Harralson v. Thomas
| Decision Date | 18 June 1954 |
| Parties | HARRALSON v. THOMAS, Adm'r. |
| Court | United States State Supreme Court — District of Kentucky |
Hubert Meredith, Greenville, for appellant.
John F. Wood and Randolph Kramer, Owensboro, for appellee.
CLAY, Commissioner.
This case is somewhat unique. It is a suit by the personal representative of the defendant's infant daughter to recover damages for her wrongful death caused by the alleged negligence of defendant's minor son in the operation of defendant's family purpose automobile. The jury returned a $10,000 verdict for the plaintiff.
Because of its importance the Court requested the parties to file briefs directed to the question of whether or not an unemancipated minor child has a cause of action against its parent for a personal tort arising out of ordinary negligence in the operation of a motor vehicle. The plaintiff did not see fit to honor the request.
The research of defendant's counsel and our own indicates this issue has not heretofore been directly presented or decided in Kentucky. In the case of Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610, the recovery of an infant child in a similar suit against its parent was upheld, but the issue we have raised was not discussed or decided in the opinion. We have very recently upheld in Brown v. Gosser, Ky.1953, 262 S.W.2d 480 (), the right of a married woman to sue her husband for a similar tort. For reasons to be hereafter noted, that decision is not controlling here.
Our first question concerns the nature of the right of action created by Section 241 of the Kentucky Constitution and KRS 411.130. While they authorize the assertion of a claim on behalf of the decedent's personal representative which would not have survived under the common law, it has been held that these two provisions simply extended beyond his death substantially the same cause of action the injured party may have had if he survived. Louisville Ry. Co. v. Raymond's Adm'r, 135 Ky. 738, 123 S.W. 281, 27 L.R.A.,N.S., 176. For that reason the plaintiff's claim in this case depends upon the infant child's right to sue her father if she was living.
The basic problem is whether or not an unemancipated infant child may sue its parent for a tort of this character. As a matter of first impression we are confronted with an amazing array of conflicting authorities. A most thorough analysis of the question may be found in 19 A.L.R.2d 423. In this Note it is pointed out that the rule generally followed is that an unemancipated minor cannot maintain an action against his parent for damages involving ordinary negligence, particularly in automobile accident cases. See especially pages 439 and 442 of that Note. This general rule is likewise stated in 39 Am.Jur, Parent and Child, Section 90.
As further pointed out in the cited Note, while many cases refer to the principle as oen of common law, there appear to have been no English decisions establishing it and practically no American cases on the question prior to 1891. See Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055. There are some indications of a modern tendency to abandon the rule. See the Dunlap case just cited and Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405. However, we have recently recognized the principle that a parent may not sue his unemancipated minor child for a tort. Thompson v. Thompson...
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Rigdon v. Rigdon
...immunity from any liability to her unemancipated child. The trial court, following a sixteen-year-old precedent in Harralson v. Thomas, Ky., 269 S.W.2d 276 (1954), dismissed the suit against the mother. This appeal Appellant contends that the rule in Harralson, supra, should be abandoned. W......
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McCallum v. Harris
...for her death alleged to have been caused by her deceased father. The trial court's ruling followed our decision in Harralson v. Thomas, Adm'r Ky., 269 S.W.2d 276. Appellee's counsel endorsed his approval of the form of the order at the time of its entry. The dismissal order did not contain......
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Thurman v. Etherton
...action against his parent to recover damages for negligence. 19 A.L.R.2d 425, 139. This rule has been recognized in Kentucky. Harralson v. Thomas, Ky., 269 S.W.2d 276 (1954); Redwine v. Adkins, Ky., 339 S.W.2d 635 (1960); Harlan National Bank v. Gross, Ky., 346 S.W.2d 482 (1961). It has bee......
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Bentley v. Bentley, No. 2003-SC-1051-DG.
...provisions for the care and necessities of the child." Id. at 923. Parental immunity first entered our jurisprudence in Harralson v. Thomas, 269 S.W.2d 276 (Ky.1954), a case rendered four months after Thompson was decided. Rigdon indicated that it was addressing the immunity created by Harr......