Small Ex Rel. Balthis v. Morrison , 185 N.C. 577 ( 1923 )

HOKE, J., concurring; CLARK, C. J., dissenting; CLARKSON, J., not sitting or taking part. 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. C. (578) 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 case against him has not yet been tried. Mildred Small, 9-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 excontractu, according to the allegations of the complaint. Shore v. Holt,ante, 312, 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; Clark v. Bonsal, 157 N.C. 270, and Hensley v.Furniture Co., 164 N.C. 148.

The principle announced in Gorrell v. Water Supply Co., 124 N.C. 328;Fisher v. Water Co., 128 N.C. 375; Jones v. Water Co., 135 N.C. 544, and Morton v. Water Co., 168 N.C. 582, 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 (579) 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. Bonsal,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 indemnity 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 father in 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 in 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 (580) 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 So. 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 wrong-doing, 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; 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, (581) 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 second edition of his work on Torts, at page 171, observes that ``in principle there seems to be no reason it should not be sustained. No case, however, is cited in support of this text. In fact, the only case which the diligence of counsel has been able to find in which this particular question has been discussed is that of Hewlett v.George, reported in 68 Miss. 703; 9 So. 885; 13 L.R.A. 682."

The next case in point of time (1905) is Roller v. Roller, 37 Wash. 242;79 P. 788; 68 L.R.A. 893. In this case the defendant had been convicted of a very serious and aggravated assault upon his minor daughter, and she brought suit to recover of him damages therefor. Defendant demurrer to the complaint, and the case went up on the judgment overruling the demurrer, which judgment was reversed in the appellate court on the ground that a minor child has no cause of action against her father for tort committed.

In the course of its opinion the Court said: "The rule of law prohibiting suits between parent and child is based upon the interest that society has in preserving harmony in the domestic relations, an interest which has been manifested since the earliest organization of civilized government, an interest inspired by the universally recognized fact that the maintenance of harmonious and proper family relations is conducive to good citizenship, and therefore works to the welfare of the State.

"This view, in effect, is not disputed by the respondent, who admits the general proposition that the domestic relations of the home and family fireside cannot be disturbed by the members thereof, by litigation prosecuted against each other for injuries, real or imaginary, arising out of these relations; but he asserts that the law has well-defined limitations, and that every rule of law is founded upon some good reason, and the object and purpose intended to be attained must be looked to, as a fair test of its scope and limitations; that, in the case at bar, the family relations have already been disturbed, and that, by action of the father, the minor child has, in reality, been emancipated; that the harmonious relations existing have been disturbed in so rude a manner that they never can be again adjusted; and that, therefore, the reason for the rule does not apply.

"There seems to be some reason in this argument, but it overlooks the fact that courts, in determining their jurisdiction, or want of jurisdiction, rely upon certain uniform principles of law, and, (582) 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 henious [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. The torts would be different only in degree. Hence, all the disturbing confusion would be introduced which can be imagined under a system which would allow parents and children to be involved in litigation of this kind.

"Outside of these reasons, which affect public policy, another reason, which seems almost to be reductio ad absurdum, is that, if a child should recover a judgment from a parent, in the event of its death the parent would become heir to the very property which had been wrested by the law from him. In addition to this, the public has an interest in the financial welfare of other minor members of the family, and it would not be the policy of the law to allow the estate, which is to be looked to for the support of all the minor children, to be appropriated by any particular one.

"At common law it is well established that a minor child cannot sue a parent for a tort. It is said by Cooley on Torts, p. 276, under the title of ``Wrongs to a Child': ``For an injury suffered by the child in that relation no action will lie at the common law.' And this has been held to be analogous to coverture, where a husband or wife is forbidden to sue the other spouse for torts or wrongs committed upon them to their damage during coverture, even refusing the action after the relation, by a divorce, has ceased to exist. See Abbott v. Abbott, 67 Me. 304; 24 Am. Rep. 27, which is simply an expression of the universal law on that subject. See, also,Bandfield v. Bandfield, 117 Mich. 80; 75 N.W. 287; 72 Am. St. 550; 40 L.R.A. 757.

"Mr. Schouler, in his work on Domestic Relations, sec. 275, after discussing the proposition of filial relations, says: ``With reference to a blood parent, however, all such litigation seems abhorrent to the idea of family discipline which all nations, rude or civilized, have so steadily inculcated, and the privacy and mutual confidence which should obtain in the household. 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. The courts should discourage such litigation. . . .'

"This text goes beyond the circumstances of the case at bar, where the action was brought during the minority of the plaintiff. (583) As will be seen by the extract above quoted, it is even forbidden after the child becomes of age, if the injury sued upon is referable to the period of minority. So well is this principle of the law understood that there have been very few attempts to inaugurate actions of this kind. The only one to which we are referred by brief of counsel, or which we have been able by independent investigation to discover, which seems to be in point, is Hewlett v. George, 68 Miss. 703;9 So. 885; 13 L.R.A. 682, where it was held that a parent is not civilly liable to a child for personal injuries, inflicted during minority, and where the relation of parent and child with its mutual obligations exist."

The last reported case upon the subject seems to be Taubert v. Taubert, 103 Minn. 247; 114 N.W. 763 (1908), which was presented upon the following facts:

Plaintiff's father died leaving a tanning and fur-dyeing business which the mother of the 17-year-old plaintiff was carrying on as administratrix of the estate of her deceased husband. The plant was under the active superintendency of Paul Taubert, an adult and older brother of the plaintiff, and plaintiff was injured while working as an employee at the plant and assigned the negligence of his brother, the superintendent, as the cause of such injury. The case is analogous to the present one in that the mother carried a policy of liability insurance and the insurance company joined in the defense of the suit, though not as a formal party defendant. There was a verdict for the plaintiff, and on appeal to the Supreme Court, judgment of the lower court was set aside upon the ground that a minor, unemancipated, could not sue his parent in an action based on tort.

The following is taken from the opinion of the Court: "The general rule is that a minor cannot sue his parent for a tort; but, if he has been emancipated, he can. A mere waiver, however, by the parent of the right to the earnings of his minor child does not alone constitute such emancipation. There must be a surrender by the parent of the right to the services of his minor child, and also the right to the custody and control of his person. 1 Jaggard, Torts, 462; 1 Cooley, Torts (3 ed.), 493. The disability of a minor to maintain an action for tort against his parent arises from the family relation, which may exist intact, although a minor may have been given the right to receive as his own his wages; hence, to take a case out of the general rule, there must be not only a waiver of the minor's services, but a surrender of parental control over him. The trial court correctly charged the jury as to this question of the plaintiff's emancipation. It is, however, earnestly contended on behalf of the defendant that the evidence shows that the emancipation of the plaintiff was limited to plaintiff's wages, and that other (584) than this there was no change in the parental relation. The evidence is amply sufficient to sustain a finding that the mother waived her right to the plaintiff's wages, and that she employed him to work for her in the factory for the stipulated compensation of $6 a week and his board and lodging in her home. But on the question whether she freed him from her parental custody and control the evidence is not entirely satisfactory, but sufficient, nevertheless, to justify the submission of the question to the jury."

The argument in favor of sustaining a recovery in cases like the present seems to be that, on principle, there is no reason why the parent should not be subject to a civil responsibility similar to that of a guardian or teacher, who, though standing in loco parentis, is liable for excessive punishment. Cooley on Torts (2ed.), 198. We think this argument, however, is more than overcome by practical considerations of public policy, which discourage causes of actions that tend to destroy parental authority and to undermine the security of the home. No greater disservice could be rendered to any child than to teach its feet to stray from the path of rectitude, or to suffer its mind to be poisoned by ideas of disloyalty and dishonor. The policy heretofore established in this State with respect to the maintenance of the family as the social unit is diametrically opposed to the communistic theory which Russia has unsuccessfully sought to put into practice. From the very beginning the family in its integrity has been the foundation of American institutions, and we are not now disposed to depart from this basic principle. Freedom in this country is the self-enforcement of self-enacted laws; and liberty with us is the right to go and do as you please under the law, or so long as you please to do right. Hence, in a democracy or a polity like ours, the government of a well ordered home is one of the surest bulwarks against the forces that make for social disorder and civic decay. It is the very cradle of civilization, with the future welfare of the commonwealth dependent, in a large measure, upon the efficacy and success of its administration. Under these conditions, the State will not and should not permit the management of the home to be destroyed by the individual members thereof, unless and until the interests of society itself are threatened. Whenever this occurs, adequate provision for the protection of the community, as well as the members of the family involved, has been supplied in the form of juvenile courts, welfare officers, etc. To say that a minor child, while living in the household of its parents, must be given the right to sue the latter for a tort committed, or else be declared an "outlaw," is simply begging the question and overlooking entirely the consequences that such a proceeding would have upon the household of which said child is an important member and component part. In this society of ours, complex as it is, all rights are relative; and the courts, as well as the Legislature, must look to the larger good and not merely to the smaller (585) hope. They are not to be "penny wise and pound foolish." It is conceded that the case at bar must be decided on general principles, as there is no enactment of the General Assembly covering the subject; and it is further conceded that we have not yet adopted the destructive theory of communism as a governmental policy in this country.

In Roller v. Roller, supra, the Washington Court seems to have considered all the arguments in support of, as well as those against, the doctrine announced in the several cases. To permit a minor child to sue its father for a tortious wrong would be to allow the child to take from its parent that which is already dedicated to its support and maintenance; because the law says that a parent must provide, according to his means, for the support, care, and maintenance of his minor children. It would also allow one minor child to gain an advantage over his minor brothers and sisters at the expense of the common fund which has been dedicated to a fair and equal support of them all. And further, even taking the plaintiff's view, a suit would do no more than award to the injured child that which the simple dictates of family life have already impressed with a trust in its favor. In this respect, it is permissible to observe that generosity is not a stranger to a willing hand, but it is to a forced one.

There are some things that are worth more than money. One of these is the peace of the fireside and the contentment of the home; for of such is the kingdom of righteousness. While the family relation of parent and child exists, with its reciprocal rights and obligations, the latter should not be taught "to bite the hand that feeds it," and no such action as the present should be entertained by the courts. As the twig is bent, the tree will incline; and it is the inexorable law of nature that whatsoever a man soweth, that shall he also reap. Grapes are not gathered from the thorn-bush, nor figs form the thistle. It is doubtful if any age promises a sweeter remembrance than that of a happy childhood, spent in the lovelight of kindly smiles and in the radiance of parental devotion. "Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee" is an injunction from on high, and it contains as much truth today as it did under the Mosaic dispensation. Verily, it is a command of Holy Writ — good for all time. In youth the currents of life are prodigal in their racing course, and we should be slow to encourage or to permit a minor, in the household of its parents, unemancipated, and who has not yet arrived at the age of discretion, acting only upon the advice of a "next friend," to run the risk of losing a priceless birthright and a rich inheritance in an effort to gain for the moment a mere mess of pottage, or a few pieces of silver. If this retraining doctrine were not announced by any of the writers of (586) the common law, because no such case was ever brought before the courts of England, it was unmistakably and indelibly carved upon the tablets of Mount Sinai.

Of course, nothing we have said in this opinion is to be understood as withdrawing in the least from a minor child its right of protection against a cruel and unkind parent. Should the occasion arise, or whenever necessary, the State will provide for its care and custody, because it is interested in its welfare; and, if need be, an offending parent will be visited with the pains and penalties of the criminal law. See C.S. ch. 90, on the subject of "Child Welfare." The right of a minor child to bring an action against its parent in respect to the latter's dealing with its property is unquestioned; but this right rests upon another principle, not involved in this proceeding. The law will not permit a parent, or other, to take the property of a minor child, or any one else, hold it unlawfully, and thus profit by his own wrong. This would be an unjust enrichment which the law cannot condone. Walker v. Crowder, 37 N.C. 487.

There is no authority at the common law for an action like the present; and while some may not regard the sources of the common law with reverence or with respect, yet, in its truest and most comprehensive sense, the common law is the richest heritage of the race. It is the embodiment of usage and general customs, common to all mankind; it is grounded in natural justice, and it is based upon rules of conduct which have been sanctioned by common consent and approved by the wisdom and experience of the ages. In this broad sense, it is contemporaneous with history itself; in fact, it is history; and the sources of both are lost in the mystery that characterizes all origins. There is no statutes in North Carolina which authorizes an action of this kind, and we are of opinion that the judgment sustaining the demurrers is in keeping with a sound public policy. For this reason the judgment must be upheld.

Affirmed.

CLARKSON, J., having been of counsel, took no part in the consideration or decision of this case.