Dudley v. Phillips

CourtSupreme Court of Tennessee
Writing for the CourtDYER; BURNETT
Citation405 S.W.2d 468,218 Tenn. 648,22 McCanless 648
Parties, 218 Tenn. 648, 21 A.L.R.3d 462 James Allen DUDLEY, b/n/f Jay W. Dudley, Plaintiff in Error, v. Curtis A. PHILLIPS, Curtis T. Phillips, Defendants in Error. Jay W. DUDLEY, Plaintiff in Error, v. Curtis A. PHILLIPS, Curtis T. Phillips, Defendants in Error.
Decision Date01 July 1966

Page 468

405 S.W.2d 468
22 McCanless 648, 218 Tenn. 648, 21
A.L.R.3d 462
James Allen DUDLEY, b/n/f Jay W. Dudley, Plaintiff in Error,
v.
Curtis A. PHILLIPS, Curtis T. Phillips, Defendants in Error.
Jay W. DUDLEY, Plaintiff in Error,
v.
Curtis A. PHILLIPS, Curtis T. Phillips, Defendants in Error.
Supreme Court of Tennessee.
July 1, 1966.

[218 Tenn. 649] Allen M. Elliott, Knoxville, for James Allen Dudley, b/n/j Jay W. dudley.

Morton, Morton & Lewis, Knoxville, for Curtis A. Phillips and Curtis T. Phillips.

OPINION

DYER, Justice.

This case comes to this Court by grant of writ of certiorari. The question presented: Is a suit by parents of a minor child, to recover damages for loss of services and medical expense, growing out of a tort committed [218 Tenn. 650] against the child by a third party derivative in nature and dependent upon the child's right to recover. The Trial Court and the Court of Appeals have answered this question in the affirmative.

The facts necessary to note are as follows: James Allen Dudley, a minor over fourteen years of age, was injured in a vehicle collision involving a car owned by defendant, Curtis A. Phillips, and operated at the time by defendant, Curtis T. Phillips. James Allen Dudley, by next friend, filed suit for personal injuries against these defendants. Jay W. Dudley, father of the minor, brought suit in a separate action for loss of services and medical expenses against the defendants. These two suits were tried together on the same evidence before the same jury. The jury returned a verdict in favor of Jay W. Dudley and against the minor, James Allen Dudley.

Page 469

The Trial Judge then instructed the jury as follows:

Ladies and gentlemen, you have reached in this case what is an inconsistent verdict. In other words, the right of Mr. Jay Dudley, Sr., to recover any damages in this case depends upon the entitlement of his son to recover damages, and if he is not entitled to any damages by reason of contributory negligence, then that same negligence is imputed to and charged to his father and therefore if the son is entitled to no damages, then the father is entitled to no damages.

* * * So I am going to ask you to return to the jury room and further consider this matter and see if you can arrive at a verdict in these cases (that is) consistent because you must keep in mind that the father's right can be no stronger than the son's right.

(Trial Judge's instructions)

[218 Tenn. 651] Pursuant to these instructions the jury retired and later returned verdicts in favor of both plaintiffs. This instruction, by the Trial Judge, that the suit by the father (Jay W. Dudley) is derivative and dependent upon his minor son's (James Allen Dudley) right to recover is assigned as error.

When a tort is committed against a child there arises two separate and distinct causes of action. The general rule is well stated by the Annotation in 42 A.L.R. 722, 724 as follows:

The almost universally accepted theory is that, upon injury to a child, there immediately arises in favor of the parent a cause of action for loss of services, medical expenses to which he will be put, etc. and that another and distinct cause of action arises in favor of the child for the elements of damage to him, such as pain and suffering, disfigurement, etc.

This quite clearly seems to be the usual view entertained by the courts, and the rule is the same with reference to a husband's right of recovery for loss of his wife's services.

42 A.L.R. 724

The above statement from A.L.R. is supported by our recent case of Boring v. Miller, 215 Tenn. ---, 386 S.W.2d 521 (1965) and other cases cited in that opinion.

On the issue presented Sub judice the general rule, and reasons therefor, is given in 39 Am.Jur., Parent and Child, Sec. 85, page 731 as follows:

Since the parent ordinarily has no right of action unless the child has, if the child itself failed to exercise the care proper to be required of one of its [218 Tenn. 652] age, and that lack of care contributed to the accident, the parent cannot recover. This defense, however, is not available where the conduct of the defendant amounts to a positive and wilful injury, or was so deliberate, persistent, and intentional as to be equivalent in law to such an injury. It is for the jury to determine whether the injury was one of this character. If the lack of care of the child was due to exhaustion, caused by his having been kept at work by the defendant for an excessive length of time, so that he was physically unable to exercise the necessary skill and care, his negligence is no defense.

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16 practice notes
  • McCoy v. Colonial Baking Co., Inc., Nos. 07-CA-58766
    • United States
    • United States State Supreme Court of Mississippi
    • November 28, 1990
    ...while residing at a nursing home, the husband could not recover for any damages arising from his wife's injuries.); Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 (1966) ("We hold a [parent's loss-of-consortium] cause of action ... resulting from a tort committed against the child is der......
  • Barger for Wares v. Cox, No. 14422
    • United States
    • Supreme Court of South Dakota
    • August 28, 1985
    ...Bias v. Ausbury, 369 Mich. 378, 120 N.W.2d 233 (1963); Fekete v. Schipler, 80 N.J.Super. 538, 194 A.2d 361 (1963); Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 Page 165 In Irlbeck v. Pomeroy, 210 N.W.2d 831 (Iowa 1973), a case similar to the instant action, the Iowa Supreme Court held ......
  • Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016–00447–COA–R9–CV
    • United States
    • Court of Appeals of Tennessee
    • January 9, 2017
    ...Sky High argues that the trial court was correct in its decision, citing the Tennessee Supreme Court's decision in Dudley v. Phillips, 218 Tenn. 648, 651, 405 S.W.2d 468 (Tenn. 1966). In Dudley, the Tennessee Supreme Court held that when a child is injured, two "separate and distinct causes......
  • Handeland v. Brown, No. 2--56273
    • United States
    • United States State Supreme Court of Iowa
    • March 27, 1974
    ...arose, we will discuss each basis. I. The derivative action theory. Illustrative of cases in the first category is Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 (1966). There, without saying why, the court held, '(A) cause of action arising in favor of the parent resulting from a tort c......
  • Request a trial to view additional results
16 cases
  • McCoy v. Colonial Baking Co., Inc., Nos. 07-CA-58766
    • United States
    • United States State Supreme Court of Mississippi
    • November 28, 1990
    ...while residing at a nursing home, the husband could not recover for any damages arising from his wife's injuries.); Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 (1966) ("We hold a [parent's loss-of-consortium] cause of action ... resulting from a tort committed against the child i......
  • Barger for Wares v. Cox, No. 14422
    • United States
    • Supreme Court of South Dakota
    • August 28, 1985
    ...Bias v. Ausbury, 369 Mich. 378, 120 N.W.2d 233 (1963); Fekete v. Schipler, 80 N.J.Super. 538, 194 A.2d 361 (1963); Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 Page 165 In Irlbeck v. Pomeroy, 210 N.W.2d 831 (Iowa 1973), a case similar to the instant action, the Iowa Supreme Court held ......
  • Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016–00447–COA–R9–CV
    • United States
    • Court of Appeals of Tennessee
    • January 9, 2017
    ...Sky High argues that the trial court was correct in its decision, citing the Tennessee Supreme Court's decision in Dudley v. Phillips, 218 Tenn. 648, 651, 405 S.W.2d 468 (Tenn. 1966). In Dudley, the Tennessee Supreme Court held that when a child is injured, two "separate and distinct c......
  • Handeland v. Brown, No. 2--56273
    • United States
    • United States State Supreme Court of Iowa
    • March 27, 1974
    ...arose, we will discuss each basis. I. The derivative action theory. Illustrative of cases in the first category is Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 (1966). There, without saying why, the court held, '(A) cause of action arising in favor of the parent resulting from a tort c......
  • Request a trial to view additional results

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