*1 Brigham. 175 Power on its disposed The former suit which not merits, trial, is not but which was before discontinued adjudicada res rights parties. will be affirmed. Wiest, Snow, Steere, J., Sharpe, C.
Clark, concurred.
ELIAS COLLINS. May Not Common Law Minor Sue 1. Child —At Parent Father. may á minor not sue his father tort. common At by Changed 2. Rule Not Vehicles —Common-Law Same —Motor Coming of Automobile. a minor common-law rule that modification tort, may so as to authorize minor not sue his father damages bring caused his father for action theory automobile, driving negligent on the changed methods, since the business the father thereon and that and insurance automobile company, is for the the insurance would be reimbursed courts, and, legislature no such action than the rather authorized, having is still the common-law rule been force. Speed Open — Crossing of Train Accident Railroads Country Negligence. Not Running 45 of 40 miles car or interurban country, highway over a an hour negligence, where the conditions were actionable was not 1157; 1663; Cyc. p. Child, R. 42 A. 31 A. L. 29 'Parent Supp. 1120; 631; 1363; 'Constitutional R. C. C. L. 20 R. L. L. R. Law, Cyc. p. 1663; Child, 'Rail- Parent and § p.
roads, that, crossing, feet back from the a view could extending 1,000 from which be had the direction cоming. car was *2 Testimony Crossing Signals Negative 4. Same — Insufficient Jury. Question to to Take Testimony by automobile, the of an struck highway crossing car at a an interurban in the country, they any crossing signal given, did not hear testimony they listening in the absence there- merely negative, for, was and was take insufficient to to n the question failing give jury signal. J., JJ., dissenting part. and Bird, and Snow C. Kent; (Major L.), Dunham J. Error Submitted 69.) April 13, (Docket No. Decided De- 9, 1926. cember Elias, infant, by friend,
Case Richard an his next аgainst Collins, Michigan John F. receiver Rail- Joseph injuries. Elias Company, personal road Judgment for defendants on directed verdict. Plain- brings error. Affirmed. tiff Rodgers Rodgers, & appellant.
Whiting Kleinstiver, & appellee receiver. Knappen, Bryant, Uhl & appellee Elias. (dissenting part). Joseph Elias is Rapids. Sunday, July resident of Grand On 12,1925, family took out he his for a drive his automobile. son, Arthur, machine, His older drove the and he sat with him. seat On the rear seat were his daughters plaintiff suit, and the boy two age. years trip they On return went north through village оf Martin. Just about a block railway north of defendant’s track crossed 13, M the north and south in a northwesterly southeasterly direction. The automobile was ‘Railroads, pp. 1113, being driven at the rate of an. 20 miles hour vicinity railway track, it reached the about was reduced to 15 miles an hour. When they 10 feet from the track an interurban discovered away, car 40 or 45 miles the rate of 40 driver, desperate Elias, hour. Arthur made stop reaching effort to trаck. He the car before however, failed, as the front wheels of the automobile stopped on the south or A west rail. collision followed, plaintiff badly was thrown out and in- jured.
Plaintiff, by brought his next friend, this action against fathеr to recover injuries. for his charges both, He the driver of the automobile motorman, negligence. and the charged Arthur Elias driving upon the track *3 observing without car, the interurban and the charged operating the car with excessive over said 13, charged M and was also approaching giving warning. said without due The trial resulted a directed verdict for both de- fendants.
1. Was the father liable? ais rule of the com mon law that a minor cannot his suе father in tort. beginning The rule had its peace interest of the family society, and of supported by and is sound public policy.
Cyc. observes: against “Actions children parents are not to be encouraged unless to palpable redress clear and a, injustice, against right minor child has no of action parent the tort of the latter.” 29 p. 1663. Ruling Case Law states the rule: “It is well established that a minor child cannot sue . parent for a tort. peace society, and of
237 —Mich.—12. public society, and a sound the families composing designed repose of families to subserve policy, society, to minor child tñe forbid best interest right appear in the assеrtion of claim to in court injuries personal at the to civil hands of the suffered redress parent parent. An cruel unkind and offense, may punished be at the time of should custody by forfeiting all, and suffer- if an offender at ing penаlties, be; minor if need but for the criminal may long continues, years, at home child who bring suit, unemancipated, arrived at to majority, parental control and under counter free from parent, either for services influenсes, his own damages accruing during infancy or to recover injury, imagined, real or referable to some stale contrary good policy.” appears quite 20 R. period, p. C. L. applied which have the rule arе Small
Cases Morrison, (118 12, 185 N. S. E. 31 A. L. R. George, (9 885, 1135); Hewlett v. Miss. 703 South. McKelvey McKelvey, 682); 13 L. R. 111 Tenn. A. 991, 130, 664, (77 64 L. R. A. 1 Ann. W. Cas. S. Rep. 787) ; Taubert, Taubert v. 103 Minn. 102 Am. St. Cooley Ed.), 763); (3d on Torts N. W. 1157, note to 31 A. L. R. for further list of cases. recognize counsel this as a rule of
Plaintiff’s they argue common but that mоdern business changed with the of the auto- methods have so the insurance thereon that the common-law mobile and be modified allow minors to recover rule should *4 torts, their father for inasmuch as insurance any comрanies promise to reimburse insured by gotten against injuries him for caused good Perhaps spice the automobile. there is of but, away in fade sense if the rule is to because say gone existence, will we the reasоn is for its what boys injured working are on farms as who while plants, by or in of industrial reason of the v. In these there as much need fathers? cases is If this of common-law rule as there ever was. go rule or be modified we think it should is to out By legislаture reason done than us. rather directing right this rule the trial court was Joseph verdict as to Elias. speed? company
2. Was the
liable for excessive
running
proof
shows that
this car was
40 or
be
miles
hour when
it crossed
stoрped it ran between 250 and 300
fore it could be
negligence,
it
as a
We have said that was not
feet.
country
to run a train in the
matter of
Railway
Guggenheim
Co.,
speed.
that
v.
rate of
150;
Thayer
Railway Co.,
150;
v.
93 Mich.
Railway Co.,
v.
Ommen v.
204 Miсh.
Hudson Rail
way Co.,
have
But highway village nearly people. Martin, a The highway. It improved was was cement State Sunday is much travel. We afternoon when there opinion that under these circumstances incline say in- jury to question for the whether it was a approached important car should have terurbаn village at the of 40 or near to the rate so 45 miles an hour. warning give due of its the interurban car Did testimony shows that there
approach? they passed from as to the noises unusual talking sug crossing. No one in the car was sаve a , daughter to the driver that he was gestion response track. The driver in approaching a ways, approach observed no car both but this looked ing. occupants of the car were interested in sаfety. crossing in This making shows that position the automobile were a. warning. They none, heard and there mood to hear given proof one was the car was was no crossing. In view we within 40 feet given. that none evidence think thеre was some Railway Co., Mich. 235 Ann. Deneen v. Cas. question gone 134). that this should think have We jury. to the age, contributory neg plaintiff’s view of
4. In imputed driver will not be to him. ligence of the will, Railway Mich. 392. there Ommen require no discussion. fore, suggestеd, should be For the errors new trial ordered. Plaintiff should reversed railway, defendant defend- from recover costs plaintiff. costs from should Joseph Elias recover ant concurred with Snow J.C. *6 that agree Justice with the Chief I Fеllows, be affirmed. defendant Elias should for the negligence agree actionable that But I do not crossing not was company was established. the but outside of Martin little the Arthur, was driv- who country. Plaintiff’s brother ing, testified: north apprоaching from “I had a view of that car that when notice 1,000 I didn’t take feet. about view of the have a I I could there 150 feet was back nearly a mile. half approaching north car of an approximately 150 рoint From a south clear you have a rail track of the first of the track along interurban view the north of that, feet, long distance, 1,000 not more than quite a from my point feet back From that idea. my objects view of obstruсt track there are north, track.” down the crossing open country with crossing was a extending 1,000 feet back from 150 feet
a view for Under our from which the car came. in the direction speed predicated cannot be authorities Co., Railroad crossing. Robinson In at Rep. 174), it said: (19 Am. was Mich. 323 St. presumed “It had com- is to that the defendant plied regard to provision with of the statute fencing constructing road, its and pass- regard safety persons property due ing to the of engine it, providing over its and cars proper to Having entitled appliances. it was done passage of trains the use of its road for the regular trains wild trains speed all its times, to incrеase the time, special when and to run or behind required. did not The law whenever its business speed trains. The business limit the rate of the of its transit, rapid both country railroads demands of been held persons property. It nowhere has negligence, an hour is that 60 miles even country running through outside train is through sparsely settled villages cities, or trains are now community. is well known [Jan. country at the rate being many parts run miles an 50 to 60 hour.” Co., Railroad Mich. v. Shufelt Mulvaney Railroad No automobile. There were five listening for one of he or was them testified that she affirmatively testimony Indeed, shows car. their giving paying any or that none of them attention any too heed to the was railroad the automobile stopped. cir- close to the.track these to be Under cumstances, testimony they I not think did testimony any signals negative given hear under Railway Co., the rule laid down in Lambert *7 107, many con- are where аuthorities sidered. perceive
I reversing reason for both defendants.
Sharpe, Steere, Wiest, concurred Clark, Fellows, SCHLUSSEL COMMERCIAL CASUALTY INSURANCE CO. — Burglary 1. Insurance Insurance Questions of Loss and Jury. Values For In burglary consolidated actions on two policies, insurance covering only property kept one in a safe and the other covering property anywhere located dwelling, in insured’s ^Burglary Insurance, and Theft 9 C. J. § 15: