Smith v. Smith

• Decision Date: 16 January 1924
• Docket Number: No. 11744.,11744.
• Citation: 142 N.E. 128,81 Ind.App. 566
• Parties: SMITH v. SMITH.
• Court: Indiana Appellate Court

81 Ind.App. 566

142 N.E. 128

SMITH

v.SMITH.

No. 11744.^*

Appellate Court of Indiana, Division No. 1.

Jan. 16, 1924.

Appeal from Circuit Court, Boone County; F. E. Hutchinson, Judge.

Action by Otis P. Smith against Ambrose E. Smith. Judgment for defendant, and plaintiff appeals. Affirmed.

G. R. Estabrook, of Indianapolis, for appellant.

Ira M. Sharp, of Thornton, for appellee.

BATMAN, J.

This is an action by appellant against appellee, a son against a father, to recover damages alleged to have been sustained by the former as the result of the wrongful acts of the latter. The complaint is in two paragraphs. The first is based on acts of personal violence, inflicted during appellant's minority, while he was a member of appellee's family, which are alleged to have been continued over a period of years, and to have been “cruel, inhuman, excessive, unreasonable, unwarranted, and malicious.” The second is based upon the failure, neglect, and refusal of appellee, without any excuse whatsoever, to send appellant to school, or otherwise provide for his education during the years of his minority, while a member of the former's family, thereby violating the laws of this state, and unlawfully depriving him of an education, from which he has sustained damages. Each paragraph of the complaint shows that this action was commenced after appellant has reached the age of 21 years, and had ceased to be a member of appellee's family, but before he had reached the age of 23. Demurrers for want of sufficient facts were filed to each paragraph of the complaint, which were sustained, and, appellant refusing to plead further, judgment was rendered against him. The actions of the court in sustaining said demurrers constitute the only errors properly assigned on appeal.

[1] An examination of the briefs in this case discloses that the determination of a single question will be decisive of this appeal. It may be stated thus: May a child maintain an action against its father for damages, arising out of tortious acts of such parent, which occur during such child's minority, while it is unemancipated and a member of the parent's family? The common law gives the child no such right of action. The reasons for denying such redress have been summarized in a standard legal treatise 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.” 20 R. C. L. 631.

The following decisions fully support the text quoted: McKelvey v. McKelvey, 111 Tenn. 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130;Roller v. Roller, 37 Wash. 242, 79 Pac. 788, 68 L. R. A. 893, 107 Am. St. Rep. 805, 3 Ann. Cas. 1;Foley v. Foley, 61 Ill. App. 577;Hewlett v. George, 68 Miss. 703, 9 South. 885, 13 L. R. A. 682;Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135.

[2] As said in a note to the second case cited, the absence of a more extended list of decisions would indicate that the rule stated has been so generally recognized that courts have seldom been called upon to give it application. The rules of the common law, having been adopted in this state, are binding upon its courts, as has often been declared, except as limited by treaties, Constitutions, and statutes. Sopher v. State (1907) 169 Ind. 177, 81 N. E. 913, 14 L. R. A. (N. S.) 172, 14 Ann. Cas. 27;Atkinson v. Disher (1912) 177 Ind. 665, 98 N. E. 807;State ex rel. v. Ellis (1915) 184 Ind. 307, 112 N. E. 98.

[3] No limitation on the rule stated from any of these sources is cited, and we assume there is none. Certainly no statute has ever been enacted in this state conferring such a right of action. But, if it be contended that the reasons for the rule which denies such right never existed in this state, or at least that they do not now prevail, and hence the rule itself does not exist, by reason of the familiar maxim in that regard, we would be compelled to withhold our concurrence. See Ketelsen v. Stilz (1915) 184 Ind. 702, 111 N. E. 423, L. R. A. 1918D, 303, Ann. Cas. 1918A, 965, where the court discusses the effect of an absence of the reasons on which the common-law rule is based. The Supreme Court of this state has never declared that...