Rines v. Rines, 3953

• Decision Date: 01 May 1951
• Docket Number: No. 3953,3953
• Citation: 80 A.2d 497,97 N.H. 55
• Parties: RINES v. RINES.
• Court: New Hampshire Supreme Court

Page 497

80 A.2d 497

97 N.H. 55

RINES v. RINES.

No. 3953.

Supreme Court of New Hampshire.

May 1, 1951.

Cooper, Hall and Cooper and John M. Brant, all of Rochester (Burt Cooper, Rochester, orally), for plaintiff.

Nighswander & Lord, Laconia (Hugh H. Bownes, Laconia, orally), for defendant.

BLANDIN, Justice.

The plaintiff's first claim is that as the Maine law with reference to a parent's right to sue an unemancipated minor child is not clear New Hampshire law on that subject should be applied. On that premise she argues that under New Hampshire law the action was maintainable. Should this contention fail she says that the matter being one of remedy and not of right our law governs and her suit is sustainable. She cites no authority in support of the proposition that the matter is one of remedy and not of right nor do we know of any. The rationale of the rule forbidding actions between parent and child is that it is contrary to public policy and hence no right of action exists. 39 Am.Jur. Parent and Child, §§ 92, 90 (p. 736) where the authority says in speaking of the effect of liagility insurance in such cases that it should not create 'a cause of action where none existed before.' (Emphasis ours) Infancy is not an affirmative defense as is the statute of limitation which the plaintiff cites as analogous, where a right has existed but is barred by lapse of time and which generally must be pleaded. 54 C.J.S., Limitations of Actions, § 354; Moore v. Phoenix Fire Ins. Company, 64 N.H. 140, 142, 6 A. 27. On the contrary unemancipation is a complete barrier to the suit and the burden is on the plaintiff to show it no longer exists. 67 C.J.S., Parent and Child, § 61a(2), p. 787. We believe the matter is one of substance and if so concededly the law of Maine controls as the Trial Judge correctly charged. Restatement, Torts, § 7; Restatement, Conflict of Laws, § 378; 60 C.J.S., Motor Vehicles, § 259; 15 C.J.S., Conflict of Laws, § 12a(2). We turn therefore to Maine decisions to determine its law.

In the case of Skillin v. Skillin, 130 Me. 223, 154 A. 570, a daughter who was over twenty-one years old when the accident happened sued her father for injuries received while riding with him. In its opinion the Court said 'There is some suggestion * * * that the plaintiff could not maintain this action, because, though she was more than twenty-one years of age, she was in fact unemancipated. It is perhaps sufficient to say that this is a question for the jury and not for the court. * * *

'The right of the plaintiff to recover depends upon the ordinary rules governing liability for negligence, and on whether or not she was of age and emancipated. The fact of insurance cannot enlarge or restrict such right.' 130 Me. at pages 224, 225, 154 A. at page 570. We interpret this as meaning that the Maine law is in accord with the great weight of authority in other common law states and forbids suits between parent and child under such circumstances as are before us here. It follows the exception to the Court's charge that a parent has no right of action against an unemancipated minor is overruled.

We now come to the plaintiff's argument that the Court erred in charging the jury that the test of negligence to be applied to the defendant under the Maine law, which admittedly governs on this phase of the case, was 'the standard of the average prudent person of his age under the circumstances existing at that time.' We believe the charge was correct. In one of the late Maine cases on the subject, Ross v. Russell...