, to recover damages for personal injuries which he claims to have sustained while in her employ by reason of her negligence. Verdict for the plaintiff for $5,000. The defendant appeals from an order of the district court of the county of Hennepin denying her motion for judgment notwithstanding the verdict or for a new trial. The record discloses the fact that the action was defended by an indemnity company, which had issued its policy to the defendant.
The assignments of error raise two general questions: (a) Was the defendant entitled to a directed verdict in her favor? (b) If not, was she entitled to a new trial for errors in the instructions of the trial court to the jury?
1. It is claimed on behalf of the defendant that upon the undisputed evidence she was entitled to a verdict in her favor; hence it was error to refuse such an instruction, and that the motion for judgment notwithstanding the verdict should have been granted.
The undisputed evidence shows that the defendant is a widow and the mother of the plaintiff, a minor, whose father is dead; that at the time of the plaintiff's injury, and for some time prior thereto, she was and had been carrying on a tanning and fur-dyeing business, as the administratrix of the estate of her deceased husband, in the city of Minneapolis; that another son, Paul Taubert, twenty eight years old, was at all times herein stated the superintendent and manager of such business, and of the factory wherein it was carried on, for his mother; that the plaintiff was an employee of the defendant and worked in such factory; and, further, that on February 2, 1907, while he was attempting, pursuant to the direction of his brother, the superintendent, to tighten a screw which sustained a shaft in the factory, the engine which propelled the shaft was started, and he was caught in the revolving shaft and thrown against the ceiling, whereby he lost his left arm and both of his legs were broken. This action was brought to recover damages sustained by the plaintiff on account of his injuries, on the ground that they were caused by the negligence of the defendant's superintendent. The jury by their verdict expressly found that Paul Taubert, the superintendent, was guilty of negligence which caused the plaintiff's injury. The complaint alleged that the plaintiff had been emancipated by his mother, and that the defendant negligently started the machinery, without notice to the plaintiff, while he was in the act of adjusting the screw connected with the shaft. The answer put in issue the alleged emancipation of the plaintiff and the alleged negligence of the defendant, and alleged contributory negligence on the part of the plaintiff.
It is urged on behalf of defendant that the evidence fails to show that the plaintiff had been emancipated by his mother, and therefore a verdict should have been directed for her. The general rule is that a minor cannot sue his parent for a tort; but, if he has been emancipated, he can. A mere waiver, however, by the parent of the right to the earnings of his minor child, does not alone constitute such emancipation. There must be a surrender by the parent of the right to the services of his minor child, and also the right to the custody and control of his person. 1 Jaggard, Torts, 462; 1 Cooley, Torts (3d Ed.) 493.
The disability of a minor to maintain an action for tort against his parent arises from the family relation, which may exist intact, although a minor may have been given the right to receive as his own his wages; hence, to take a case out of the general rule, there must be not only a waiver of the minor's services, but a surrender of parental control over him. The trial court correctly charged the jury as to this question of the plaintiff's emancipation. It is however, earnestly contended on behalf of the defendant that the evidence shows that the emancipation of the plaintiff was limited to plaintiff's wages, and that other than this there was no change...
To continue reading
Request your trial