Gunn v. Rollings

• Citation: 250 S.C. 302,157 S.E.2d 590
• Decision Date: 24 October 1967
• Docket Number: No. 18715,18715
• Parties: Donnie GUNN, By and Through his Guardian ad Litem, Respondent, v. Floyd S. ROLLINGS, Administrator of the Estate of Eufaula Rollings, Appellant. Eddie Dale GUNN, By and Through his Guardian ad Litem, Respondent, v. Floyd S. ROLLINGS, Administrator of the Estate of Eufaula Rollings, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 590

157 S.E.2d 590

250 S.C. 302

Donnie GUNN, By and Through his Guardian ad Litem, Respondent, v. Floyd S. ROLLINGS, Administrator of the Estate of Eufaula

Rollings, Appellant.

Eddie Dale GUNN, By and Through his Guardian ad Litem, Respondent, v. Floyd S. ROLLINGS, Administrator of the Estate of Eufaula

Rollings, Appellant.

No. 18715.

Supreme Court of South Carolina.

Oct. 24, 1967.

Hayes, Brunson & Gatlin, Rock Hill, for appellant.

Ridley, Simrill & McKinney, Rock Hill, for respondent.

MOSS, Chief Justice.

These two actions were instituted in behalf of Donnie Gunn and Eddie Dale Gunn, minors, by a Guardian ad litem torecover damages for personal injuries sustained while riding as passengers in an automobile operated by Eufaula Rollings.

It is alleged that the injuries to the said minors were the result of the negligent, careless, reckless and willful acts of Eufaula Rollings in the operation of an automobile on March 27, 1965, in York County, South Carolina. It appears that Rollings lost his life in the collision and these actions are against the administrator of his estate.

The answers of the administrator, in the third defense, alleged that although the decedent was not the natural or adoptive father of the two minors, decedent was the two minors' stepfather, and the two minors and decedent lived in the same household, voluntarily assumed the informal relationship of parent and children, and the decedent, therefore, stood In loco parentis to the two minors at the time of the accident. It is further alleged that because of the aforesaid In loco parentis relationship that the unemancipated minors could not maintain these actions against a person standing In loco parentis.

Plaintiffs filed demurrers to the third defense on the ground that the alleged relationship therein asserted would not be a bar to their actions. The lower court sustained the demurrers of the plaintiffs and the defendant has appealed.

It is elemantary that in passing upon a demurrer, the court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are, for the purpose such consideration, deemed admitted. Outlaw v. Calhoun Life Ins. Co., 236 S.C. 272, 113 S.E.2d 817. The question for determination here is whether or not the relationship between an unemancipated minor and one who stood In loco parentis is a bar to an action by the minor against the personal representative of the person who stood In loco parentis.

It is the settled law of this state that an unemancipated child has no right of action against his parent for personal injuries caused by the parent's negligence, recklessness, willfulness and wantonness. Kelly v. Kelly, 158 S.C. 517, 155 S.E. 888; Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280; Maxey v. Sauls, 242 S.C. 247, 130 S.E.2d 570, and Fowler v. Fowler, 242 S.C. 252, 130 S.E.2d 568. In the last cited case we stated:

'The rule prohibiting suit by a minor against the parent for a personal tort is based upon considerations of public policy, whih discourage causes of action that tend to undermine and destroy family unity and parental discipline. * * *'

Where one is In loco parentis, the rights, duties, and liabilities of such person are the same as those of a natural parent and such person is bound for the maintenance, care and education of the child so long as the relationship exists. The same rules of parental discipline apply to persons acting In loco parentis. 67 C.J.S. Parent and Child §§ 72 and 73, pages 804 and 805.

Generally speaking, an unemancipated child cannot maintain an action for damages for personal injuries against a stepparent who stands In loco parentis to the minor unless a right of action is authorized by statute. 67 C.J.S. Parent and Child § 61b(2), page 787. However, suits of this kind have been sustained in several cases, but in all of them the cause of action appears to have been based upon some type of deliberate of malicious wrong or cruel or inhuman treatment, and, even in such a case some courts hold that the child cannot maintain the suit. 39 Am.Jur., Parent and Child, Section 90, page 736.

In Trudell v. Leatherby, 212 Cal. 678, 300 P. 7, an action against plaintiff's stepmother for negligence in the operation of an automobile, the court, in denying the right to maintain the same, stated that the reason for the negative rule was avoidance of disruption of the peace the harmony of the members of a household, and deciding that the relationship prohibited the action, the court said:

'As already seen, such actions tend to bring discord into the family and to disrupt the peace and harmony which should exist between the members of the same household. The same vexatious conditions created in the family circle by litigation between parent and child would result from like litigation instituted by a minor against the stepfather or stepmother when the minor has been taken into, and is a member of, the household of the latter. We can see no good reason why we should apply the rule in one case and deny it application in the other. If the...