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It ap

774; Banks v. State (1906) - Tex. specifically allotted to him. Crim. Rep. —,

98 S. W. 242; Hutchins peared that the defendant and his v. State (1907) 51 Tex. Crim. Rep. partner were allotted certain sections 339, 101 S. W. 795; Hare v. State of the woods to cut, and after finish(1913) 71 Tex. Crim. Rep. 395, 160 ing each section they moved their outS. W. 79.

fits, including weapons, to another Hutchins v. State (1907) 51 Tex. section of the woods. The view of the Crim. Rep. 339, 101 S. W. 795, ap- court was that the defendant's duproved the charge of the trial court ties carried him over the roads beto the effect that it was no violation tween sections, and that at the time of law for a person to carry a pistol of the alleged offense he was at his at his place of business. However, place of business and entitled to carry the jury found that the defendant

the weapon. only occasionally helped out in the Persons at their place of business saloon where he had carried a con- are expressly excepted in Georgia. In cealed weapon, and that it was not Miller v. State (Ga.) supra, it aphis regular place of business so as peared that the appellant, employed to exempt him from the crime of as a farm hand on a plantation, carcarrying a concealed weapon except

ried a pistol while going from his on his own premises or at his place

lodging place to his meals at his emof business.

ployer's residence. The court deThe court held in Page v. State

cided that the appellant was in fact (1894) — Tex. Crim. Rep. 25 S. W. 774, that the defendant was permitted

at his place of business and entitled by the exception to carry a concealed

to the benefit of the exception. See weapon about his place of business.

also Coker v. State (1912) 12 Ga. In Hare v. State (Tex.) supra, it

App. 425, 76 S. E. 103, 991. was held that an employee of a lum

Compare generally the cases set ber company was entitled to the bene- out supra, under the heading "Emfit of the exception where his duties ployee.”

R. E. La G. required him to go off the premises

MILDRED SMALL, by Next Friend, Appt.,


North Carolina Supreme Court June 8, 1923.

(185 N. C. 577, 118 S. E. 12.) Parent and child — action against father — when maintainable.

1. An unemancipated infant cannot maintain an action against his father for negligent injuries.

[See note on this question beginning on page 1157.] Insurance indemnity

action claim against the insurer can arise on against insurer.

behalf of an injured person until 2. No action lies against an insurer execution has been returned unsatisagainst liability for injury by auto- fied against the insured. mobile in favor of one so injured, be- [See notes in 6 A.L.R. 381; 13 A.L.R. fore judgment against the insured, 136; 19 A.L.R. 881; 23 A.L.R. 1474; where the policy provides that no 28 A.L.R. 1303.]

(Clark, Ch. J., dissents.)

APPEAL by plaintiff from a judgment of the Superior Court for Gaston County (Long, J.) sustaining demurrers to the complaint in an action brought to recover damages for alleged negligent injury caused by col. lision of two automobiles owned and driven by defendants. Affirmed. Statement by Stacy, J.:

fendant J. C. Small, with whom Civil action on behalf of the in- plaintiff was riding at the time, and fant plaintiff, brought by her next the other owned and driven by the friend, to recover damages of her defendant John R. Morrison. It is father, J. C. Small, the Globe In- alleged that plaintiff's injuries were demnity Company, and John R. caused by the negligence of each or Morrison, for an alleged negligent both of the individual defendants. injury caused by the collision of two The Globe Indemnity Company is automobiles, one driven by plain- joined as a party defendant because tiff's father and the other by John it is alleged that J. C. Small, plainR. Morrison. The defendants J. C. tiff's father, carried a policy of liaSmall and the Globe Indemnity bility insurance with said company, Company each demurred to the com- wherein it agreed “to indemnify the plaint. Demurrers sustained, and assured against loss from the liabilthe plaintiff appealed. The defend- ity imposed by law upon the assured ant John R. Morrison filed answer for damages, as a result of the owndenying liability, and does not ap- ership, maintenance, or use of any peal, as the case against him has of the said automobiles :" with a not yet been tried.

provision that the total liability of Messrs. Mangum & Denny for ap

the company under the policy should pellant.

not exceed $5,000 for injury to any Messrs. Clarkson, Taliaferro, one person. Clarkson and C. W. Tillett, Jr., for

J. C. Small and the Globe Indemappellees:

nity Company demur to the comAn unemancipated minor child can- plaint for the following reasons: not maintain an action in tort against (1) Because plaintiff, the unemanciits father.

pated minor child of defendant J. C. 20 R. C. L. 631; 29 Cyc. 1163; Hew

Small, cannot maintain this action lett v. George, 68 Miss. 703, 13 L.R.A. 682, 9 So. 885; McKelvey v. McKelvey,

against her father; and (2) because 111 Tenn. 388, 64 L.R.A. 991, 102 Am.

there is a misjoinder both of parties St. Rep. 787, 77 S. W. 664, 1 Ann. Cas.

defendant and of causes of action130; Roller v. Roller, 37 Wash. 242, the one sounding in tort and the oth68 L.R.A. 893, 107 Am. St. Rep. 805, er arising ex contractu, according 79 Pac. 788, 3 Ann. Cas. 1; Taubert to the allegations of the compla v. Taubert, 103 Minn. 247, 114 N. W. Shore v. Holt, 185 N. C. 312, 117 S. 763.

E. 165, and cases there cited. (3) There was no primary liability under the policy of the indemnity com

The indemnity company further de

murs because it is provided that no pany in favor of plaintiff, and she cannot recover of that company.

claim on the part of the plaintiff can Newton v. Seeley, 177 N. C. 528, 99

arise under the policy in question S. E. 347; Clark v. Bonsal, 157 N. C.

until execution against the defend270, 48 L.R.A.(N.S.) 191, 72 S. E. 954; ant J. C. Small shall have been Hensley V. McDowell Furniture Co. returned unsatisfied in an action 164 N. C. 148, 80 S. E. 154.

brought against him. For this poStacy, J., delivered the opinion of

sition, the defendant relies upon the the court:

cases of Newton v. Seeley, 177 N. C. Mildred Small. nine-year-old 528, 99 S. E. 347, Clark v. Bonsal, daughter of J. C. Small, brings this 157 N. C. 270, 48 L.R.A. (N.S.) 191, action against her father, the Globe

72 S. E. 954, and Hensley v. McIndemnity Company, and John R.

Dowell Furniture Co. 164 N. C. 148, Morrison, to recover damages for

80 S. E. 154. an alleged negligent injury caused The principle announced in Gorby the collision of two automobiles, rell v. Greensboro Water Supply Co. one owned and driven by the de- 124 N. C. 328, 46 L.R.A. 513, 70 Am. (185 N. 0. 577, 118 8. E. 12.) St. Rep. 598, 32 S. E. 720; Fisher v. While this position is supported Greensboro Water_Supply Co. 128 by all the authorities on the subject, N. C. 375, 38 S. E. 912; Jones v. with none to the contrary, it is Durham Water Co. 135 N. C. 554, 47 worthy of note that in the entire S. E. 615, and Morton v. Washing- judicial history of this country and ton Light & Water Co. 168 N. C. of England, not more than four or 582, 84 S. E. 1019, to the effect that, five cases involving the question in certain cases, a beneficiary under have found their way to any of the a contract, though not a formal par- appellate courts. This within itself ty thereto, may maintain an action would seem to be a circumstance for its breach, can have no applica- tending to show not only the soundtion to the facts of the present rec- ness of the position, but also that it crd; for here, by express stipula- is founded in natural justice and in tion, the indemnitor is not to be keeping with the eternal fitness of held liable in an action at the in- things; otherwise, a number of stance of the injured party, unless cases might have been expected, and until "execution against the as- some involving the most trivial and sured is returned unsatisfied” in an others the most serious allegations action brought against him. This, of negligence. To entertain the

in terms, is made a present suit would be to open the Insurance-indemnity-action condition precedent doors of the courts to every minor against insurer.

to the right of the child who has suffered an injury, injured party to maintain an action real or imaginary, at the hands of against the indemnity company; its parents on account of their negand where the rights of the parties lect, or want of due care, in provid. are fixed by contract the law will ing for or looking after its welfare. uphold such rights. Clancy v. Over This, to say the least, would be unman, 18 N. C. (1 Dev. & B. L.) 402; seemly, if not productive of great Clark v. Bonsal, 157 N. C. 270, 48 mischief. L.R.A. (N.S.) 191, 72 S. E. 954, and The principal reasons assigned cases there cited. The assured for denying to minor children the could have applied for, and no doubt right to sue their parents in tort obtained, a policy of insurance are clearly stated 20 R. C. L. 631, which would have given the instant as follows: “It is well established plaintiff a right to maintain an ac- that a minor child cannot sue his tion against the indemnity company, parent for a tort. The peace of without first suing the assured; but society, and of the families composthis was not done, and we are not at ing society, and a sound public polliberty to add such a provision to icy, designed to subserve the repose the present contract. The question of families and the best interests of of liability must be determined ac- society, forbid to the minor child a cording to the rights and duties of right to appear in court in the asthe parties at the time of the injury. sertion of a claim to civil redress for

The right of the plaintiff to pro personal injuries suffered at the ceed against the indemnity company hands of the parent. An unkind must of necessity rest upon her and cruel parent may and should right to sue her father in tort; and be punished at the time of the ofif this be denied the judgment sus- fense, if an offender at all, by fortaining the demurrer should be af- feiting custody and suffering crimifirmed. Holding, as we do, that nal penalties, if need be; but for the

such remedy is not minor child who continues, it may Parent and child -action against

available to the in- be for long years, at home and unfather-when

stant plaintiff in an emancipated, to bring a suit, when maintainable. action like the pres

arrived at majority, free from paent, we deem it unnecessary to con- rental control and under counter sider the other grounds urged in influences, against his own parent, support of the demurrers.

either for services accruing during 31 A.L.R.–72.

infancy or to recover damages for fered at the hands of the parent. some stale injury, real or imagined. The state, through its criminal laws, referable to that period, appears will give the minor child protection quite contrary to good policy. And from parental violence and wrong. this rule has been applied not only doing, and this is all the child can in cases of excessive punishment, or be heard to demand." other assault and battery, but to the The next case is McKelvey v. Mcmost extreme case possible, that of Kelvey, 111 Tenn. 388, 64 L.R.A. the ravishment of a minor daughter 991, 102 Am. St. Rep. 787, 77 S. W. by her father.”

664, 1 Ann. Cas. 130 (1903). This Again, in 29 Cyc. 1663, it is said: was a suit instituted by a minor “Actions by children against their against her father and stepmother, parents are not to be encouraged seeking to recover

recover damages for unless to redress clear and palpable cruel and inhuman treatment, alinjustice, and a minor child has no leged to have been inflicted upon her right of action against a parent for by the stepmother at the instance the tort of the latter."

and with the consent of the father. Apparently the earliest reported The suit was dismissed upon demurcase in this country involving the rer and the supreme court upheld question under consideration is the judgment of dismissal. The Hewlett v. George, 68 Miss. 703, 13 case of Hewlett v. George, supra, L.R.A. 682, 9 So. 885 (1891). Here was approved and quoted from at a minor daughter, who had been length. The following is taken from married, but who, at the time of the the opinion: “So far as we can alleged injury, was separated and discover, this rule of the common living apart from her husband, law has never been questioned in brought suit against her mother for any of the courts of this country, wrongfully confining her in an in- and certainly no such action as the sane asylum. The court, remarking present has been maintained in that there was not sufficient evi- these courts. It is true that no less dence to show that she had not re- celebrated an authority than Judge sumed her former place in her moth- Cooley, in the second edition of his er's home, and was therefore un- work on Torts, at page 171, observes emancipated, held as follows: "If, that 'in principle there seems to be by her marriage, the relation of no reason it should not be susparent and child had been finally tained.' No case, however, is cited dissolved, in so far as that relation- in support of this text. In fact, the ship imposed the duty upon the par- only case which the diligence of ent to protect and care for and con- counsel has been able to find in trol, and the child to aid and com- which this particular question has fort and obey, then it may be the been discussed is that of Hewlett v. child could successfully maintain an George, supra." action against the parent for per- The next case in point of time sonal injuries. But, so long as the (1905) is Roller v. Roller, 37 Wash. parent is under obligation to care 242, 68 L.R.A. 893, 107 Am. St. Rep. for, guide, and control, and the child 805, 79 Pac. 788, 3 Ann. Cas. 1. is under reciprocal obligation to aid In this case the defendant had been and comfort and obey, no such ac- convicted of a very serious and agtion as this can be maintained. The gravated assault upon his minor peace of society, and of the families daughter, and she brought suit to composing society, and a sound pub- recover of him damages therefor. lic policy, designed to subserve the Defendant demurred to the comrepose of families and the best in- plaint, and the case went up on the terests of society, forbid to the mi- judgment overruling the demurrer, nor child a right to appear in court which judgment was reversed in the in the assertion of a claim to civil appellate court on the ground that a redress for personal injuries suf- minor child has no cause of action

(185 N. C. 577, 118 8. E. 12.) against her father for tort commit- for any other tort. The principle ted.

permitting the action would be the In the course of its opinion, the same. The torts would be different court said:

only in degree. Hence, all the dis“The rule of law prohibiting suits turbing confusion would be introbetween parent and child is based duced which can be imagined under upon the interest that society has in a system which would allow parpreserving harmony in the domestic ents and children to be involved in relations, an interest which has been litigation of this kind. manifested since the earliest organ- "Outside of these reasons which ization of civilized government, an affect public policy, another reason, interest inspired by the universally which seems almost to be reductio recognized fact that the mainte- ad absurdum, is that, if a child nance of harmonious and proper should recover a judgment from a family relations is conducive to good parent, in the event of its death the citizenship, and therefore works to parent would become heir to the the welfare of the state.

very property

property which had been “This view, in effect, is not dis- wrested by the law from him. In puted by the respondent, who ad- addition to this, the public has an mits the general proposition that interest in the financial welfare of the domestic relations of the home other minor members of the family, and family fireside cannot be dis- and it would not be the policy of the turbed by the members thereof, by law to allow the estate, which is to litigation prosecuted against each be looked to for the support of all other for injuries, real or imagi- the minor children, to be approprinary, arising out of these relations; ated by any particular one. but he asserts that the law has well- “At common law it is well estabdefined limitations, and that every lished that a minor child cannot sue rule of law is founded upon some a parent for a tort. It is said by good reason, and the object and pur- Cooley on Torts, p. 276, under the pose intended to be attained must be title of 'Wrongs to a Child:' 'For looked to, as a fair test of its scope an injury suffered by the child in and limitations; that, in the case at that relation no action will lie at the bar, the family relations have al- common law. And this has been ready been disturbed, and that, by held to be analogous to coverture, action of the father, the minor child where a husband or wife is forbidhas, in reality, been emancipated; den to sue the other spouse for torts that the harmonious relations exist- or wrongs committed upon them to ing have been disturbed in so rude their damage during coverture, a manner that they never can be even refusing the action after the again adjusted; and that, therefore, relation, by a divorce, has ceased to the reason for the rule does not ap- exist. See Abbott v. Abbott, 67 ply.

Me. 304, 24 Am. Rep. 27, which is “There seems to be some reason simply an expression of the univerin this argument, but it overlooks sal law on that subject. See also the fact that courts, in determining Bandfield v. Bandfield, 117 Mich. their jurisdiction or want of juris- 80, 40 L.R.A. 757, 72 Am. St. Rep. diction, rely upon certain uniform 550, 75 N. W. 287. principles of law, and, if it be once "Mr. Schouler, in his work on Doestablished that a child has a right mestic Relations, $ 275, after disto sue a parent for a tort, there is cussing the proposition of filial relano practical line of demarcation tions, says: “With reference to a which can be drawn; for the same blood parent, however, all such litiprinciple which would allow the ac- gation seems abhorrent to the idea tion in the case of a heinous crime, of family discipline which all nalike the one involved in this case, tions, rude or civilized, have so would allow an action to be brought steadily inculcated, and the privacy

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