Samborski v. Beck et al.

• Court: Pennsylvania District and County Court
• Writing for the Court: Flood, J.
• Citation: 41D.&C.387
• Docket Number: March term, 1940, no. 1243.
• Decision Date: 04 April 1941
• Parties: Samborski v. Beck et al.

Page 387

41 D.&C. 387

Samborski v. Beck et al.

March term, 1940, no. 1243.

The Judicial Districts of Pennsylvania.

April 4, 1941.

Minors — Personal injuries — Maintenance of action against parent — Person standing in loco parentis — Sufficiency of evidence of relationship.

1. An unemancipated minor may not maintain an action against either his parent or one standing in loco parentis to him, to recover for personal injuries caused by the latter's negligence.

2. A person in loco parentis to a child is one who has put himself in the situation of a lawful father by assuming the obligations incident to the parental relation.

3. While evidence that a child lived for about 2 1/2 years with a man with whom her mother had a meretricious relationship, that the man supported the child even when the mother was working and was called "father" by her, that when there was a separation the child continued to see the man almost daily and received clothes and money from him, and that there was subsequently a reconciliation and resumption of the common home, might support a finding by a jury that the man stood in loco parentis to the child, it does not require the court to find that the relationship existed as a matter of law and to reverse a finding of a jury to the contrary.

Motion for judgment n.o.v. C.P. No. 5 of Philadelphia County.

Freedman & Goldstein, for plaintiff.

Arthur M. Cooper and S.C. Grossman, for defendants.

FLOOD, J., April 4, 1941.

This matter is raised on defendant Demenescu's motions for judgment n.o.v. or new trial after the jury had returned its verdict for plaintiff.

Plaintiff, a minor, was injured seriously as the result of a fall from the rear porch of a third-floor apartment occupied exclusively by Demenescu, the fall being caused by the state of disrepair of the wooden floor boards and railings. Thereafter, an action in trespass was brought by the child, through her next friend, the guardian of her estate appointed by the orphans' court. At the trial a nonsuit was granted as to the landlord-defendants, Regina and Bennie Beck. Defendant Demenescu's motion for a nonsuit on the ground that he stood in loco parentis to the minor plaintiff was denied, this issue later being submitted to the jury.

Defendant's brief raises but a single question for our consideration, namely, whether the evidence in this case requires judgment to be entered in his favor non obstante veredicto on the ground that it establishes as a matter of law that he stood in loco parentis to the child. All other issues having been expressly abandoned, our discussion will be confined to this problem.

1. Although our Supreme Court has never directly passed on this point (Minkin et al. v. Minkin, 336 Pa. 49 (1939)), the cases are practically unanimous that an unemancipated minor may not maintain an action against his parent to recover for personal injuries caused by the latter's negligence: Duffy v. Duffy, 117 Pa. Superior Ct. 500 (1935); Materese v. Materese, 47 R.I. 131 (1925); Wick v. Wick, 192 Wis. 260 (1927); Kelly v. Kelly, 158 S.C. 517 (1930); Reingold v. Reingold, 115 N.J.L. 532 (1935); Turner v. Carter, 169 Tenn. 553 (1936); Luster v. Luster, 299 Mass. 480 (1936); Rambo v. Rambo, 195 Ark. 832 (1938); Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33 (1940); Diggan v. York-Buffalo Motor Express, Inc., 31 D. & C. 560 (C.P. Northumberland Co., 1938); Morris et al. v. McKinley et al., 33 D. & C. 696 (C.P. Beaver Co., 1938).^* Recognizing the rule to be without foundation in the common law, nevertheless, our courts have barred such actions on the theory that they are disruptive of the family peace, destructive of the enforcement of filial discipline and, therefore, against public policy. See Briggs et al. v. City of Philadelphia et al., 112 Pa. Superior Ct. 50 (1934).

2. "Where one stands in loco parentis to another, the rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child": Young v. Hipple, 273 Pa. 439 (1922). Accordingly, where the case has arisen, the same rule of nonliability has been applied in actions by unemancipated minors against persons standing in loco parentis to them: Trudell v. Leatherby et al., 212 Calif. 678 (1931); Cook v. Cook, 232 Mo. App. 994, 997 (1939).

"The proper definition of a person in loco parentis to a child, is a person who means to put himself in the situation of a lawful father of the child with reference to the father's office and duty of making provision for the child": Robinson's Estate, 35 Pa. Superior Ct. 192, 195 (1908); Renovich v. Bethlehem Mines Corp., 131 Pa. Superior Ct. 351, 354 (1938). He is a person "who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption. . . . The assumption of the relation is a question of intention, which may be shown by the acts and declarations of the person alleged to stand in that relation": Bennett's Estate, 30 D. & C. 148, 151 (O.C. Northampton Co., 1937); Lando v. Philadelphia & Reading C. & I. Co., 1 D. & C. 22, 25 (C.P. Northumberland Co., 1921). Similarly, see Von der Horst et al. v. Von der Horst et al., 88 Md. 127, 130 (1898), Mott, etc., v. Iossa et al., 119 N.J. Eq. 185, 188 (1935), and Trudell v. Leatherby, supra, at p. 682.

In the present case, the testimony on this issue was as follows: According to Josephine Samborski, mother of the minor plaintiff, called on her behalf, she and the child came to live with Demenescu on March 13, 1937. She then was separated from her husband and received no support from him. She was unemployed and without any means of support. Demenescu took it upon himself to provide for them. He supported the child, providing her with food, shelter, and clothing, spending money on her and paying her medical expenses when she...