Dudley v. Phillips
| Decision Date | 01 July 1966 |
| Citation | 405 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. |
| Court | Tennessee Supreme Court |
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.
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 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. 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)
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.
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 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.
There is some controversy as to the basis of the rule charging the parent with the contributory negligence of his child. Most of the cases speak of the defense as one of 'imputed negligence,' although this theory has been criticized upon the ground that it is properly applicable only where an agency relation, express or implied, exists. The reason given by at least one court is that the parent is in law the assignee of a part of the child's cause of action. This would seem to be merely a statement, in technical language, of the generally accepted idea that the parent's cause of action is based on that of the child's and stands subject to defenses available against the child. It would seem that the true basis for the rule is to be found in the doctrine of derivative contributory negligence under which one deriving from another a cause of action for negligence is charged with his contributory negligence.
There are several Tennessee cases indicating, but not directly holding, we follow the rule stated above in 39 Am.Jur. that the action arising in favor of the parent is a derivative action dependent upon the right of injured minor child to recover. Among these cases the following: Horne v. Palmer, 38 Tenn.App. 354, 274 S.W.2d 372 (1954); Berry v. Foster, 199 Tenn. 352, 287 S.W.2d 16 (1955); Borden v. Daniel, 48 Tenn.App. 314, 346 S.W.2d 283 (1960); Southern Railway Co. v. Butts, 215 Tenn. ---, 379 S.W.2d 794 (1964).
In Horne v. Palmer, supra, a minor son was injured in a vehicle collision while operating his father's automobile. The minor son, by next friend, sued for personal injuries and his father, in a separate action, sued for property damage and medical expenses. These two suits were consolidated and tried to the same jury. The jury found for the father in his suit and against the minor son in his suit. The Court found these verdicts to be inconsistent. This holding is based on the fact the suit by the father is dependent upon the suit by the minor son. The Court would have to assume the jury, in finding against the minor son, found him guilty of proximate contributory negligence. Then when the same jury, under the same evidence, found for the father in his suit there resulted verdicts that are contradictory and irreconcilable.
In Borden v. Daniel, supra Don R. Borden, as next friend...
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