Trudell v. Leatherby

Plaintiff, a minor, by his guardian, instituted this action to recover damages sustained by him in an automobile accident in which the automobile driven by the defendant Florence Trudell, and in which plaintiff was then riding, ran off or was forced off of the highway and over the embankment, resulting in serious injury to plaintiff. The defendants in the action were Florence Trudell C. E. Leatherby, and the California Agencies, Inc., besides same fictitious persons named as defendants, none of whom enter into the merits of this controversy. The defendant Florence Trudell is and was at the date of the injury to plaintiff the stepmother of the plaintiff. The evidence shows that plaintiff’s mother died when he was very young and that thereafter his father married Florence Trudell, and ever since plaintiff could remember she sustained to him the relationship of mother. Plaintiff was at the time of the accident twelve years of age. At the time of the accident he was a member of his father’s household and had been such a member during his entire lifetime. Since his father’s marriage with his present wife the household consisted of his father, the defendant herein, and the plaintiff, except in later years when two minor children were born to Mr. and Mrs. Trudell. The accident in which the plaintiff was injured occurred while plaintiff was riding with the two minor children above mentioned in the rear seat of the automobile. His father was riding on the front seat with plaintiff’s stepmother. The automobile in which they were riding was traveling north on a narrow road in San Mateo County, known as the Ocean Shore Highway. "While so traveling they met another machine driven by the defendant Leatherby, and owned by the California Agencies, Incorporated. As the two machines passed each other, the one in which plaintiff was riding was either forced off the highway by the other machine, or the driver thereof in her endeavor to pass the other machine ran the one which she was driving off the highway and down the embankment.

The action was tried before the court with a jury, resulting in a verdict in favor of the plaintiff and against his stepmother, the said Florence Trudell, and against the plaintiff in favor of the two other defendants. From the judgment entered on this verdict, the defendant Florence Trudell appeals. No appeal has been taken by the plaintiff from

The principal point urged by the appellant for a reversal of this judgment is that a minor child cannot recover against its parent for a tort committed by the latter, and that this same rule applies where, although the relationship between them is not that of actual parent and child, one of the parties stands in loco parentis to the other.

That a minor child, unemancipated by its parents, cannot sustain an action against its parents seems to be well settled by the authorities. “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.” (29 Cye. 1663; see, also, 46 C. J., p. 1324.) To the same effect are the following well considered cases: Smith v. Smith, 81 Ind. App. 566 [ 142 N. E. 128 ] ; Small v. Morrison, 185 N. C. 577 [ 31 A. L. R. 1135 , 118 S. E. 12 ] ; Matarese v. Matarese, 47 R. I. 131 [ 131 Atl. 198 , 42 A. L. R 1360 ] ; Elias v. Collins, 237 Mich. 175 [ 52 A. L. R. 1118 , 211 N. W. 88 ] ; Wick v. Wick, 192 Wis. 260 [ 52 A. L. R. 1113 , 212 N. W. 787 ] ; Ciani v. Ciani, 127 Misc. Rep. 304 [ 215 N. Y. Supp. 767 ] ; Mannion v. Mannion, 3 N. J. Misc. Rep. 68 [ 129 Atl. 431 ] ; Damiano v. Damiano, 6 N. J. Misc. Rep. 849 [ 143 Atl. 3 ] ; Mesite v. Kirchenstein et al,, 109 Conn. 77 [ 145 Atl. 753 ] ; Zutter v. O’Connell, 200 Wis. 601 [ 229 N. W. 74 ].

The reason of the rule which deprives a minor child of a right of action against the parent for the tort of the latter is that proceedings of that nature tend to bring discord into the family and disrupt the peace and harmony of the household.

“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 interest 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.” (20 R. C. L. 631.)

The next question presented for our determination is as to the applicability of the above rule to persons who do not sustain the actual relation of parent to minors in their families, but who by reason of the fact that such minors have become members of their household stand in loco parentis to said minors. It appears to be "well settled that a stepparent merely by reason of such relationship to his stepchild does not stand in loco parentis to such stepchild. (In re Harris, 16 Ariz. 1 [Ann. Cas. 1916A, 1175, 140 Pac. 825 ], Rockwood v. Rockwood, 65 Utah, 261 [ 236 Pac. 457 ], and Treschman v. Treschman, 28 Ind. App. 206 [ 61 N. E. 961 ].)

In 29 Cyc., page 1667, the law upon this subject is stated to be: “A stepfather does not, merely by reason of the relation, stand in loco parentis to his stepchild; but where the stepfather received the stepchild into his family and treats it as a member thereof, he stands in the place of the natural parent, and the reciprocal rights, duties, and obligations of parent and child continue as long as such relation continues.” (See, also, 46 C. J. 1338.)

As to the rights, duties and obligations of one standing in loco parentis this court has on several occasions expressed its views. In Starkie v. Perry, 71 Cal. 495 [ 12 Pac. 508 ], quoting from the syllabus it was held that, “An uncle who receives his minor niece into his household as a member of his family stands towards her in loco parentis, and is bound to support and maintain her according to his circumstances, and is not entitled to charge her for the necessary food, clothes, and lodging furnished her, either during the minority or afterwards, during the existence of the quasi paternal relation between them. On the other hand, the niece, during the continuance of such relation, is not entitled to charge her uncle for services by her in and about his house.” In Larsen v. Hansen, 74 Cal. 320 [ 16 Pac. 5 , 6], we find the law stated in the following terms, “As a parent may not recover

The facts in this case plainly and conclusively show that the defendant Florence Trudell stood in the relation of loco parentis to the plaintiff, Howard Trudell. His mother died when he was quite young and his father married Florence Trudell when the boy was so young he could not remember the event. We gather from the evidence that ever since this marriage the plaintiff has lived with his father and stepmother in their home, and was treated and regarded by his stepmother as her own child, and in turn he regarded his stepmother as his own mother, In fact he testified that she was the only mother he ever knew. They were to all intents and purposes mother and son. If so, she owed to him the same duty that she owed to her own children, and she, in regard to him, possessed the same rights as she had toward her own children. One of these rights was and is to be protected

Langdon, J., Richards, J., Seawell, J., Shenk, J., and Waste, C. J., concurred.

Rehearing denied.