Securo v. Securo, (No. C.C. 439)

• Court: Supreme Court of West Virginia
• Writing for the Court: MAXWELL, J.
• Citation: 110 W.Va. 1
• Parties: Mary Securo, Infant, etc., v. Tony Securo
• Decision Date: 20 January 1931
• Docket Number: (No. C.C. 439)

110 W.Va. 1

Mary Securo, Infant, etc.,
v.
Tony Securo

(No. C.C. 439)

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1931.
Decided January 20, 1931.

[110 W.Va. 1]

Parent and Child

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, for plaintiff.

Eddy & Kennedy, for defendant.

Maxwell, Judge:

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

[110 W.Va. 2]

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 parents. Hewellette v. George, (Miss.) 9 So. 885; Elias v. Collins, (Mich.) 211 N. W. 88, 52 A. L. R. 1118 and annotation; Wick v. Wick, (Wis.) 212 N. W. 787; Small v. Morrison, (N. C.) 118 S. E. 12, 31 A. L. R. 1135 and annotation; Matarese v. Matarese, (R. I.) 131 Atl. 198; Ciani v. Ciani, 215 N. Y. S. 767; Tambert v. Taubert, (Minn.) 114 N. W. 763; McKelvey v. McKelvey, (Tenn.) 77 S. W. 664; Smith v. Smith, (Ind.) 142 N. E. 128; Boiler v. Roller, (Wash.) 79 P. 788. (In the last case a girl was denied 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, page 631; 46 Corpus Juris, page 1324; Schouler, Domestic Relations, (6th Ed.) Vol. I, page 717; Cooley on Torts (3rd Ed.) Vol. I, page 299.

The basis of this rule, as appears from the cases and texts, lies in the very vital interest which society has in...