Durham v. Durham

• Decision Date: 05 March 1956
• Docket Number: No. 39967,39967
• Citation: 85 So.2d 807,227 Miss. 76
• Parties: Deborah Claudia DURHAM, a Minor, by T. F. Logan, Jr., Her Next Friend and Guardian of Her Estate, v. W. M. DURHAM.
• Court: Mississippi Supreme Court

Page 807

85 So.2d 807

227 Miss. 76

Deborah Claudia DURHAM, a Minor, by T. F. Logan, Jr., Her Next Friend and Guardian of Her Estate, v. W. M. DURHAM.

No. 39967.

Supreme Court of Mississippi.

March 5, 1956.

Roberson, Luckett & Roberson, Clarksdale, for appellant.

Brewer & Brewer, Clarksdale, for appellee.

GILLESPIE, Justice.

The plaintiff, an unemancipated minor, sued her father under the wrongful death statute, Section 1453, Code of 1942, for the wrongful death of plaintiff's mother, the wife of defendant. The death was the result of defendant's simple negligence in the operation of an automobile. Plaintiff and defendant were the sole survivors of the deceased. The lower court sustained a demurrer to the declaration, and plaintiff appeals.

We dispose of two preliminary questions before discussing the main issue presented by this appeal.

The relationship between the deceased and defendant was that of husband and wife, and the wife could not have sued for her injuries had she survived the accident. Ensminger v. Ensminger, Miss., 77 So.2d 308. But that relationship does not preclude this action if there is no impediment to the suit arising from the relationship between the plaintiff and defendant. Deposit Guaranty Bank & Trust Co. v. Nelson, 212 Miss. 335, 54 So.2d 476.

Under the statute, the defendant is a distributee entitled to one-half of any recovery for the death of his wife, but where there is no impediment otherwise denying the other distributee from maintaining the suit, the action may be maintained by the distributee other than the tort-feasor. Nosser v. Nosser, 161 Miss. 636, 137 So. 491.

The main question in this case is whether the relationship between the plaintiff and defendant, being that of unemancipated minor child and father, which, under the common law, precludes a recovery by the plaintiff for a bodily injury, has the effect of precluding an action by plaintiff for the indirect injury to herself through the death of her mother. The precise question has not been decided by this Court.

This Court decided the case of Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, in 1891, and therein it was held that a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to an unemancipated minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.

The rule laid-down in Hewlett v. George, supra, has since been applied and recognized by this Court and its vitality has not been diminished. Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A.L.R. 1259; Fortinberry v. Holmes, 89 Miss. 373, 42 So. 799; Rainey v. Horn, 221 Miss. 269, 72 So.2d 434. Although variously modified and limited, the basic rule has been followed in most of the States. Annotation 19 A.L.R.2d 423. While there were no prior English or American cases when the rule was first enunciated by this Court in 1891, it is a rule of common law. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 941, L.R.A.1915E, 239; Planters' Oil Mill v. Yazoo & M. V. R. Co., 153 Miss. 712, 121 So. 138.

Plaintiff does not contend that the rule of immunity just stated does not obtain in Mississippi, nor does she urge that we overrule the cases announcing and adhering to the rule. The heart of her argument is that this action is a statutory one, complete within itself, and since there are no restrictions or limitations on the persons who may sue or be sued, the statute is a declaration of public policy of this State made by the legislature, and the public policy declared by the courts was necessarily displaced by the statute. Plaintiff disclaims any contention that the statute repealed the common-law rule of immunity by implication, but that there was a direct repeal.

The case of Strong v. Strong, 1954, 70 Nev. 290, 267 P.2d 240, 241, is not only directly in point on the question under consideration, but substantially the same argument was made in that case as plaintiff makes. That was a suit by an unemancipated child against his mother for the wrongful death of his father growing out of the operation of an automobile, and was brought under the Nevada wrongful death statute. In denying the right in the unemancipated minor to maintain the action, the Supreme Court of Nevada said:

'It is clear then that the common law has been modified in this state by legislative act giving a cause of action for wrongful death. It is maintained by appellant that the same statute likewise modified the common law rule, which appellant frankly recognizes, negativing the right of a minor to sue a parent in tort. Appellant's contention is based upon the assertion that the right given to the heirs of the deceased person, or to the deceased's personal representatives for the benefit of his heirs, for the death of such deceased person when caused by the wrongful act or neglect of another, is without restriction or limitation. It is asserted that this absence of restriction or limitation draws into the meaning of the statute the right of the minor child to sue the mother for the wrongful death of the father. It is contended that the statute does not deal with particular deaths by wrongful act, nor with particular parties, but applies to all deaths by wrongful act, and permits suit by any individual if he be a member of the class specified in the statute, to-wit, an heir that in like manner the statutory action against 'the person causing the death' is not limited to cases where such person is not the mother or father of the heir suffering the loss. ...