114 S.W.2d 468 | Ark. | 1938
Appellee, Billy Rambo, six years of age, brought this action by his mother and next friend against appellant, his father, to recover damages in the sum of $50,000 for personal injuries sustained by him through the alleged negligence of his father and of his agents, servants and employees. The complaint failed to allege the relationship existing between the parties. A motion of appellant to require this relationship to be alleged was overruled by the trial court. Thereupon, counsel for appellant filed a demurrer for him alleging that Billy Rambo is the minor son of appellant; that Faye Rambo, mother and next friend of Billy, is the wife of appellant; and that they all live together as one family, and that no cause of action exists in favor of appellee against appellant for the alleged tort, and that the complaint fails to state facts sufficient to constitute a cause of action. An answer was also filed denying the material allegations of the complaint. Counsel for appellee then filed an amendment to the complaint, admitting the relationship disclosed in the answer, and, in addition, alleging that appellant carried public liability insurance in the sum of $10,000, indemnifying him against loss by reason of injuries suffered by members of the public to that extent, and reduced the amount of the demand to that sum. Appellant moved to strike from said amendment all reference to the insurance carried by appellant. This motion was overruled, as was a general demurrer to the amendment, all over the objections and exceptions of appellant. Thereupon, all answer was filed to the amendment denying all the material allegations thereof. Trial resulted in a verdict and judgment against appellant for $10,000. *834
For the purpose of this decision, we assume that the negligence as alleged was established by the evidence. This leaves for consideration only questions of law, two in number. The first is whether an unemancipated minor child may maintain an action for damages against a parent, based on an involuntary tort, that is, an unintentional tort; and the second is whether the existence of a policy of liability insurance, protecting the parent from loss for injury to a member of the public, would save such all action otherwise not maintainable. We think both questions must be answered in the negative.
1. So far as we are advised by the diligence of counsel as reflected by the excellent briefs, and so far as our own investigation discloses, this court has never heretofore had the exact point for decision. A number of the courts of last resort in the United States have had this question for decision and they all hold, as stated in 46 C.J., p. 1324, that, "An unemancipated minor child has no right of action against a parent or a person standing in loco parentis, for the tort of such parent or person, unless a right of action is authorized by statute, although it has been held that the action may be maintained after emancipation of the child. Nor can the child, even after reaching majority, maintain an action for tort committed by the parent while the child was an unemancipated minor." The contrary doctrine is then stated that, "In some jurisdictions it has been held that a minor child may maintain an action against a step-parent, or a person in loco parentis, for malicious assault or cruel and unhuman treatment." A great many cases are cited by the author to support the text, many of which are cited by counsel for appellant.
One of such cases is Matarese v. Matarese,
The reasons for the rule are stated somewhat differently in Wick v. Wick,
We think it unnecessary to cite or quote further from the cases listed in the note to the text above quoted in Corpus Juris, but deem it sufficient to say that the author cites cases from the following jurisdictions: Ill., Ind., Mich., Minn., Miss., N.J., N.Y., N.C., R.I., Tenn., Wash., and Wisconsin. In addition it may be said that Pennsylvania may also be included as the case of Briggs v. City of Philadelphia,
We, therefore, hold that an unemancipated minor may not maintain an action for an involuntary tort against his parent in this state. The converse of the proposition would likewise be true, that the parent might not maintain such an action against his infant child.
2. The next question is, whether the fact that appellant carried public liability insurance, authorized the maintenance of this action. In the first place, it may be said that the question of whether appellant had liability insurance had no proper place in this action, and the court should have granted appellants motion to strike all mention of insurance held by him from the amendment to the complaint as well as to have excluded all proof regarding same offered in evidence. It has often been held that in a personal injury case, it is prejudicial error to permit counsel for plaintiff unnecessarily to advise the jury by questions or otherwise, of the fact that defendant carries indemnity insurance. It was so held in Pekin Stave Manufacturing Co. v. Ramey,
Another reason why the fact of liability insurance cannot be helpful to the appellee is the contract of indemnity itself. Clause 2 of the policy provides: "2. Indemnity. To pay, within the limits specified in Statement 3, the loss from the liability imposed by law upon the assured for damages (including consequential damages) on account of such injuries." As we have already shown, there is no liability imposed by law upon appellant for the injuries sustained by his infant son, and hence, if there is no liability imposed by law upon appellant, there could be no liability imposed upon the insurance company. In several of the cases cited to the text above quoted from Corpus Juris, it was held that the fact that the father was protected by liability insurance did not change the rule. In one of such cases, Elias v. Collins,
"Plaintiff's counsel recognizes this as a rule of the common law, but he argues that modern business methods have so changed, with the coming of the automobile and the insurance thereon, that the common-law rule should be modified to allow minors to recover against their father for torts, inasmuch as insurance companies promise to reimburse the insured for `any judgment gotten against him for injuries caused by the automobile. Perhaps there is a spice of good sense in this, but, if the rule is to fade away because the reason is gone for its existence, what will we say as to boys who are injured while working on farms or in industrial plants, by reason of the negligence of their fathers? In these cases there is as much need of the common-law rule as there ever was. If this rule is to go out or be modified, we think it should be done by the Legislature rather than by us. By reason of this rule the trial court was right in directing a verdict as to Joseph Elias."
To the same effect is Norfolk S. Ry. Co. v. Gretakis,
The judgment will be reversed, and the cause dismissed. *840