Herrell v. Haney
| Decision Date | 08 December 1960 |
| Court | Tennessee Supreme Court |
| Parties | Margaret HERRELL, Admrx. Tommy Haney, Deceased, Plaintiff in Error, v. Fred HANEY, Defendant in Error. 11 McCanless 532, 207 Tenn. 532, 341 S.W.2d 574 |
Privette & Mann, Knoxville, for plaintiff in error.
Poore, Cox, Baker & McAuley, Knoxville, for defendant in error.
The appeal in this case is properly to this Court by reason of the trial judge's action in sustaining a plea in abatement to the declaration.
The principal question presented in this case is one of first impression.
The facts as appearing from the pleadings and the stipulation of counsel stated in the briefs are the following: Tommy Haney, deceased, age 13 years, and his brother, Fred Haney, age 17 years, both being unemancipated, lived at the home of their parents, Donald Haney and Elizabeth Haney. Fred Haney, the defendant in error, with the permission of his father, was driving the family car at the time an accident occurred on July 19, 1958, as a result of which the car was wrecked and the younger brother, Tommy, was killed. Suit was brought by Margaret Herrell as administratrix of the estate of Tommy Haney against Fred Haney alone for the wrongful death of his brother.
The primary question raised by the first assignment of error is whether it is against the public policy of this State to allow an unemancipated minor brother, or as in this case his administrator, to sue the surviving unemancipated minor brother, both living with their parents, in tort, as in the instant case for a wrongful death.
The secondary question is, if the answer to the first question be that such action may be maintained, may it be maintained where the parents of the alleged tort-feasor are the statutory beneficiaries of the decedent's cause of action, on the theory that to permit same would violate the established public policy of Tennessee that a parent may not sue his child and that, therefore, to permit this action would be to permit that to be done indirectly which may not be done directly.
We are indebted to respective counsel for briefs presenting all authorities that might be at all relevant with reference to the primary question. This question has arisen in comparatively few appellate jurisdictions and in every one where it has arisen the right of action has been sustained. There is no case holding to the contrary.
The very late case decided by the Supreme Court of Appeals of Virginia, Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875, contains practically all available authority on the point and holds that such an action may be maintained. These authorities appear on page 876 of 113 S.E.2d, among those authorities is 52 Am.Jur. 'Torts' p. 439, Sec. 97:
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Also cited in the opinion is Munsert v. Farmers Mut. Auto. Ins. Co., 229 Wis. 581, 281 N.W. 671, 119 A.L.R. 1390, which case is cited in Brown v. Selby, Tenn., 332 S.W.2d 166, which will be referred to hereinafter.
The opinion in the Virginia case covers every point that has been urged against the allowance of such an action in other reported cases; it would indeed be a work of supererogation to do more than state that that opinion rejects the argument that it would be against public policy to allow the action, or would seriously disturb the family relationship, or destroy the family unit, or would be an open invitation to fraud and collusion, particularly where there is insurance on the automobile covering the driver or owner against liability for personal injuries. On page 877 of 113 S.E.2d the Court said:
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