and mutual confidence which should obtain in the household. 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. The courts should discourage such litigation. .

"This text goes beyond the circumstances of the case at bar, where the action was brought during the minority of the plaintiff. As will be seen by the extract above quoted, it is even forbidden after the child becomes of age, if the injury sued upon is referable to the period of minority. So well is this principle of the law understood that there have been very few attempts to inaugurate actions of this kind. The only one to which we are referred by brief of counsel, or which we have been able by independent investigation to discover, which seems to be in point, is Hewlett v. George, supra, where it was held that a parent is not civilly liable to a child for personal injuries, inflicted during minority, and where the relation of parent and child with its mutual obligations exists."

The last reported case upon the subject seems to be Taubert v. Taubert, 103 Minn. 247, 114 N. W. 763 (1908), which was presented upon the following facts:

Plaintiff's father died leaving a tanning and fur-dyeing business which the mother of the seventeenyear-old plaintiff was carrying on as administratrix of the estate of her deceased husband. The plant was under the active superintendency of Paul Taubert, an adult and older brother of the plaintiff, and plaintiff

was injured while working as an employee at the plant, and assigned the negligence of his brother, the superintendent, as the cause of such injury. The case is analogous to the present one in that the mother carried a policy of liability insurance and the insurance company joined in the defense of the suit, though not as a formal party defendant. There was a verdict for the plaintiff; and on appeal to the supreme court, judgment of the lower court was set aside upon the ground that a minor, unemancipated, could not sue his parent in an action based on tort. The following is taken from the opinion of the court: "The general rule is that a minor cannot sue his parent for a tort; but, if he has been emancipated, he can. A mere waiver, however, by the parent of the right to the earnings of his minor child, does not alone alone constitute such emancipation. There must be a surrender by the parent of the right to the services of his minor child, and also the right to the custody and control of his person. gard, Torts, 462; 1 Cooley, Torts, 3d ed. 493. The disability of a minor to maintain an action for tort against his parent arises from the family relation, which may exist intact, although a minor may have been given the right to receive as his own his wages; hence, to take a case out of the general rule, there must be not only a waiver of the minor's services, but a surrender of parental control over him. trial court correctly charged the jury as to this question of the plaintiff's emancipation. It is, however, earnestly contended on behalf of the defendant that the evidence shows that the emancipation of the plaintiff was limited to plaintiff's wages, and that, other than this, there was no change in the parental relation. The evidence is amply sufficient to sustain a finding that the mother waived her right to the plaintiff's wages, and that she employed him to work for her in the factory for the stipulated compensation of $6 a

1 Jag

The

week and his board and lodging in her home. But on the question whether she freed him from her parental custody and control the evidence is not entirely satisfactory, but sufficient, nevertheless, to justify the submission of the question to the jury."

The argument in favor of sustaining a recovery in cases like the present seems to be that, on principle, there is no reason why the parent should not be subject to a civil responsibility similar to that of a guardian or teacher, who, though standing in loco parentis, is liable for excessive punishment. Cooley, Torts, 2d ed. 198. We think this argument, however, is more than overcome by practical considerations of public policy, which discourage causes of action that tend to destroy parental authority and to undermine the security of the home. No greater disservice could be rendered to any child than to teach its feet to stray from the path of rectitude, or to suffer its mind to be poisoned by ideas of disloyalty and dishonor. The policy heretofore established in this state with respect to the maintenance of the family as the social unit is diametrically opposed to the communistic theory which Russia has unsuccessfully sought to put into practice. From the very beginning, the family in its integrity has been the foundation of American institutions, and we are not now disposed to depart from this basic principle. Freedom in this country is the self-enforcement of self-enacted laws; and liberty with us is the right to go and do as you please under the law, or so long as you please to do right. Hence, in a democracy or a polity like ours, the government of a well-ordered home is one of the surest bulwarks against the forces that make for social disorder and civic decay. It is the very cradle of civilization, with the future welfare of the commonwealth dependent, in a large measure, upon the efficacy and success of its administration. Under these conditions, the state will not and

should not permit the management of the home to be destroyed by the individual members thereof, unless and until the interests of society itself are threatened. Whenever this occurs, adequate provision for the protection of the community, as well as the members of the family involved, has been supplied in the form of juvenile courts, welfare officers, etc. To say that a minor child, while living in the household of its parents, must be given the right to sue the latter for a tort committed, or else be declared an "outlaw," is simply begging the question and overlooking entirely the consequences that such a proceeding would have upon the household of which said child is an important portant member and component part. In this society of ours, complex as it is, all rights are relative; and the courts, as well as the legislature, must look to the larger good and not merely to the smaller hope. They are not to be "penny wise and pound foolish." It is conceded that the case at bar must be decided on general principles, as there is no enactment of the general assembly covering the subject; and it is further conceded that we have not yet adopted the destructive theory of communism as a governmental policy in this country.

In Roller v. Roller, 37 Wash. 242, 68 L.R.A. 893, 107 Am. St. Rep. 805, 79 Pac. 788, 3 Ann. Cas. 1, the Washington court seems to have considered all the arguments in support of, as well as those against, the doctrine announced in the several cases. To permit a minor child to sue its father for a tortious wrong would be to allow the child to take from its parent that which is already dedicated to its support and maintenance; because the law says that a parent must provide, according to his means, for the support, care, and maintenance of his minor children. It would also allow one minor child to gain an advantage over his minor brothers and sisters at the expense of the common fund which has been dedi

cated to a fair and equal support of them all. And further, even taking the plaintiff's view, a suit would do no more than award to the injured child that which the simple dictates of family life have already impressed with a trust in its favor. In this respect, it is permissible to observe that generosity is not a stranger to a willing hand, but it is to a forced one.

There are some things that are worth more than money. One of these is the peace of the fireside and the contentment of the home, for of such is the kingdom of righteousness. While the family relation of parent and child exists, with its reciprocal rights and obligations, the latter should not be taught "to bite the hand that feeds it," and no such action as the present should be entertained by the courts. As the twig is bent, the tree will incline; and it is the inexorable law of nature that whatsoever a man soweth, that shall he also reap. Grapes are not gathered from the thorn bush, nor figs from the thistle. It is doubtful if any age promises a sweeter remembrance than that of a happy childhood, spent in the lovelight of kindly smiles and in the radiance of parental devotion. "Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee" is an injunction from on high, and it contains as much truth to-day as it did under the Mosaic dispensation. Verily, it is a command of Holy Writ-good for all time. youth the currents of life are prodigal in their racing course, and we should be slow to encourage or to permit a minor, in the household of its parents, unemancipated and who has not yet arrived at the age of discretion, acting only upon the advice of a "next friend," to run the risk of losing a priceless birthright and a rich inheritance in an effort to gain for the moment a mere mess of pottage, or a few pieces of silver. If this restraining doctrine were not announced by any of the writers of the common law, because no such

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case was ever brought before the courts of England, it was unmistakably and indelibly carved upon the tablets of Mount Sinai.

Of course, nothing we have said in this opinion is to be understood as withdrawing in the least from a minor child its right of protection against a cruel and unkind parent. Should the occasion arise, or whenever necessary, the state will provide for its care and custody, because it is interested in its welfare; and, if need, be, an offending parent will be visited with the pains and penalties of the criminal law. See chapter 90 of the Consolidated Statutes on the subject of "Child Welfare." The right of a minor child to bring an action against its parent in respect to the latter's dealing with its property is unquestioned; but this right rests upon another principle, not involved in this proceeding. The law will not permit a parent, or other, to take the property of a minor child, or anyone else, hold it unlawfully, and thus profit by his own wrong. This would be an unjust enrichment which the law cannot condone. Walker v. Crowder, 37 N. C. (2 Ired. Eq.) 478.

There is no authority at the common law for an action like the present; and while some may not regard the sources of the common law with reverence or with respect, yet, in its truest and most comprehensive sense, the common law is the richest heritage of the race. It is the embodiment of usage and general customs, common to all mankind; it is grounded in natural justice, and It is based upon rules of conduct which have been sanctioned by common consent and approved by the wisdom and experience of the ages. In this broad sense, it is contemporaneous with history itself—in fact, it is history; and the sources of both are lost in the mystery that characterizes all origins. There is no statute in North Carolina which authorizes an action of this kind, and we are of opinion that the judgment sustaining the demurrers is in keeping with a sound public policy. For

Clarkson, J., having been of counsel, took no part in the consideration or decision of this case.

Hoke, J., concurring:

At common law an action for a pure tort was not maintainable by a minor child against its parents while a member of the family. For wrongs involving a trespass to, or a misappropriation of, property, an action would lie; for in that respect the child is regarded as a separate entity, and a different principle prevails. But for torts disconnected with contract or proprietary rights, in so far as examined, no such action has heretofore been maintained in England, and whenever it has been attempted in the American courts, such a right has been consistently rejected, and, as shown in the principal opinion, the textbooks of established merit are in full approval of the principle. Not only is this true by authority, but the position is in accord with right reason. We have had occasion to note, in several of our more recent decisions, that the influences which proceed from a well-ordered home are among the chiefest bulwarks of our social order, and for that reason, among others, a family has been always regarded by the law as a government within itself, and to be interfered with only when required for the preservation of the public. peace, or for the protection of dependent children as members and potential citizens of the commonwealth. But an interference on any cther principle in breach of the family ties and relationships has thus far never been recognized or tolerated.

And the objections urged to the court's ruling on the present record are so inadequate, and at times irrelevant, that they tend rather to confirm than to weaken the decision on the question presented.

It is contended in the first place that the action is really against the indemnity company, and an effort to

law principle, to which we have referred, in protection of such company, is the merest "camouflage;" but not so. The reason it is required to take note of this alleged right of action on the part of the child against the parent is because the indemnity company in its contract has made express stipulation that no liability shall arise against the company unless and until a judgment is first had against the principal,-in this instance the father, and therefore it is that the liability of the father is a condition precedent to that of the company and must first be considered and determined. Such a position can by no means be considered as "camouflage," as we understand the meaning of the term; but it is upholding the integrity of contracts, a principle which lies at the very base of all confidence among men in their business dealings with each other, and in this instance is required also to the proper administration of impartial justice alike to the corporation and to the individual.

Again, it is insisted that the courts in their triumphant march towards higher and better things have struck off the shackles which have hitherto restrained the wife from suing the husband in such an action as this, and by that same token the child should be allowed to sue its parents in like case, and Crowell v. Crowell, 180 N. C. 516, 105 S. E. 206, is cited in support of the principle. An examination of this and like cases, however, and the opinion of Associate Justice Stacy, denying a petition to rehear the Crowell Case, in 181 N. C. 66, 106 S. E. 149, will disclose that this right of the wife is based on certain recent legislation, making such definite provision as to her right to maintain this and all other litigation affecting her interests that the policy of the law upon which this principle rests is held to have been altered as to the wife, by the legislative will, and for that reason the action by the wife was sustained;

but there has been no such legislation in reference to the case of parent and child, and therefore the principle of the common law which forbade the maintenance of any such action as between them should still be allowed to prevail.

Again it is urged, and with some vehemence and iteration, that to sustain the demurrer on the facts of the present record would be to withdraw the benefits of the law and its courts in cases where it is most needed, to wit, the protection of the weak and of the helpless; but, to my mind, this does not correctly interpret the conditions presented. On the contrary, it is well known that the law of North Carolina is full and searching in its protection of dependent minor children; so much so that a special department of the government is created and its places filled by humane and diligent, capable officials whose special duty it is to exercise supervision over this matter; and in every county in the state special courts have been established before which

vicious, or at times even improvident, parents may be summoned, and there have the conditions and

treatment of their children inquired

into; and in the decisions of these courts the welfare of the child is more and more recognized as the controlling principle. In addition to this, the arm of the criminal law may be invoked, when necessary, to restrain the strong, to punish the vicious, and to protect the weak and the helpless. Truly, the law of North Carolina is ample for the purpose indicated and the courts have been always swift to enforce it by proper procedure. But the disposition of the matter now before the court in no way impairs, or tends to impair, the beneficent provisions of this legislation.

Our

present decision merely holds that a minor child, living in the family and dependent upon its parents for support, may not institute a private, civil suit of this kind against them for its own pecuniary benefit, a proceeding which would tend to

invade and break down the integrity and sanctity of the home, and oftentimes in its practical operation might result in the impoverishment of worthy and struggling parents and utterly disqualify them from performing the duties imposed upon them by the law to maintain and nurture all of their helpless offspring. In my opinion, the opposing position insisted upon by these appellants is unwise in policy, unsound in principle, and without support of any well-considered authority.

I concur in the opinion which sustains the demurrer and holds that no right of action is presented.

Clark, Ch. J., dissenting:

J. C. Small took out a policy with the Globe Indemnity Company, one of the defendants, "to indemnify liability imposed by law upon the the assured against loss from the assured for damages as a result of the ownership, maintenance, or use of any of said automobiles on acdeath, at any time resulting therecount of bodily injuries, including from, accidentally suffered or alleged to have been suffered by any person or persons," etc.; and the company further agreed in the policy, "in the event of suit being brought against the assured on account of such accident, to defend such suit, even if groundless, in the name and on behalf of the assured, unless or until the company shall elect to effect settlement thereof."

It is alleged in the complaint, and is admitted by the demurrer, that the assured, J. C. Small, while driving his automobile, had a collision with an automobile driven by John R. Morrison, by "both acting carelessly and negligently at the time," in which Mildred Small, who brings this action by her next friend, was injured; and that J. C. Small is insolvent, and she asks damages for the injuries sustained.

It was held by this court in Gorrell v. Greensboro Water Supply Co. 124 N. C. 328, 46 L.R.A. 513,