Securo v. Securo, C. C. No. 439.

• Court: Supreme Court of West Virginia
• Writing for the Court: MAXWELL
• Citation: 156 S.E. 750
• Parties: SECURO. v. SECURO.
• Docket Number: C. C. No. 439.
• Decision Date: 20 January 1931

156 S.E. 750

SECURO.
v.
SECURO.

C. C. No. 439.

Supreme Court of Appeals of West Virginia.

Jan. 20, 1931.

Syllabus by the Court.

An unemancipated infant may not maintain against his parent an action for damages for personal injury caused by the parent's negligence in driving his automobile wherein the child was a passenger.

Certified from Circuit Court, Marion County.

Action by Mary Securo, an infant, against Tony Securo. The circuit court overruled a demurrer to the declaration and certified the question of the sufficiency of the declaration.

Reversed and rendered.

J. W. Powell, of Fairmont, for plaintiff.

Eddy & Kennedy, of Fairmont, for defendant.

MAXWELL, J.

The plaintiff, an unemancipated girl of sixteen, residing with her father, the defendant, was injured in an automobile accident while a passenger in her father's automobile, driven by him. She sues him for damages. The circuit court overruled the defendant's demurrer to the declaration and has certified to us the question of the sufficiency of the declaration particularly on the point as to whether the plaintiff may maintain this action against her father.

In many of the states the courts have recognized and followed the rule that an unemancipated infant may not maintain an action of tort against his parent. Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L. R. A. 682; Elias v. Collins, 237 Mich. 175, 211 N. W. 88, 52 A. L. R. 1118, and annotation; Wick v. Wick, 192 Wis. 260, 212 N. W. 787, 52 A. L. R. 1113; Small v. Morrison, 1S5 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135, and annotation; Matarese v. Matarese, 47 R. I. 131, 131 A. 198, 42 A. L. R. 1360; Ciani v. Ciani, 127 Misc. Rep. 304, 215 N. T. S. 767; Taubert v. Taubert, 103 Minn. 247, 114 N. W. 763; McKelvey v. McKelvey, 111 Tenn. 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130; Smith v. Smith, 81 Ind. App. 566, 142 N. E. 128: Roller v. Roller, 37 Wash. 242. 79 P. 788, 68 L. R. A. 893, 107 Am. St. Rep. 805, 3 Ann. Cas. 1. (In the last case a girl was denied

[156 S.E. 751]

the right to maintain an action against her father for damages, though the wrong complained of was rape.) See texts also: 20 Ruling Case Law, p. 631; 46 Corpus Juris, p. 1324; Schouler, Domestic Relations (6th Ed.) vol. 1, p. 717; Cooley on Torts (3d Ed.) vol. 1, p. 200.

The basis of this rule, as appears from the cases and texts, lies in the very vital interest which society has in preserving harmony in domestic relations, and in not permitting...