Maxey v. Sauls

Decision Date11 April 1963
Docket NumberNo. 18053,18053
Citation242 S.C. 247,130 S.E.2d 570
PartiesDorothy P. MAXEY, as Administratrix of the Estate of Timothy Dean Maxey, Appellant, v. Donald Joseph SAULS, Mary Lou Stokes, as Administratrix of the Estate of James N. Stokes and J. I. Player, as Administrator of the Estate of David L. Maxey, Defendants, of which J. I. Player, as Administrator of the Estate of David L. Maxey is, Respondent.
CourtSouth Carolina Supreme Court

Murdaugh, Eltzroth & Peters, Hampton, for appellant.

Hope & Cabaniss, Charleston, for respondent.

LEWIS, Justice.

Timothy Dean Maxey, a minor four years of age, and his father, David L. Maxey, were killed when the automobile driven by the father, and in which the minor was riding as a guest passenger, collided with two other automobiles at an intersection. This action was instituted by the administratrix of the estate of the minor son against the administrator of the estate of the father, and the operators of the other vehicles, to recover damages for the wrongful death of the son, alleged to have been caused by the joint and concurrent negligent, reckless, wilful and wanton acts of the father and the operators of the other vehicles. We are concerned in this appeal only with action brought by the administratrix of the estate of the unemancipated son against the administrator of the estate of his father to recover damages for the son's wrongful death.

Upon the service of the complaint, the administrator interposed a demurrer thereto on the ground that the plaintiff's intestate was an unemancipated child of defendant's intestate, and had no cause of action against the estate of his father. The lower court sustained the demurrer and the plaintiff has appealed.

It is the settled law of South Carolina, to which we adhere, that an unemancipated child had no right of action against his parent for personal injuries caused by the parent's negligence. Kelly v. Kelly, 158 S.C. 517, u55 S.E. 888. 'The rule is founded in public policy, being based upon society's interest in the preservation of family unity and harmony and parental discipline. 39 Am.Jur., Parent and Child, Section 89.' Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280.

The plaintiff contends, however, that the foregoing rule is inapplicable to the present case and the demurrer should have been overruled because (1) the death of the parent or child removes the reason for the rule, (2) the father had liability insurance and accordingly there is no conflict of interest which would call for the application of the foregoing rule of immunity from suit, and (3) this action being based upon the alleged wilful acts of the parent, the rule does not apply.

This is an action for wrongful death and is brought under the provisions of Section 10-1951 of the 1962 Code of Laws. This section is as follows:

'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony. In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.' (Emphasis added).

While the foregoing section creates a new cause of action, Osteen v. Southern Ry., Carolina Division, 76 S.C. 368, 57 S.E. 196; In Re Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 54 L.R.A. 660; Complete Auto Transit, Inc. v. Bass, 229 S.C. 607, 93 S.E.2d 912, the right to maintain the action is based upon the condition that 'the act, neglect or default' must be 'such as would, if death had not ensued, have entitled the person injured to maintain an action and recover damage in respect thereof.' In other words, 'if the deceased never had a cause of action, none accrues under the wrongful death statute.' Scott v. Greenville Pharmacy, Inc., 212 S.C. 485, 48 S.E.2d 324, 11 A.L.R.2d 745; Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790.

It is clear, therefore, that an action could not have been maintained had plaintiff's intestate lived, under the settled principle that...

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13 cases
  • Downs v. Poulin
    • United States
    • Maine Supreme Court
    • 11 Enero 1966
    ...24 Conn.Sup. 382, 190 A.2d 922; Shaker v. Shaker, 129 Conn. 518, 29 A.2d 765; Kelly v. Kelly, 158 S.C. 517, 155 S.E. 888; Maxey v. Sauls, 242 S.C. 247, 130 S.E.2d 570; Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676; Ownby v. Kleyhammer, 1......
  • Barlow v. Iblings
    • United States
    • Iowa Supreme Court
    • 6 Febrero 1968
    ...24 Conn.Sup. 382, 190 A.2d 922; Shaker v. Shaker, 129 Conn. 518, 29 A.2d 765; Kelly v. Kelly, 158 S.C. 517, 155 S.E. 888; Maxey v. Sauls, 242 S.C. 247, 130 S.E.2d 570; Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676; Ownby v. Kleyhammer, 1......
  • Campbell v. Gruttemeyer
    • United States
    • Tennessee Supreme Court
    • 11 Octubre 1968
    ...425, 40 N.E.2d 236; Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33, 130 A.L.R. 883. See also in this connection the case of Maxey v. Sauls, 242 S.C. 247, 130 S.E.2d 570. In Reingold v. Reingold, 150 (115) N.J.L. 532, 181 A. 153, it was held that the right of action, if any, is determined as o......
  • Streenz v. Streenz, 1
    • United States
    • Arizona Court of Appeals
    • 18 Noviembre 1969
    ...Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); Castellucci v. Castellucci, 96 R.I. 34, 188 A.2d 467 (1963); Maxey v. Sauls, 242 S.C. 247, 130 S.E.2d 570 (1963); Hastings v. Hastings, 33 N.J. 247, 163 A.2d 147 (1960); Stevens v. Murphy, 69 Wash.2d 939, 421 P.2d 668 (1966); See also, A......
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