774; Banks v. State (1906) Tex. Crim. Rep. 98 S. W. 242; Hutchins v. State (1907) 51 Tex. Crim. Rep. 339, 101 S. W. 795; Hare v. State (1913) 71 Tex. Crim. Rep. 395, 160 S. W. 79.

Hutchins v. State (1907) 51 Tex. Crim. Rep. 339, 101 S. W. 795, approved the charge of the trial court to the effect that it was no violation of law for a person to carry a pistol at his place of business. However, the jury found that the defendant only occasionally helped out in the saloon where he had carried a concealed weapon, and that it was not his regular place of business so as to exempt him from the crime of carrying a concealed weapon except on his own premises or at his place

of business.

It ap

specifically allotted to him. peared that the defendant and his partner were allotted certain sections of the woods to cut, and after finishing each section they moved their outfits, including weapons, to another section of the woods. The view of the court was that the defendant's duties carried him over the roads between sections, and that at the time of the alleged offense he was at his place of business and entitled to carry the weapon.

Persons at their place of business are expressly excepted in Georgia. In Miller v. State (Ga.) supra, it appeared that the appellant, employed as a farm hand on a plantation, carried a pistol while going from his lodging place to his meals at his employer's residence. The court decided that the appellant was in fact at his place of business and entitled to the benefit of the exception. See also Coker v. State (1912) 12 Ga. App. 425, 76 S. E. 103, 991. Compare generally the cases set out supra, under the heading "Employee." R. E. La G.

Statement by Stacy, J.:

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. 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.

Messrs. Mangum & Denny for appellant.

Messrs. Clarkson, Taliaferro, & Clarkson and C. W. Tillett, Jr., for appellees:

An unemancipated minor child cannot maintain an action in tort against its father.

20 R. C. L. 631; 29 Cyc. 1163; Hewlett v. George, 68 Miss. 703, 13 L.R.A. 682, 9 So. 885; McKelvey v. McKelvey, 111 Tenn. 388, 64 L.R.A. 991, 102 Am. St. Rep. 787, 77 S. W. 664, 1 Ann. Cas. 130; Roller v. Roller, 37 Wash. 242, 68 L.R.A. 893, 107 Am. St. Rep. 805, 79 Pac. 788, 3 Ann. Cas. 1; Taubert v. Taubert, 103 Minn. 247, 114 N. W. 763.

There was no primary liability under the policy of the indemnity company in favor of plaintiff, and she cannot recover of that company.

Newton v. Seeley, 177 N. C. 528, 99 S. E. 347; Clark v. Bonsal, 157 N. C. 270, 48 L.R.A. (N.S.) 191, 72 S. E. 954; Hensley v. McDowell Furniture Co. 164 N. C. 148, 80 S. E. 154.

Stacy, J., delivered the opinion of

the court:

Mildred Small, nine-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 de

driven by defendants. Affirmed. fendant 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.

(3)

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 actionthe one sounding in tort and the other arising ex contractu, according to the allegations of the complaint. Shore v. Holt, 185 N. C. 312, 117 S. E. 165, and cases there cited. 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, 99 S. E. 347, Clark v. Bonsal, 157 N. C. 270, 48 L.R.A. (N.S.) 191, 72 S. E. 954, and Hensley v. McDowell Furniture Co. 164 N. C. 148, 80 S. E. 154.

The principle announced in Gorrell v. Greensboro Water Supply Co. 124 N. C. 328, 46 L.R.A. 513, 70 Am.

St. Rep. 598, 32 S. E. 720; Fisher v. Greensboro Water Supply Co. 128 N. C. 375, 38 S. E. 912; Jones v. Durham Water Co. 135 N. C. 554, 47 S. E. 615, and Morton v. Washington Light & Water Co. 168 N. C. 582, 84 S. E. 1019, 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 reccrd; for here, by express stipulation, the indemnitor is not to be held liable in an action at the instance of the injured party, unless and until "execution against the assured is returned unsatisfied" in an action brought against him. This,

Insurance-indemnity-action

against insurer.

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. (1 Dev. & B. L.) 402; Clark v. Bonsal, 157 N. C. 270, 48 L.R.A. (N.S.) 191, 72 S. E. 954, and cases there cited. The assured could have applied for, and no doubt obtained, a 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. 31 A.L.R.-72.

Parent and child -action against father-when

maintainable.

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 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 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, 13 L.R.A. 682, 9 So. 885 (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 suf

fered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand."

The

The next case is McKelvey v. McKelvey, 111 Tenn. 388, 64 L.R.A. 991, 102 Am. St. Rep. 787, 77 S. W. 664, 1 Ann. Cas. 130 (1903). 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. case of Hewlett v. George, supra, 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, supra."

The next case in point of time (1905) is Roller v. Roller, 37 Wash. 242, 68 L.R.A. 893, 107 Am. St. Rep. 805, 79 Pac. 788, 3 Ann. Cas. 1. 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 demurred 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 welldefined 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, if it be once established that a child has a right to sue a parent for a tort, there is no practical line of demarcation 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. 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 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, 40 L.R.A. 757, 72 Am. St. Rep. 550, 75 N. W. 287.

"Mr. Schouler, in his work on Domestic Relations, § 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