Small v. Morrison

• Decision Date: 08 June 1923
• Docket Number: (No. 441.)
• Court: North Carolina Supreme Court
• Parties: SMALL. v. MORRISON et al.

118 S.E. 12

SMALL.

v.MORRISON et al.

(No. 441.)

Supreme Court of North Carolina.

June 8, 1923.

Clark, C. J., dissenting.

Appeal from Superior Court, Gaston County; Long, Judge.

Action by Mildred Small, by her next friend, W. L Balthis, against John R. Morrison and others. From judgment sustaining demurrers to the complaint, plaintiff appeals. Affirmed.

Civil action on behalf of the infant plaintiff, brought by her next friend, to recover damages of her father, J. C. Small, the Globe Indemnity Company, and John R. Morrison for an alleged negligent injury caused by the collision of two automobiles, one driven by plaintiff's father and the other by John R. Morrison. The defendants J. O. Small and the Globe Indemnity Company, each demurred to the complaint. Demurrers sustained, and the plaintiff appealed. The defendant John R. Morrison filed answer denying liability and does not appeal, as the ease against him has not yet been tried.

Mangum & Denny, of Gastonia, for appellant.

Clarkson, Taliaferro & Clarkson, of Charlotte, for appellee Small.

C. W. Tillett, Jr., of Charlotte, for appellee Globe Indemnity Co.

STACY, J. Mildred Small, nine year old daughter of J. C. Small, brings this action against her father, the Globe Indemnity Company, and John R. Morrison to recover damages for an alleged negligent injury caused by the collision of two automobiles, one owned and driven by the defendant J. C. Small, with whom plaintiff was riding at the time, and the other owned and driven by the defendant John R. Morrison. It is alleged that plaintiff's injuries were caused by the negligence of each or both of the individual defendants. The Globe Indemnity Company is joined as a party defendant because it is alleged that J. C. Small, plaintiff's father, carried a policy of liability insurance with said company, wherein it agreed "to indemnify the assured against loss from the liability imposed by law upon the assured for damages, as a result of the ownership, maintenance or use of any of the said automobiles"; with a provision that the total liability of the company under the policy should not exceed $5,000 for injury to any one person.

J. C. Small and the Globe Indemnity Company demur to the complaint for the following reasons: (1) Because plaintiff, the unemancipated minor child of defendant J. C. Small, cannot maintain this action against her father; and (2) because there is a misjoinder, both of parties defendant and of causes of action—the one sounding in tort and the other arising ex contractu, according to the allegations of the complaint Shore v. Holt, 185 N. C.——, 117 S. E. 165, and cases there cited. (3) The indemnity company further demurs because it is provided that no claim on the part of the plaintiff can arise under the policy in question until execution against the defendant J. C. Small shall have been returned unsatisfied in an action brought against him. For this position, the defendant relies upon the cases of Newton v. Seeley, 177 N. C. 528, 99 S. E. 347; Clark v. Bonsai, 157 N. C. 270, 72 S. E. 954, 48 L. R. A. (N. S.) 191; and Hensley v. Furniture Co., 164 N. C. 148, 80 S. E. 154.

The principle announced in Gorrell v. Water Supply Co., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 513, 70 Am. St. Rep. 598, Fischer v. Water Co., 128 N. C. 375, 38 S. E. 912, Jones v. Water Co., 135 N. C. 554, 47 S. E. 615, and Morton v. Water Co., 168 N. C. 582, 84 S. E. 1019, to the effect that, in certain cases, a beneficiary under a contract, though not a formal party thereto, may maintain an action for its breach, can have no application to the facts of the present record; for here, by express stipulation, the indemnitor is not to be held liable in an action at the instance of the injured party, unless and until "execution against the assured is returned unsatisfied" in an action brought against him. This, in terms, is made a condition precedent to the right of the injured party to maintain an action against the indemnity company; and where the rights of the parties are fixed by contract the law will uphold such rights. Clancy v. Overman, 18 N. C. 402: Clark v. Bonsai, supra, and cases there cited. The assured could have applied for, and no doubt obtained, a policy of insurance which would have given the instant plaintiff a right to maintain an action against the idemnity company, without first suing the assured; but this was not done, and we are not at liberty to add such a provision to the present contract. The question of liability must be determined according to the rights and duties of the parties at the time of the injury.

The right of the plaintiff to proceed against the indemnity company must of necessity rest upon her right to sue her fatherin tort; and, if this be denied, the judgment sustaining the demurrer should be affirmed. Holding, as we do, that such remedy is not available to the instant plaintiff in an action like the present, we deem it unnecessary to consider the other grounds urged in support of the demurrers.

While this position is supported by all the authorities on the subject, with none to the contrary, it is worthy of note that in the entire judicial history of this country and of England, not more than four or five cases involving the question have found their way to any of the appellate courts. This within itself would seem to be a circumstance tending to show, not only the soundness of the position, but also that it is founded in natural justice and in keeping with the eternal fitness of things; otherwise a number of cases might have been expected, some involving the most trivial and others the most serious allegations of negligence. To entertain the present suit would be to open the doors of the courts to every minor child who has suffered an injury, real or imaginary, at the hands of its parents on account of their neglect, or want of due care, in providing for or looking after its welfare. This, to say the least, would be unseemly, if not productive of great mischief.

The principal reasons assigned for denying to minor children the right to sue their parents in tort are clearly stated 20 R. C. L. 631, as follows:

"It is well established that a minor child cannot sue his parent for a tort. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. An unkind and cruel parent may and should be punished at the time of the offense, if an offender at all, by forfeiting custody and suffering criminal penalties, if need be; but for the minor child who continues, it may be for long years, at home and unemancipated, to bring a suit, when arrived at majority, free from parental control and under counter influences, against his own parent, either for services accruing during infancy or to recover damages for some stale injury, real or imagined, referable to that period, appears quite contrary to good policy. And this rule has been applied not only in cases of excessive punishment, or other assault and battery, but to the most extreme case possible, that of the ravishment of a minor daughter by her father."

Again in 29 Cyc. 1663, it is said:

"Actions by children against their parents are not to be encouraged unless to redress clear and palpable injustice, and a minor child has no right of action against a parent for the tort of the latter."

Apparently the earliest reported case in this country, involving the question under consideration, is Hewlett v. George, 68 Miss. 703, 9 South. 885, 13 L. R. A. 682 (1891). Here a minor daughter, who had been married, but who, at the time of the alleged injury, was separated and living apart from her husband, brought suit against her mother for wrongfully confining her in an insane asylum. The court, remarking that there was not sufficient evidence to show that she had not resumed her former place in her mother's home and was therefore unemancipated held as follows:

"If, by her marriage, the relation of parent and child had been finally dissolved, in so far as that relationship imposed the duty upon the parent to protect and care for and control, and the child to aid and comfort and obey, then it may be the child could successfully maintain an action against the parent for personal injuries. But, so long as the parent is under obligation to care for, guide and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand."

The next case is McKelvey v. McKelvey. 111 Tenn. 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130 (1902). This was a suit instituted by a minor against her father and stepmother, seeking to recover damages for cruel and inhuman treatment alleged to have been inflicted upon her by the stepmother at the instance and with the consent of the father. The suit was dismissed upon demurrer and the Supreme Court upheld the judgment of dismissal. The case of Hewlett v. George, supra, was approved and quoted from at length. The following is taken from the opinion:

"So far as we can discover, this rule of the common law has never been questioned in any of the courts of this country, and certainly no such action as the present has been maintained in these courts. It is true that no less celebrated an authority than Judge Cooley, in the...