These two actions were instituted in behalf of Donnie Gunn and Eddie Dale Gunn, minors, by a guardian ad litem to recover damages for personal injuries sustained while riding as passengers in an automobile operated by Eufaula Rollings.
It is alleged that the injuries to the said minors were the result of the negligent, careless, reckless and willful acts of Eufaula Rollings in the operation of an automobile on March 27, 1965, in York County, South Carolina. It appears that Rollings lost his life in the collision and these actions are against the administrator of his estate.
The answers of the administrator, in the third defense, alleged that although the decedent was not the natural or adoptive father of the two minors, decedent was the two minors’ stepfather, and the two, minors and decedent lived in the same household, voluntarily assumed the informal relationship of parent and children, and the decedent, therefore, stood in loco parentis to the two minors at the time of the accident. It is further alleged that because of the aforesaid in loco parentis relationship that the unemancipated minors could not maintain these actions against a person standing in loco parentis.
Plaintiffs filed demurrers to the third defense on the ground that the alleged relationship therein asserted would not be a bar to their actions. The lower court sustained *305 the demurrers of the plaintiffs and the defendant has appealed.
It is elementary that in passing upon a demurrer the court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are, for the purpose of such consideration, deemed admitted.
Outlaw v. Calhoun Lije Ins. Co.,
236 S. C. 272,
It is the settled law of this state that an unemancipated child has no right of action against his parent for personal injuries caused by the parent’s negligence, recklessness, willfulness and wantonness.
Kelly v. Kelly,
158 S. C. 517,
“The rule prohibiting suit by a minor against the parent for a personal tort is based upon considerations of public policy, which discourage causes of action that tend to undermine and destroy family unity and parental discipline. * * *”
Where one is in loco parentis, the rights, duties, and liabilities of such person are the same as those of a natural parent and such person is bound for the maintenance, care and education of the child so long as the relationship exists. The same rules of parental discipline apply to persons acting in loco parentis. 67 C. J. S. Parent and Child §§72 and 73, pages 804 and 805.
Generally speaking, an unemancipated child cannot maintain an action for damages for personal injuries against a stepparent who stands in loco parentis to the minor unless a right of action is authorized by statute. 67 C. J. S. Parent and Child § 61b(2), page 787. However, *306 suits of this kind have been sustained in several cases, but in all of them the cause of action appears to have been based upop. some type of deliberate or malicious wrong or cruel or inhuman treatment, and, even in such a case some courts hold that the child cannot maintain the suit. 39 Am. Jur., Parent and Child, Section 90, page 736.
In
Trudell v. Leatherby,
“As already seen, such actions tend to bring discord into the family and to disrupt the peace and harmony which should exist between the members of the same household. The same vexatious conditions created in the family circle by litigation between parent and child would result from like litigation instituted by a minor against the stepfather or stepmother when the minor has been taken into, and is a member of, the household of the latter. We can see no good reason why we should apply the rule in one case and deny its application in the other. If the reason for its application in one instance is sound, it must be equally so in the other, as the conditions brought about by the violation of this rule are the same in each instance.”
The case of
London Guarantee & Accident Co. v. Smith,
“Whatever may be said of the merits of the rule which bars a personal injury action in ordinary negligence by an unemancipated minor against his parent- — and it has been criticized effectively by respectable authorities — ; as long as it stands unchanged there is no justification for refusing to apply the rule to stepparents who genuinely stand in loco *307 parentis to the child of a spouse by a former marriage. It does indeed seem contrary to public policy to discourage a stepfather from voluntarily assuming the unselfish, in loco parentis position to a child in need of parental care. We therefore hold that the rule which bars an unemancipated minor from maintaining an ordinary negligence action against his parents for damages for personal injuries applies to a stepparent who stands in loco parentis to a minor child.”
In Bricault v. Deveau, 21 Conn. Super. 486, 157 A. (2d) 604, a demurrer to the defense that the action was not maintainable was interposed, but was overruled by the court in these words:
“An unemancipated minor, therefore, cannot maintain an ■ordinary negligence action for damages for personal injuries against a step-parent who stands in loco parentis to the minor.”
In the case of
Rutkowski v. Wasko,
In the case of
Bingler v. Hopper,
The case of
Chestnut v. Chestnut,
247 S. C. 332,
An unemancipated minor who does not have the right to sue his living parent for the parent’s negligence has no right to maintain such an action against the parent’s estate or administrator thereof if the parent dies, in the absence of a statute authorizing such action.
Cannon v. Cannon,
It is our conclusion that the lower court was in error in sustaining the demurrer of the plaintiffs to the third defense in the answers of the defendant. It follows that the judgment of the lower court must be, and is hereby,
Reversed.