Bulloch v. Bulloch

• Decision Date: 20 February 1932
• Docket Number: No. 21414.,21414.
• Parties: BULLOCH. v. BULLOCH.
• Court: Georgia Court of Appeals

45 Ga.App. 1

163 S.E. 708

BULLOCH.

v.BULLOCH.

No. 21414.

Court of Appeals of Georgia, Division No. 2.

Feb. 20, 1932.

Syllabus by the Court.

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.

STEPHENS, J., dissenting.

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.

Ellise Bulloch, a minor, brought suit by another as next friend, against her father, N. E. Bulloch, to recover damages for pain and suffering resulting from a physical injury sustained by her by reason of the overturning of an automobile, which the defendant's wife, the mother of the child, was driving on request of the defendant, and in which the child was riding with its parents. The court sustained a general demurrer and dismissed the petition, and the plaintiff excepted.

The petition alleged that the defendant, with his wife and child, was traveling upon one of the public highways of this state, and that after he had driven the automobile for some time he became tired and requested his wife to drive awhile for him, and that in accordance with such request his wife assumed control of the vehicle and began to operate it at a speed of from 30 to 35 miles per hour; that on arriving at a point upon the highway where, as a result of recent rains, there were several deep ruts which rendered the handling of the car more difficult and created a dangerous condition for a car traveling at such speed, "even with the best of handling, " the defendant's wife, "in attempting to operate the car over and along said set of ruts, applied an unusual amount of gas to force the car into the desired direction, and, as she applied the gas by pressing her foot upon the gas control, she suddenly and without warning fainted and the car was thereupon entirely out of control, " with the result that the automobile turned over twice, and the plaintiff, who was sitting at the time with the defendant on the back seat of the car, was injured; "that defendant Is liable to [the plaintiff] for said injuries received at the hands of his agent who was operating said automobile for him and by his direction at the time and sustained by petitioner without any fault whatever upon [the plaintiff's] part"; that "the defendant was grossly negligent in turning over the operation of said car to his said wife and agent, for the reason that during her periods of menstruation defendant's wife was alwaysin a nervous condition and subject to fainting 6pells,. especially under the least excitement or strain coming upon her during said period; that the menstrual period of said wife and mother had come upon her the day before, and that she was then and there in the midst of said period and in an extremely nervous condition, and that these facts were well known to defendant at the time he turned over the control of the car to his said wife and caused her to operate it as his agent"; and "that on account of this cause, * * * under the excitement and strain of the moment * * * said operator fainted just as she applied increased pressure upon the gas control of said car, and that from this cause the wrecking of said car and injury to petitioner arose."

The petition alleged no other facts as to the negligence of the defendant or as to the cause of the overturning of the vehicle.

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 1010, § 3019. Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child. Civ. Cede 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 consent ing 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, 3021) 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 1010, §§ 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 theconclusion 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. 15T, 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...