Turner v. Carter

Decision Date11 January 1936
Citation89 S.W.2d 751
PartiesTURNER v. CARTER.
CourtTennessee Supreme Court

Auvergne Williams, of Memphis, for plaintiff in error.

Grover McCormick, of Memphis, for defendant in error.

DE HAVEN, Justice.

The defendant, Ray E. Carter, was, on June 15, 1930, a minor eighteen years of age. He was the son of Marcus Carter and Mrs. Virgie Carter, deceased, and was at the time living in the home of his mother and father, unmarried, and all his life had so resided.

On June 18, 1930, the mother and son drove to some point in Mississippi, to visit Mrs. Carter's daughter, Ray's sister. Returning to Memphis, the automobile in which they were riding, driven by the minor son, ran off the gravel highway, and Mrs. Carter was injured and died as the result thereof. Mr. Carter, the father of defendant, was at the time working in Detroit, Mich.

On June 1, 1931, a suit was brought by the representative of Mrs. Carter's estate against her minor son, Ray E. Carter, based upon negligence. No allegation was made in the original declaration with respect to emancipation of this minor. A demurrer was filed, alleging that in Tennessee a parent cannot sue a minor child for tort. This demurrer was sustained and ten days allowed the plaintiff within which to amend. An amended declaration was filed adding a new count, in which it was alleged that defendant was wholly and completely emancipated by his parents and had been so emancipated prior to the date of the death of his mother. This suit came on for trial and plaintiff took a voluntary nonsuit. The suit was refiled on October 10, 1932, based upon the same declaration that was filed in the original suit. It came on for trial and, on the completion of plaintiff's evidence, the court granted a motion for peremptory instructions to the jury to find for the defendant. A judgment was accordingly entered for the defendant. Upon the overruling of the motion for a new trial, plaintiff perfected an appeal to the Court of Appeals and that court affirmed the judgment of the trial court. The case is now before this court upon plaintiff's petition for certiorari.

The two assignments of error made here are, in substance: (1) That the Court of Appeals erred in holding that an emancipated minor is not liable in damages for a tort committed upon his parent; and (2) that the Court of Appeals erred in affirming the trial court's action in granting defendant's motion for peremptory instructions to the jury, on the ground that there was no material evidence in the record tending to prove the complete emancipation of the defendant.

The Court of Appeals reviewed at length the evidence in the case and reached the conclusion that the minor defendant had not been completely emancipated by his parents at the time of the accident in question. We are in accord with the finding of the Court of Appeals in this respect. At most, the record discloses a case of partial emancipation.

We do not have in our reports any case where a parent sued a minor child for damages based upon negligence. However, we think the principle which controls a disposition of this question is to be found in McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, 102 Am.St.Rep 787, 1 Ann.Cas. 130, where the question under consideration was whether a minor child had a court remedy against his father for personal injuries. In denying a remedy in such case, the court quoted with approval from the case of Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, as follows:

"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...

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13 cases
  • Downs v. Poulin
    • United States
    • Maine Supreme Court
    • January 11, 1966
    ...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 472, 215 N.Y.S.2d 35, 174 N.E.2d 718; Pullen......
  • Barlow v. Iblings
    • United States
    • Iowa Supreme Court
    • February 6, 1968
    ...F.2d 677; Schneider v. Schneider, 160 Md. 18, 152 A. 498, 72 A.L.R. 449; Roller v. Roller, supra; Smith v. Smith, supra; 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 472, 215 N.Y.S.2d 35, 174 N.E.2d 718; Small v......
  • McKinney v. McKinney
    • United States
    • Wyoming Supreme Court
    • April 5, 1943
    ... ... L. R. 449; Elias v. Collins, 237 ... Mich. 175, 211 N.W. 88; 52 A. L. R. 1118; Lund v ... Olson, 183 Minn. 515, 237 N.W. 188; Turner v ... Carter, 169 Tenn. 553, 89 S.W.2d 751; Norfolk ... Southern Ry. Co. v. Gretakis, 162 Va. 597, 600, 174 S.E ... 841; but see Worrell v ... ...
  • Luster v. Luster
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 1, 1938
    ...498, 72 A.L.R. 449;Cafaro v. Cafaro, 1937, 118 N.J.L. 123, 191 A. 472;Crosby v. Crosby, 230 App.Div. 651, 246 N.Y.S. 384;Turner v. Carter, 169 Tenn. 553, 89 S.W.2d 751. Although the relation of husband and wife at common law does not furnish a perfect analogy to that of parent and minor chi......
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