Myrtle Lusk v. Ed Lusk et at.

Citation113 W.Va. 17
Decision Date25 October 1932
Docket Number(No. 7319)
CourtSupreme Court of West Virginia
PartiesMyrtle Lusk v. Ed Lusk et at.

Parent and Child

The rule of parental immunity from an injury to a child will not be extended to a case in which the reason for the rule fails. The syllabus in Securo v. Securo, 110 W. Va. 1, 156 S. E. 750, approved and distinguished.

Error to Circuit Court, Mercer County.

Action by Myrtle Lusk against Ed Lusk and another. Judgment for defendants, and plaintiff brings error.

Reversed; new trial awarded.

Wm. Cody Fletcher and II. E. De Jarnette, for plaintiff in error.

French, Easley, Easley & French, for defendants in error.

Hatcher, President:

This is an action in assumpsit by a school girl, sixteen years of age, to recover damages for personal injuries which she suffered from the alleged negligent operation of a school bus. She would reverse here a directed verdict for defendants below.

The plaintiff is an unemancipated minor residing with her father, the defendant Ed Lusk. He owned the bus and operated it under a contract with the defendant board of edu- cation to transport the school children along a certain route to and from school. The contract bound him to furnish a "safe conveyance", keep it in "good repair", and "use the greatest care and precaution for the protection and comfort of the pupils transported." He and the board carried an indemnity insurance policy with the defendant Guaranty Company, which insured them against loss and/or expense arising from claims for damages of "any person", except their employees, for bodily injuries, etc., in consequence of an accident attributable to the operation of the bus. The policy contained the usual direct public liability clause in the form prescribed by the state road commission. For copy of the form, see Criss v. Guaranty Co., 105 W. Va 380. 381-2. 142 S. E. 849. Plaintiff was on the bus (front seat) going to school when a rubber water connection on the bus engine burst and permitted the escape of a quantity of steam and hot water, some of which fell on her. This frightened her and she leaped from the bus, breaking her ankle. The original hose water connection had worn out and had been replaced by a section of an old inner tube, and its use is charged as negligence. A dealer in automobile parts stated that the hose is strengthened by cotton fabric, and was of opinion that use of the tube in place of the hose was not safe and was not "in keeping with ordinary practice and prudence". Ed Lusk, called as a witness for plaintiff, said that a regular hose connection would burst too, and from his experience with both hose and inner tube, was of opinion that the tube was as serviceable and as safe as the hose. (This testimony was brought out on the crossexamination of Lusk and for that reason would not preclude the plaintiff.)

Plaintiff's counsel realize that she has no right of action against the board of education under Boice v. Board (W. Va.), 160 S. E. 566; and concede that the demurrer of the board to the declaration, should have been sustained. They recognize that Securo v. Securo, 110 W. Va. 1, 156 S. E. 750, opposes a recovery from a father. But they would differentiate this case on the theory that she was a passenger for hire on the bus, and that in its operation her father was a public carrier and as such caused her injury. We are not impressed with the idea that the ills accredited to such actions may be obviated merely by suing the parent in his business capacity. Nice vocational distinctions would mean nothing to the child or the parent. To both, the defendant would be essentially the parent and it would be against him (as such) the child would be publicly arrayed. But a different situation arises I where the parent is protected by insurance in his vocational capacity. The rule followed in the Securo case concedes the commission of a civil wrong on the child by the parent, but palliates the wrong (in case of passive negligence) in the interest of parental discipline and control and of domestic harmony. A wise provision when so confined and where pertinent to the case. McCurdy, 43 Harv. L. R. 1079. sec. 5. But as was said in the case of Dunlap v. Dunlap (N. H.), 71 A. L. R., 1055," The law does not make fetishes of ideas", and we must...

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  • Downs v. Poulin
    • United States
    • Maine Supreme Court
    • 11 Enero 1966
    ...642, 251 P.2d 149; Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743; Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525; Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538. The agreed statement of facts is silent as to insurance, and whether there was insurance, in fact, is not material. Insurance was m......
  • Gibson v. Gibson
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    ...capacity (Signs v. Signs (1952) 156 Ohio St. 566, 103 N.E.2d 743; Borst v. Borst (1952) 41 Wash.2d 642, 251 P.2d 149; Lusk v. Lusk (1932) 113 W.Va. 17, 166 S.E. 538; Dunlap v. Dunlap, Supra, 84 N.H. 352, 150 A. 905); and against the parent's employer under Respondeat superior for the tort o......
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    ...743 (1952); Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952); Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939); Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538 (1932); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930). Where the child is injured by the negligence of the parent while the paren......
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