Baker v. Baker

• Decision Date: 16 December 1935
• Citation: 89 S.W.2d 763
• Parties: BAKER v. BAKER.
• Court: Tennessee Supreme Court

Page 763

89 S.W.2d 763

BAKER v. BAKER.

Supreme Court of Tennessee.

December 16, 1935.

Appeal from Chancery Court, Knox County; Hamilton S. Burnett, Judge.

Suit by Ruth Evelyn Baker, by next friend, Emma Baker, against F. H. Baker. From an order overruling a demurrer, the defendant appeals.

Demurrer sustained, and bill dismissed.

George S. Child, of Knoxville, for appellant.

Olen Henderson, of Knoxville, for appellee.

DAVIS, Special Judge.

The complainant, an infant 14 years of age, suing through her mother as next friend, seeks a decree against her father, the defendant, for the future support of the minor.

The bill alleges that complainant's father and mother have been divorced; that in the divorce decree complainant's custody was awarded to her father, the defendant, in 1929. This custody was later changed by a decree of the domestic relations court of Knox county, so as to award the care and custody of complainant to her mother.

The bill charges that the defendant is employed by the Tennessee Valley Authority, and that he is able to furnish support to the complainant, but that he has failed and refused to do so, and has left complainant destitute. She further charges that the merchants of the community think that the Tennessee Valley Authority is immune from garnishment, and for this reason she was unable to pledge defendant's credit for the necessities of life.

The prayer of the bill is that defendant be required to pay into court $40 monthly, until complainant has reached her majority; such fund to be used to provide complainant with the necessaries.

Defendant demurred to the bill on the ground that the relief sought is not authorized by the common law or any statute of this state, and that a cause of action is not stated in the bill. The trial court overruled the demurrer, and, in his discretion, allowed an appeal from that order. The chancellor's action on the demurrer is assigned as error.

In Fuller v. Fuller, 89 S.W.(2d) 762, an opinion of this court by Mr. Justice Cook, in 1932, it was held that the form of action here presented could not be maintained; citing Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.(2d) 46, 75 A. L.R. 1305. It is earnestly insisted that the ruling there made is erroneous, and should be overruled.

In treating the subject of actions between parent and child, 46 Corpus Juris, 1324, states the rule as follows:

"A child may recover on the parent's contract to pay him for services to, or support of, the parent. So a minor child has an undoubted right to maintain an action against the parent in respect of the latter's dealing with the child's property. But it has been held that actions by children against their parents are not to be encouraged, unless to redress clear and palpable injustice; and, in the absence of statute, a minor child has no right of action against the parent to compel performance of the latter's duty in respect of maintenance and education, or to recover damages for torts."

This court has held that a child cannot recover, in an action against a parent for personal injuries suffered in the infliction of corporal punishment upon the child. McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, 102 Am.St.Rep. 787, 1 Ann.Cas. 130.

The author of Ruling Case Law, in dealing with the question of the liability of the father for his child's necessaries, says: "The civil remedy is more commonly worked out by holding that, if the father leaves his children destitute, he confers on anyone who finds them in that condition an agency to supply them with necessaries; the volunteer can therefore recover the cost of the supplies from the father in a civil action." 20 R.C.L. 624.

In Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A.L.R. 1259, a Mississippi case, it is held that an infant...