Norfolk Southern R. Co v. Gretakis

• Decision Date: 14 June 1934
• Citation: 174 S.E. 841
• Parties: NORFOLK SOUTHERN R. CO. v. GRETAKIS.
• Court: Virginia Supreme Court

174 S.E. 841

NORFOLK SOUTHERN R. CO.

v.GRETAKIS.

Supreme Court of Appeals of Virginia

June 14, 1934.

.

Appeal from Law and Chancery Court of City of Norfolk.

Bill by the Norfolk Southern Railroad Company against Manuel Gretakis. From a decree dismissing the bill, plaintiff appeals.

Affirmed.

Argued before CAMPBELL, C. J., and EPES, HUDGINS, GREGORY, and BROWNING, JJ.

James G. Martin, of Norfolk, for appellant Williams, Loyall & Taylor, of Norfolk, for appellee.

EPES, Justice.

The Norfolk Southern Railroad Company filed its bill in chancery against Manuel Gretakis, in which it makes the following allegations:

Gretakis was driving his automobile when it came into collision with an electric car of the Norfolk Southern Railroad Company at a grade crossing in Princess Anne county. The collision was caused by the concurring negligence, without moral turpitude, of both parties. Gretakis was "guilty of the greatest negligence in causing said collision, to wit 90% of the total negligence being chargeable against" him. As a result of the collision Gretakis' infant daughter, who was riding in his automobile with him, was injured. She, suing by her father as her next friend, brought her action against the Norfolk Southern Railroad Company to recover for the personal injuries she received, and recovered a judgment against it for $1,500, with interest and costs, all of which it has paid. "Gretakis is fully covered by liability insurance by a solvent insurance company against all liability for such accidents as occurred in this case, * * * and any judgment or decree herein will be paid by that company, which will save Manuel Gretakis entirely harmless."

While the bill does not in terms allege that Gretakis was guilty of gross negligence for which he would have been liable to a guest (see Boggs v. Plybon, 157 Va. 30, 160 S. E. 77, and Thomas v. Snow (Va., June, 1934) 174 S. E. 837), we treat it as so alleging.

The prayer of the bill is: "That Manuel Gretakis may be * * * compelled to contribute and to pay it [the Norfolk Southern Railroad Company] nine-tenths of the amount which it has had to pay for said judgment, or such part thereof as under the facts and the law it is proper that he should contribute."

The bill is filed under section 5779, Code Va. 1919, which reads as follows:

"See. 5779. When contribution among wrongdoers enforced.--Contribution^ among wrongdoers may be enforced where the wrong ia a mere act of negligence, and involves no moral turpitude."

[I] Gretakis demurred to the bill on the following grounds:

"(1) The bill shows on its face that the complainant is seeking contribution for money paid to his infant daughter. That an infant daughter cannot sue her parent and there can be no contribution.

"(2) That there was no common liability on the Norfolk Southern Railroad Company, and Manuel Gretakis to Mary Gretakis.

"(3) The bill does not allege any equitable jurisdiction, there being an adequate remedy at law.

"(4) There is no jurisdiction in equity to enforce section 5779, Code of Virginia.

"(5) That even in a case where contribution is proper, under section.5779, Code of Virginia, the complainant is only entitled to recover one-half of the amount paid."

The court sustained the demurrer, and, there being no request for leave to amend, dismissed the bill. From this decree Norfolk Southern Railroad Company has appealed.

In the view which we take of this case we deem it unnecessary to, and do not, pass upon any of the questions raised by the demurrer, except those raised in ground No. 1. The court was correct in sustaining the demurrer on this ground.

According to the great weight of authority an unemancipated minor child cannot sue his or her parent to recover for personal injuries resulting from an ordinary act of negligence. 20 R. C. Li. 36; 31 A. L. R. 1157, note; 42 A. L. R. 1363, note; 52 A. L. R. 1123, note; 71 A. L. R. 1071, note; and cases cited in Schneider v. Schneider, 100 Md. 18, 152 A. 498, 72 A. L. R. 449.

Section 5779, Code Va. 1919, gives a right of contribution only where the person injured has a right of aetion against two persons for the same indivisible injury. Though the concurring negligence of two persons may have...