Glover v. Glover

• Decision Date: 03 July 1958
• Citation: 44 Tenn.App. 712,319 S.W.2d 238
• Court: Tennessee Court of Appeals
• Parties: Harold GLOVER v. Edward W. GLOVER, Andrew Glover and Pearl Glover.

Page 238

319 S.W.2d 238

44 Tenn.App. 712

Harold GLOVER v. Edward W. GLOVER, Andrew Glover and Pearl Glover.

Court of Appeals of Tennessee, Middle Section.

July 3, 1958 Certiorari Denied by Supreme Court Dec. 12, 1958.

Noble Freemon, Jr., Lawrenceburg, for plaintiff.

Harwell & Boston, Lawrenceburg, for defendants.

SHRIVER, Judge.

I

This is a suit for damages for personal injuries sustained in an automobile accident. Plaintiff, Harold Glover, was riding as a passenger in a car owned and driven by his cousin, defendant Edward Glover, when it collided head-on with a pick-up truck owned by plaintiff's father, Andrew Glover, and being driven by plaintiff's mother, defendant Pearl Glover.

The accident occurred in Lauderdale County, Alabama, on Jan. 29, 1955, at which time plaintiff was a minor 19 years old. Suit was brought in Lawrence County, Tennessee, and personal service was had on the defendants in that county.

Andrew and Pearl Glover filed a plea entitled 'Plea in Abatement' but which is in fact a plea in bar, averring that their son, Harold Glover, was born July 24, 1935 and was an unemancipated minor, age 19 years, at the time of the accident and that, therefore, he could not maintain a suit against his parents.

Issue was joined on this plea, and, after hearing the testimony of the plaintiff, the Court sustained it, dismissing plaintiff's action. After a motion for a new trial was made and overruled the cause was appealed in error to this Court and assignments filed.

II

It is stated by counsel for defendants that the facts and circumstances surrounding this accident, as to who was negligent, what was the proximate cause, etc., are not at issue on this appeal, but merely the question of whether or not Harold Glover, who was a minor at the time of the accident, can maintain an action for damages against his father and mother.

The testimony shows that plaintiff at the time of the accident was a member of the U. S. Air Force and was at home on a furlough. He testified that he had wanted to go into the Armed Forces when he was seventeen years old but that his parents objected and stated to him that if he would wait until he reached the age of eighteen that he would have their permission to join. He waited until he was 19 years of age and then joined the U. S. Air Force. He did not make his parents an allotment nor did he turn over any of his earnings to them.

The testimony further shows that for two years before joining the Air Force, plaintiff had contracted with his father to put in crops of corn, cotton and hay and had thus supported himself at least to some extent during those two years. He testified that his father furnished the tractor and gas and received two-third of the corn and hay, and the landowners from whom they rented the land got one-third of the corn and hay and one-fourth of cotton, which amounted to nine bales the first year and seven bales the second year, his part amounted to about $1,000 each year, under the plan.

He further stated that during this time he remained at home with his father and mother and was subject to their control; that he did not pay any amount to his father for his support; and that he was 19 years of age when he went into the Armed Forces with the approval of his parents. He testified on cross examination.

'Q. You were subject, I take it, also, to their control, you didn't do anything contrary to their wishes? A. No.

'Q. You felt like you were their son and followed their wishes and control? A. Yes, sir.

'Q. And still intend to do so? A. Sure.'

He further testified that he was 20 years old at the time of the trial and would be 21 in July of that year.

On re-direct examination he testified:

'Q. Has your father ever told you to turn over any of the money that you made while in the armed forces to him? A. No.

'Q. Has he treated you like a man that you were able to make your own decisions? A. That's right.

'Q. Has he treated you man to man, or as father to a child? A. Man to man.'

Counsel for plaintiff insists that the facts shown by the record, as to the farming operations of the plaintiff and his arrangement with his father as to same, amounted to a partnership and that these facts give rise to the implication that the minor was so emancipated by his father before his entrance into the armed services as that he could maintain this action.

It is the further insistence of the counsel for plaintiff that the enlistment of the plaintiff in the Armed Forces of the U. S. with the consent of the father and mother was a complete emancipation and that this condition existed at the time of the injuries in question and, therefore, he is able to maintain this action.

He insists that enlistment in the military service, as a matter of law, amounted to emancipation and, therefore, it was error to sustain the Plea in Abatement and that, at least, the question as to his emancipation was a question of fact for submission to the jury.

III

--Assignments of Error--

There are five assignments of error, but, in the aggregate, they raise the two questions recited hereinabove, to wit, (1) whether or not it was error for the Court to sustain the Plea in Abatement in view of the testimony regarding the farming contract of the plaintiff with his father and circumstances surrounding his life in the home prior to his entrance into the Armed Forces; and (2) was it error to sustain the plea in view of the military status of plaintiff.

IV

Under the authorities it is generally held that a minor cannot sue his parents in a tort action. However, one of the recognized exceptions to this rule is in the event of the emancipation of a minor, in which event he or she can maintain an action in tort against the parents.

In the annotation in 122 A.L.R. p. 1355, it is said that the number of cases involving the questions raised here are rapidly increasing and that certain differentiating features have appeared in the later cases.

There is no reported Tennessee case that we have been able to discover which is exactly in point, however, this accident occurred in Alabama, hence, Alabama law is controlling.

In the early case of Donegan v. Davis, 66 Ala. 362, it was held,

'Emancipation vel non is, at most, a question of fact, to be determined by the circumstances in evidence; it is not necessary, in every case, to show an abandonment of home by the infant, or a disruption of family ties; it is sufficient, as in this case, to show that he supported himself, and paid for his board at home, his father being insolvent.'

In a later case Sinclair v. Taylor, 1937, 27 Ala.App. 418, 173 So. 878, the Court held,

Syl. 6. 'Mother was not entitled to recover for injuries to daughter, if at time of accident daughter had been emancipated.'

Syl. 7. 'In suit by mother for injuries to 19 year old daughter who was servant outside or mother's home, but who lived with mother in home of her brother-in-law, whether daughter was emancipated so as to preclude recovery by mother held for jury.'

And in Cragford Bank v. Cummings, 216 Ala. 377, 113 So. 243, it was said that a father may emancipate a child and allow him to earn for himself, free from the claims of father or his creditors. And to like effect is Lyon v. Bolling, 14 Ala. 753.

In Fowlkes v. Ray-O-Vac Co., 52 Ga.App. 338, 183 S.E. 210, it was held that, while an unemancipated minor cannot sue a father for a tort to himself, yet the rule is different, and such an action is maintainable if the child is emancipated at the time of the tort and the action.

It is pointed out in the notes in 122 A.L.R. 1355, that in Martens v. Martens, 11 N.J.Misc. 705, 167 A. 227, one of the questions involved was as to whether or not the minor was emancipated at the time of the injury incurred in an automobile collision for which she was suing her father. The Court, apparently, assumed that the action would lie in the event she was emancipated at the time.

In Reingold v. Reingold, 115 N.J.L. 532, 181 A. 153, it was expressly stated that the Court was not to be understood as holding that a child might not sue its parents in tort for actionable negligence which occurred after the child became of age and was fully emancipated. However, it was held that the child who had obtained majority could not sue for an injury which occurred before the emancipation took place.

In 67 C.J.S. § 87, p. 812, under the title 'Parent and Child', it is pointed out that emancipation of a minor may be partial or complete, express or implied, and has the effect of rendering the child sui juris as far as respects its relationship to its parents. It is stated in the text,

'Emancipation may result from agreement, or it may occur by operation of law. It has been asserted as a general rule that emancipation of the child leaves the child, as far as the parent is concerned, free to act on its own responsibility and in accordance with its own will and pleasure, with the same independence as though it had attained majority.'

In Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611, L.R.A.1917B, 690, emancipation was defined as follows:

"Emancipation' of a child is the relinquishment by a parent of control or authority over the child, conferring on him the right to his own earnings and terminating the parent's legal duty to support; it may be express, as by voluntary agreement of parent and child, or implied from such acts and conduct as import consent, and it may be conditional or absolute, complete or partial.'

In Memphis Steel Construction Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, L.R.A.1918B, 406, it was held that complete emancipation loses to the parent custody and control and works a severance of the legal filial relation as completely as if the child were of age.

In Going v. Going, 8 Tenn.App. 690, it was said that the marriage of a minor, even without the parents' consent, emancipates a child from the custody of the parents; for the marriage creates relations inconsistent with subjection to the...