Bulloch v. Bulloch

Docket Number21414.
Decision Date20 February 1932
Citation163 S.E. 708,45 Ga.App. 1
PartiesBULLOCH v. BULLOCH.
CourtGeorgia Court of Appeals

Syllabus by the Court.

Unemancipated minor cannot sue father for damages for personal injuries resulting from father's negligence, in view of public policy expressed in statutes (Civ. Code 1910, §§ 3019-3021, 3023, 3024, 3031-3035).

Under the public policy of this state, as expressed in the public laws, an unemancipated minor child cannot maintain an action against his or her father to recover damages for pain and suffering resulting from a physical injury due to the father's negligence. The court properly sustained the general demurrer and dismissed the action.

Error from Superior Court, Webster County; Z. A. Littlejohn, Judge.

Suit by Ellise Bulloch, a minor, by another as next friend, against N.E. Bulloch. To review the judgment, plaintiff brings error.

Affirmed.

STEPHENS J., dissenting.

J. R Lunsford, of Reynolds, and Hooper & Hooper, of Atlanta, for plaintiff in error.

W. W Dykes, of Americus, for defendant in error.

BELL J. (after stating the foregoing facts).

Assuming that the allegations were sufficient to show negligence on the part of the plaintiff's father, we are of the opinion that the petition failed to set forth a cause of action and was rightly dismissed on general demurrer. In the absence of allegations to the contrary, it is necessarily to be inferred that the child was unemancipated and was living with her father under the common relation of parent and child, and was thus subject to the father's control as contemplated by law. In its last analysis, therefore, the case is one in which an unemancipated minor child seeks to recover damages for pain and suffering resulting from physical injuries sustained by reason of the father's negligence. Apparently the unbroken line of authorities is to the effect that the child cannot maintain such an action.

Under the law of this state, the age of legal majority is 21 years. Until arrival at that age, all persons are minors. Civ. Code 1910, § 3019. Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child. Civ. Code 1910, § 3020. In the meantime the child remains under the control of the father, who is entitled to the child's services and the proceeds of its labor, provided that the parental power may be lost: By releasing the right to a third person; by consenting to the adoption of the child by another; by failure of the father to provide the necessaries for the child, or by abandonment of his family; by consenting for the child to receive the proceeds of its labor, which consent, however, shall be revocable at any time; by consenting to the child's marriage; and by cruel treatment. Civ. Code 1910, § 3021.

So long as the right is not forfeited or released in some way (see, also, Civ. Code 1910, §§ 3023, 3024) the father is the natural guardian of his child's person, and is entitled also, as a matter of law, at least until the child is fourteen years of age, to act as the guardian of its property, upon filing a proper bond with the ordinary. Civ. Code 1910, §§ 3031 to 3035; Jordan v. Smith, 5 Ga.App. 559, 63 S.E. 595; Beard v. Dean, 64 Ga. 259; Watson v. Warnock, 31 Ga. 716 (1); Kennedy v. Meara, 127 Ga. 68 (5), 56 S.E. 243, 9 Ann.Cas. 396.

The plaintiff here was under the age of fourteen years, and the petition alleges no fact to show that the father had relinquished the usual power of control over her as his child, and it would seem that he would not forfeit such right merely by an isolated act of negligence.

Some of the decisions which deny the right of a child to maintain an action of this sort are expressly based upon the theory that the right did not exist at common law, while in other cases the courts have doubted the correctness of this theory and have placed their rulings upon other grounds. Whatever may have been the rule at common law, we are satisfied that it would be against the public policy of this state to allow the maintenance of such an action, and by public policy we mean only the public policy as declared by the public laws.

Counsel for the plaintiff in error refer to the dissenting opinions in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135, and Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113, and have contended that these dissents, rather than the majority opinions, should be accepted and followed by this court as expressive of the true law.

The case of Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 915, 71 A.L.R. 1055, is the nearest approach to authority for the plaintiff's contention that has been called to our attention; but in that case the father had employed his son, the minor, at a stipulated wage, and "it could be found that the father intended to take on a full master's responsibility, and to release his parental control so far as necessary to attain that end." The father carried employer's liability insurance, computed in part upon the child's wages as included in the listed pay rolls; the insurer's agent being aware of the relationship of parent and child. The case was finally put upon the change of the relation of parent and child to that of master and servant, and, being clearly distinguishable from the one at bar, any statements in the decision which may tend to question the soundness of the rule against liability as applicable to a case like the present were not necessary to the conclusion reached, and amounted to mere dicta. In fact, as we study the decision in the Dunlap Case, we do not conclude that even the New Hampshire court would uphold an action like the one here under consideration. It is noticed that in that case one of the justices dissented and another concurred only in the result.

In Fidelity & Casualty Co. v. Marchand, [1924] Can. S.C. R. 86, [1924] 4 D. L. R. 157, 13 B. R. C. 1135, it was held that a father was legally responsible for a negligent injury to his minor child, but the decision was placed upon a statute of the Province of Quebec, as to which one of the justices said: "This rule is in as wide terms as possible and renders every person capable of distinguishing right from wrong responsible for damages caused by his fault to another. There is here no limitation, no exception of persons, and the class of those to whom compensation is due is as wide as that of the persons on whom liability is imposed. It seems therefore sufficient to say lex non distinguit, however repugnant it may seem that a minor child should sue his own father, although it would probably be equally repugnant that a child injured by his father's negligent act, perhaps maimed for life, should have no redress for the damages he has suffered."

We can add but little of value to the many judicial utterances upon this question, since the most that we might be able to say has already been fully expressed in other decisions. Those who may be interested in the subject will find plenty of reading matter in the cases which we are citing in this opinion, and in the other decisions to which the cited cases refer.

In Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 15, 31 A.L.R. 1135, supra, the Supreme Court of North Carolina said: "From the very beginning, the family in its integrity has been the foundation of American institutions, and we are not now disposed to depart from this basic principle. Freedom in this country is the self-enforcement of self-enacted laws; and liberty with us is the right to go and do as you please under the law or so long as you please to do right. Hence, in a democracy or a polity like ours, the government of a well-ordered home is one of the surest bulwarks against the forces that make for social disorder and civic decay. It is the very cradle of civilization, with the future welfare of the commonwealth dependent, in a large measure, upon the efficacy and success of its administration. Under these conditions the State will not and should not permit the management of the home to be destroyed by the individual members thereof, unlessand until the interests of society itself are threatened. Whenever this occurs, adequate provision for the protection of the community, as well as the members of the family involved, has been supplied in the form of juvenile courts, welfare officers, etc. To say that a minor child, while living in the household of its parents, must be given the right to sue the latter for a tort committed, or else be declared an 'outlaw,' is simply begging the question and overlooking entirely the consequences that such a proceeding would have upon the household of which said child is an important member and component part. In this society of ours, complex as it is, all rights are relative; and the courts, as well as the Legislature, must look to the larger good and not merely to the smaller hope."

In the case of Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113, supra, the court, in holding that an infant cannot recover damages from its parents for personal injuries sustained by reason of their negligence, went on to say "The reasons in support of this doctrine may be summarized as follows: The family is a social unit. The members thereof are of the same blood. They are bound together by the strongest natural ties. Naturally, mutual love and affection obtain between the members thereof. There is mutual interest in one another's welfare. The family fireside is a place of repose and happiness. Society takes its caste from the character of its homes. It has a deep interest in maintaining in its integrity and stability the natural conception of the family unit. This imputes authority to the parent and requires obedience of the child. To question the authority of the parent or to...

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