Logan v. Reaves

• Decision Date: 08 February 1962
• Citation: 354 S.W.2d 789,13 McCanless 631,209 Tenn. 631
• Parties: , 209 Tenn. 631 Catharine B. LOGAN, Adm'x of Marie S. Seneker, Deceased, v. Louise Seneker REAVES et al.
• Court: Tennessee Supreme Court

Page 789

354 S.W.2d 789

13 McCanless 631, 209 Tenn. 631

Catharine B. LOGAN, Adm'x of Marie S. Seneker, Deceased, v. Louise Seneker REAVES et al.

Supreme Court of Tennessee.

Feb. 8, 1962.

Rehearing Denied April 4, 1962.

Hodges, Doughty & Carson, Knoxville, J. N. Hardin, Greeneville, for plaintiffs.

Kramer, Dye, McNabb & Greenwood, Knoxville, for defendants.

FELTS, Justice.

On July 28, 1959, Marie S. Seneker, a guest in an automobile driven by her minor daughter Louise, was killed when the car struck a truck at a highway intersection in this State. On July 23, 1960, her administratrix brought this action against the daughter, now Mrs. Louise Seneker Reaves, and Bewley Chevrolet Co., owner of the car, for damages for her alleged wrongful death.

The declaration alleged that the action was brought for the benefit of her surviving husband and children other than Louise; that Louise was completely emancipated by her marriage to Jack F. Reaves September 3, 1959, and by removal of her disability of minority by court decree July 6, 1960; and that she was driving the car as agent or servant and in the business of the other defendant, and negligently caused the death sued for.

Defendants filed demurrers, asserting that since Mrs. Reaves was an unemancipated minor child of decedent at the time of her alleged wrongful death, and since she, had she lived, could not have maintained this suit against such child, her administratix cannot do so; and, as an added ground, the other defendant asserted that since it was sued only for the wrong of Mrs. Reaves as its agent, the suit, not being maintainable against her, could not be maintained against it.

The Trial Judge sustained the demurrers and dismissed the action. Plaintiff appealed in error and has assigned errors, which present the question whether an action for wrongful death of a parent, caused by negligence of his unemancipated minor child, may be maintained by his administrator against such child after the child has been completely emancipated.

This is a question of first impression in this State. We think it must be answered in the affirmative; that such a result logically and necessarily follows from principles that have been settled in a number of our cases as well as in cases from other states.

The right of action in such a case is preserved by our wrongful death statute (T.C.A. §§ 20-607, 610, 611), which creates no new right, but keeps alive the right the deceased, had he not died, would have had against the wrongdoer, and passes it to his personal representative for the benefit of his next of kin. Memphis St. Ry. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444; Brown v. Selby, 206 Tenn. 71, 74, 32 S.W.2d 166.

This statute makes no exception but comprehends 'every case of wrongful killing' (Trafford v. Adams Express Co., 76 Tenn. 96, 100), which includes a case of wrongful killing of a parent by his unemancipated minor child; that is, the right he would have had against such child, had he survived, passes to his administrator for the benefit of his widow and next of kin--those named in the statute to take the recovery.

Under this statute, the right of action which Mrs. Seneker, had she not died, would have had against her minor child, Mrs. Reaves, for her wrongful killing, passed to her administratix for the benefit of her surviving husband and children other than Mrs. Reaves (Anderson v. Memphis St. Ry. Co., 143 Tenn. 216, 227 S.W. 39); and this right may now be enforced in this action, unless its enforcement is forbidden by the rule invoked by defendants.

That is the common law, or intra-family immunity, rule which has been considered in a number of our cases. McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, 102 Am.St.Rep. 787, 1 Ann.Cas. 130; Turner v. Carter, 169 Tenn. 553, 89 S.W.2d 751; Ownby v. Kleyhammer, 194 Tenn. 109, 250 S.W.2d 37; Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166; Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574.

McKelvey v.McKelvey, supra, held that an unemancipated infant could not maintain a tort action against her father and stepmother for cruel and inhuman treatment wrongfully inflicted upon her. The Court stated the reason for the rule: 'sound public policy designed to subserve the repose of families and the best interests of society,' forbid such an action (quoting Hewlett v. George, Ex'r., 68 Miss. 703, 9 So. 885, 13 L.R.A. 682).

Likewise, Turner v. Carter, supra, held that the administrator of a deceased parent could not maintain a tort action against her minor son for her wrongful death, it appearing the son 'had not been completely emancipated'; and the Court stated the reason for the rule as in the McKelvey case, quoting it from that case.

Ownby v.Kleyhammer, supra, held that a 12-year-old son could not maintain a tort action against his father for personal injuries caused by the father's negligence in driving an automobile. It does not appear that there was any claim that this 12-year-old boy had been emancipated. This case followed the McKelvey rule, which had been the basis of the holding in Graham v. Miller, 182 Tenn. 434, 187 S.W.2d 622.

In Brown v. Selby, supra, Selby and his wife had two small children and, after their divorce, he wrongfully killed her. It was held that since she was not his wife at the time of the killing, her administrator could maintain an action against him for her wrongful death, even though the damages went to his children by her. The Court expressed the view that in such a case, to hold that the action could not be maintained against the father for the benefit of the children, 'would be making a fetish' of the common law rule, forbidding tort actions between parent and child.

The Court further pointed out that this 'common law personal immunity rule' 'is based solely upon the public policy of preserving domestic peace and tranquility in the family' (citing the McKelvey case); and that since the father had destroyed this peace and tranquility, the reason ceased, and with it the rule. And the Court quoted this from a Pennsylvania case:

'It would be an unjust and harsh law which would narrow the scope of the statutory death action merely because of a rule, the reasons for which are nonexistent.' Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 666, 104 A.L.R. 1267, 1271.

In Herrell v. Haney, supra, we held that this common law rule did not apply to tort actions between unemancipated minor brothers, both living in the same family; and an action for wrongful death by the administrator of one brother against the other was sustained. We also...