Wells v. Wells

• Decision Date: 29 February 1932
• Docket Number: No. 17271.,17271.
• Citation: 48 S.W.2d 109
• Parties: WELLS v. WELLS et al.
• Court: Missouri Court of Appeals

48 S.W.2d 109

WELLS v. WELLS et al.

No. 17271.

Kansas City Court of Appeals. Missouri.

February 29, 1932.

Rehearing Denied April 4, 1932.

Appeal from Circuit Court, Adair County.

Action by Rose Wells against Russell Wells and another. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

Lyon Anderson and Leahy, Saunders & Walther, all of St. Louis, and Mills & Jayne, of Kirksville, for appellants.

Murrell & Murrell, of Kirksville, for respondent.

CAMPBELL, C.

Action to recover damages for personal injuries alleged to have been sustained as the result of the negligence of defendants. Plaintiff recovered judgment, and the defendants have appealed.

The pleaded case is that plaintiff was in an automobile operated by the defendant Russell T. Wells upon a public highway; that said automobile was owned by and was being operated under the direction of defendant A. E. Wells; that while the automobile was being operated upon said public highway, the defendant Russell T. Wells did carelessly and negligently drive and operate the same "by traveling at an excessive and reckless rate of speed, and by carelessly and negligently applying the brakes of said automobile while the same was traveling at a dangerous and excessive rate of speed," thereby causing the automobile to overturn and wreck, in consequence of which plaintiff sustained severe and permanent injuries.

Plaintiff is the mother of both defendants, one of whom, Russell T. Wells, was seventeen years of age at the time of the trial, and lived with his father and mother. The other defendant was twenty-eight years of age at the time of the trial.

It is argued that plaintiff cannot sue her minor child in tort. We are cited to decisions in other jurisdictions in which it is held that a minor cannot maintain an action to recover damages for personal injuries resulting from the negligence or intentional wrong of the parent.

It is said in the case of Wick v. Wick, 192 Wis. 260, 212 N. W. 787, 52 A. L. R. 1113, that: "No case involving this question appears to have come before any appellate court in England or America prior to 1891. In that year the Mississippi court considered the question in Hewlett v. George, 68 Miss. 703, 13 L. R. A. 682, 9 So. 885, where it was held that such an action cannot be maintained."

In the Hewlett Case the infant plaintiff sought to recover damages from her mother who had willfully and illegally caused her to be imprisoned in an insane asylum. The court held that it was against public policy to allow such an action to be maintained.

In the case of McKelvey v. McKelvey, 111 Tenn. 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130, plaintiff, an infant, brought suit alleging that defendants, her father and stepmother, had cruelly whipped her. The court followed the ruling in the Hewlett Case.

In the case of Roller v. Roller, 37 Wash. 242, 79 P. 788, 789, 68 L. R. A. 893, 107 Am. St. Rep. 805, 3 Ann. Cas. 1, it is said: "If it be once established that a child has a right to sue a parent for a tort, there is no practical line of demarkation which can be drawn, for the same principle which would allow the action in the case of a heinous crime, like the one involved in this case, would allow an action to be brought for any other tort. The principle permitting the action would be the same."

In the Roller Case the defendant had committed a felonious assault upon his fifteen year old daughter; had been prosecuted and convicted for the offense. She thereupon instituted an action to recover damages for the assault. The court, upon the authority of the Hewlett Case, held she could not maintain the action.

The only case to which we have been cited in which the parent sued her infant child in tort is the case of Schneider v. Schneider, 160 Md. 18, 152 A. 498, 72 A. L. R. 449. The court held that the action could not be maintained, citing cases to which reference has been made.

The doctrine announced in the cases cited is that an infant cannot maintain action in tort against its parent nor can parent maintain like action against his minor child for the reason that "to permit a child to maintain an action in tort against the parent is to introduce discord and contention where the laws of nature have established peace and obedience."

It has been said in this state that "an infant is liable for a tort in the same manner as an adult." Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354. "Moreover, it is wholly a mistake to say that an infant is not liable in an action for tort; e. g., assault, false imprisonment, libel, slander, etc." Dorrance v. Dorrance, 242 Mo. 625, 668, 148 S. W. 94, 106.

In the case of Dix v. Martin, 171 Mo. App. 266, 274, 157 S. W. 133, 136, the infant plaintiff brought suit, alleging that the defendant had cruelly whipped her. The defendant who stood in loco parentis to the plaintiff defended upon the theory that the infant plaintiff could not maintain the action for the reason that the relation of parent and child existed. Said the court: "The assault was wicked and criminal, and, assuming that defendant stood in the relation of a parent to plaintiff, she should answer for the damages resulting from such excessive punishment."

Bearing in mind that the cases from other jurisdictions to which we have referred hold the same principle which would allow an action to recover damages resulting from injuries maliciously inflicted would allow an action for any other tort, it is at once apparent that the doctrine of those cases is in conflict with the holding in the Dix Case.

An eminent text-writer, speaking to this subject, says: "He may so chastise his child as to be liable in an action by the child against him for a battery. * * * These observations are equally applicable to the case of a school master, or to anyone who stands in loco parentis." Reeve's Domestic Relations (4th Ed.) c. 5, p. 357.

It is general law that a "minor child has an undoubted right to maintain an action against the parent in respect of the latter's dealings with the child's property." 46 C. J. 1324.

The fact is well known to bench and bar of this state that minor child and its parent have been adversaries in suits involving title to real estate, actions in debt, will contests, and probate proceedings, and no Missouri court, so far as the writer is advised, has ever held that the law forbids such actions.

It is revealed in the case of State ex rel. v. Staed, 143 Mo. 248, 45 S. W. 50, that an infant residing with its father had obtained judgment against him for damages and for possession of land upon which the father lived. The action in which the judgment was rendered was based on an alleged fraud committed by the father against his infant son. Id., 64 Mo. App. 453, 456.

"That a father has a right to bring an action against his minor children, even though they reside with him in his home, has recently been decided in the Supreme Court of this state." McKern v. Beck, 73 Ind. App. 92, 126 N. E. 641, 644. See Bobb v. Bobb, 89 Mo. 411, 4 S. W. 511; Miller v. Miller, 148 Mo. 113, 49 S. W. 852.

It may be that an action in tort by a parent against his minor child would introduce discord and contention into the home, but it is equally true that an action involving right in property, strictly speaking, brought by parent against his minor child, would introduce discord and contention into the home and tend to disrupt the family relation, but it will not be claimed that the law forbids such action.

The holdings which forbid an action such as the one here involved are not in harmony with the authorities on that subject in this jurisdiction. The public policy of this state on the question at issue has been declared in the Dix Case.

We could not sustain the contention of the defendants without overruling that case, which we decline to do. The point is ruled against the defendants.

It is insisted by the defendants that the court erred in refusing to give an instruction in the nature of a demurrer to the evidence requested by them for the following reasons: (1) Liability cannot be predicated on admissions alone; (2) there was no showing that the negligent acts complained of were the proximate cause of the accident alleged; and (3) the alleged...