Taubert v. Taubert

CourtSupreme Court of Minnesota (US)
Writing for the CourtSTART
Citation114 N.W. 763,103 Minn. 247
Decision Date31 January 1908
PartiesTAUBERT v. TAUBERT.

103 Minn. 247
114 N.W. 763

TAUBERT
v.
TAUBERT.

Supreme Court of Minnesota.

Jan. 31, 1908.


Appeal from District Court, Hennepin County; John Day Smith, Judge.

Action by William Taubert, by George Leonard, his guardian an litem, against Margaretha Taubert. Verdict for plaintiff. From an order denying motion for judgment notwithstanding the verdict or a new trial, defendant appeals. Reversed.

Lewis, J., dissenting in part.


Syllabus by the Court

In this a personal injury action by a minor against his mother and surviving parent it is held, as a general rule a minor cannot sue his parent for a tort; but, if he has been emancipated, he can. A mere waiver, however, of the right to the earnings of a minor, does not alone constitute such emancipation; for there must be a surrender of the right to his services and to the control of his person.

The issues as to the plaintiff's emancipation and as to the defendant's alleged negligence were questions of fact under the evidence.

It is error for a trial court in its instructions to the jury to single out and isolate the testimony of a designated witness and lay particular stress upon it in cases where the evidence is contradictory. Each party to an action is entitled to have all the evidence relevant to the issues fairly considered by the jury.

An instruction in this case, to the effect that if the jury believed the plaintiff's testimony he would be entitled to recover, although every other witness in the case had lied, was reversible error.


[114 N.W. 764]

Cohen, Atwater & Shaw, for appellant.

Larrabee & Davies, for respondent.


START, C. J.

This is an action brought by a young man 17 years old, by his guardian, against his mother, to recover damages for personal injuries which he claims to have sustained while in her employ by reason of her negligence. Verdict for the plaintiff for $5,000. The defendant appeals from an order of the district court of the county of Hennepin denying her motion for judgment notwithstanding the verdict or for a new trial. The record discloses the fact that the action was defended by an indemnity company, which had issued its policy to the defendant. The assignments of error raise two general questions: (a) Was the defendant entitled to a directed verdict in her favor? (b) If not, was she entitled to a new trial for errors in the instructions of the trial court to the jury?

1. It is claimed on behalf of the defendant that upon the undisputed evidence she was entitled to a verdict in her favor; hence it was error to refuse such an instruction, and that the motion for judgment notwithstanding the verdict should have been granted. The undisputed evidence shows that the defendant is a widow and the mother of the plaintiff, a minor, whose father is dead; that at the time of the plaintiff's injury, and for some time prior thereto, she was and had been carrying on a tanning and fur-dyeing business, as the administratrix of the estate of her deceased husband, in the city of Minneapolis; that another son, Paul Taubert, 28 years old, was at all times herein stated the superintendent and manager of such business, and of the factory wherein it was carried on, for his mother; that the plaintiff was en employé of the defendant and worked in such factory; and, further, that on February 2, 1907, while he was attempting, pursuant to the direction of his brother, the superintendent, to tighten a screw which sustained a shaft in the factory, the engine which propelled the shaft was started, and he was caught in the revolving shaft and thrown against the ceiling, whereby he lost his left arm and both of his legs were broken. This action was brought to recover damages sustained by the plaintiff on account of his injuries, on the...

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68 practice notes
  • Downs v. Poulin
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 11, 1966
    ...152 A. 498; Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893; Smith v. Smith, 81 Ind.App. 566, 142 N.E. 128; Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763; Turner v. Carter, 169 Tenn. 553, 89 S.W.2d 751; Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892; Badigan v. Badigan, 9 N.Y.2d ......
  • Gibson v. Gibson
    • United States
    • United States State Supreme Court (California)
    • January 25, 1971
    ...237 Mich. 175; Matarese v. Matarese (1925) 47 R.I. 131; Small v. Morrison, Supra, 185 N.C. 577, 118 S.E. 12; Taubert v. Taubert (1908) 103 Minn. 247, 114 N.W. Trudell v. Leatherby, Supra, 212 Cal. 678, 300 P. 7, decided in 1931, involved an action by a minor plaintiff for damages for person......
  • Hebel v. Hebel, No. 839
    • United States
    • Supreme Court of Alaska (US)
    • December 8, 1967
    ...Groh v. W. O. Krahn, Inc., 223 Wis. 662, 271 N.W. 374 (1937); Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708 (1932); Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763 (1908). 21 1 Harper & James, Law of Torts § 8.11, at 647 (1956). 22 Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166 (1960); Mahnk......
  • Falco v. Pados
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 12, 1971
    ...(1929); Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551 (1928); Wick v. Wick, 192 Wis. 260, 212 N.W. 787 (1927); Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763 5 Glover v. Glover, 44 Tenn.App. 712, 319 S.W.2d 238 (1958); Wood v. Wood, 135 Conn. 280, 63 A.2d 586 (1948); Bulloch v. Bull......
  • Request a trial to view additional results
68 cases
  • Downs v. Poulin
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 11, 1966
    ...152 A. 498; Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893; Smith v. Smith, 81 Ind.App. 566, 142 N.E. 128; Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763; Turner v. Carter, 169 Tenn. 553, 89 S.W.2d 751; Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892; Badigan v. Badigan, 9 N.Y.2d ......
  • Gibson v. Gibson
    • United States
    • United States State Supreme Court (California)
    • January 25, 1971
    ...237 Mich. 175; Matarese v. Matarese (1925) 47 R.I. 131; Small v. Morrison, Supra, 185 N.C. 577, 118 S.E. 12; Taubert v. Taubert (1908) 103 Minn. 247, 114 N.W. Trudell v. Leatherby, Supra, 212 Cal. 678, 300 P. 7, decided in 1931, involved an action by a minor plaintiff for damages for person......
  • Hebel v. Hebel, No. 839
    • United States
    • Supreme Court of Alaska (US)
    • December 8, 1967
    ...Groh v. W. O. Krahn, Inc., 223 Wis. 662, 271 N.W. 374 (1937); Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708 (1932); Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763 (1908). 21 1 Harper & James, Law of Torts § 8.11, at 647 (1956). 22 Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166 (1960); Mahnk......
  • Falco v. Pados
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 12, 1971
    ...(1929); Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551 (1928); Wick v. Wick, 192 Wis. 260, 212 N.W. 787 (1927); Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763 5 Glover v. Glover, 44 Tenn.App. 712, 319 S.W.2d 238 (1958); Wood v. Wood, 135 Conn. 280, 63 A.2d 586 (1948); Bulloch v. Bull......
  • Request a trial to view additional results

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