Owens v. Auto Mut. Indemnity Co.

• Decision Date: 11 November 1937
• Docket Number: 4 Div. 981
• Citation: 235 Ala. 9,177 So. 133
• Parties: OWENS v. AUTO MUT. INDEMNITY CO. et al.
• Court: Alabama Supreme Court

177 So. 133

235 Ala. 9

OWENS v. AUTO MUT. INDEMNITY CO. et al.

4 Div. 981

Supreme Court of Alabama

November 11, 1937

Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.

Action for damages by Howard Owens, as administrator of the estate of Buford Elmore, deceased, against Auto Mutual Indemnity Company and G.D. Elmore. From a judgment of nonsuit plaintiff appeals.

Affirmed.

Oscar S. Lewis and Emmet S. Thigpen, both of Dothan, for appellant.

Tompkins & Ramsey, of Dothan, for appellees.

THOMAS Justice.

The suit was by the administrator of the Elmore estate under section 5695 of the Code, and against the Auto Mutual Indemnity Company, a corporation, to recover damages for the death of his intestate.

The defendant's demurrers to the complaint were overruled. Therefore, pleas 1 to 4, inclusive, were filed as answer to counts 1 and 2, respectively, and demurrers thereto were overruled. A nonsuit was taken because of such adverse ruling of the court, and such rulings assigned as error are duly urged in argument by appellant's counsel.

It is decided by this court that where the nonsuit is taken for an adverse ruling as to special pleas, although the general issue is also pleaded, there will be a reversal of the cause if there is error in overruling the demurrer to the special pleas. The reason for this ruling is that such special pleas have neither been proven nor confessed on the record. McKinley v. National Ben. Life Ins. Co., 223 Ala. 545, 137 So 450.

The statutory bond given under the Motor Carrier Act (Gen.Acts 1932, Ex. Sess. p. 178) and the indemnity assumed and given under the permit granted followed the car and its driver in the discharge of his duties with the car or truck within the line and scope of that agency. Employers Ins. Co. v Diggs (Ala.Sup.) 175 So. 344.

The complaint alleges that defendant G.D. Elmore was operating the truck under permit granted under the statute, and that indemnity was given and extended by defendant's policy exhibited as a part of the complaint; that the death of plaintiff's intestate was proximately caused by the acts of said Elmore in the negligent operation of that truck; and count 1, charging simple negligence, concludes as follows: "*** and plaintiff avers that on said 6th of June, 1936, plaintiff's intestate, George Buford Elmore, a minor of to-wit: Seven years of age, was at his home near Dothan, Alabama, at which place the principal garage of the defendant G.D. Elmore was located, the said G.D. Elmore, while engaged in the operation of said truck under the permit issued to him by the Alabama Public Service Commission, which said truck was insured under the policy of insurance hereto attached, so negligently operated said truck as to cause the same to back over plaintiff's intestate, thereby killing him, and plaintiff avers that the death of plaintiff's intestate was proximately caused by the negligence of the said G.D. Elmore in the operation of said truck, as foresaid."

Count 2 charges a wanton act, that proximately caused the injury, and exhibits the policy of insurance.

It will be noted that the instrument contains the provision as to bodily injuries, as follows:

"1. Bodily Injuries. To pay within the limits specified in Statement 3(a) all sums which the Assured shall become liable to pay as damages (either direct or in consequence of expenses and/or loss of services) imposed upon him by law for bodily injury, including death resulting at any time therefrom, suffered or alleged to have been suffered by any person or persons as the result of such accidents."

The several pleas, directed to respective counts of the complaint, invoke the common-law rule of disability of a minor to sue the parent for personal injuries inflicted upon him by a parent.

The reason for the rule of the common law is stated to be that the parents' immunity from such suit is to prevent family discord that may arise in a minor's suit for tort. It is declared that such immunity arises from a disability to sue, and not from the lack of a violated duty. The question recurs: Is this disability absolute? Has the liability of this parent been shifted to the defendant company by virtue of the provisions of the statute?

It is declared in Lloyd Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055, that the "disability of a child to sue the parent for an injury negligently inflicted by the latter upon the former while a minor is not absolute, but is imposed for the protection of family control and harmony, and exists only where the suit, or the prospect of a suit, might disturb the family relations." 20 R.C.L. 631; notes in 71 A.L.R. 1071; 72 A.L.R. 453; 31 A.L.R. 1157, 1161; and 52 A.L.R. 1123. See, also, 64 A.L.R. 296 as to an unemancipated child suing parent for a simple tort. See 46 C.J. p. 1324, as to husband and wife and the right to sue for torts committed by the other. See title in 13 R.C.L. pp. 1396-1397, and authorities.

The relations of husband and wife and parent and child have been treated together as the relationships impose similar duties, liabilities, restrictions, and as affecting the social compact. That is to say, for illustration of the point under consideration, the relations are analogous. And at common law there was no liability on the part of a husband for a tort committed on the person of the wife, just as there was no liability in actions of tort on a parent for personal injuries suffered by an unemancipated minor child, due to the negligence of such parent.

The right of one spouse to maintain action against the other for personal injury has been recently considered in 89 A.L.R. 118, and it is indicated that the great weight of authority is to the effect that the statutes conferring additional rights on married women, and the right to sue separately in their own names for redress of wrongs concerning their separate property and personal security conferred no right on either spouse to sue the other for personal injury, citing a long list of cases in federal and state courts, other than those obtaining in this jurisdiction. It is likewise indicated in Penton v. Penton, 223 Ala. 282, 135 So. 481; Bennett v. Bennett, 224 Ala. 335, 140 So. 378; and Dawson v. Dawson, 224 Ala. 13, 138 So. 414, that in view of the terms of the statutes involved, this court has adopted what is known as the minority rule, and upholds the right of a spouse to sue each other for personal injury.

In the case of Johnson v. Johnson, 201 Ala. 41, 77 So. 335 337, 6 A.L.R. 1031, it was held that on account of statutory changes, affecting the status of a married woman, a wife may recover against her husband for a personal assault and battery. In this decision Mr. Justice Sayre observed of the common-law rule as to husband and wife, that while much of that law has disappeared under the pressure of enlightened public opinion, "it must still be conceded that it is not for the courts by sudden strokes of policy to make the innovations upon the...