Small Ex Rel. Balthis v. Morrison

ClauK, C.;

dissenting: J. C. Small took out a policy with the Globe Indemnity Company, one of the defendants, “To indemnify the assured against loss from the liability imposed by law upon the assured *589 for damages as a result of the ownership, maintenance or use of any of said automobiles on account of bodily injuries, including death, at any time resulting therefrom accidentally suffered or alleged to have been suffered by any person or persons,” etc.; and the company further agreed in the policy that, “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 E. 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. Water Supply Co., 124 N. C., 328 , that “One not a party or privy-to a contract, but who is a beneficiary thereof, is entitled to maintain an action for its breach.” This has been often affirmed and is the settled law in this State and elsewhere.

This is a proceeding in equity by the beneficiary of a policy of insurance against the insurance company and against the men who negligently drove the automobiles, to assess and recover the damages sustained by her in the collision, and to be subrogated to the rights of the holder of the policy of indemnity, who is insolvent; and the defense interposed by the demurrer is that the holder of the policy is the father of the little nine-year-old girl who is seeking to recover in this action. There is no allegation of willful injury by the father, nor any indication that he is seeking to cause by collusion payment of the damages she has sustained.

The indemnity company demurs for misjoinder, and also that the plaintiff could not bring an action against her father. If the plaintiff’s counsel had been well advised, he might have joined J. C. Small as a co-plaintiff, but under the reformed procedure it is immaterial on which side of a ease a necessary party-is placed, for their respective rights as between each other are settled by the judgment. C. S., 602. There was certainly no misjoinder of defendants, for both of the automobile owners are admitted by the demurrer to have acted negligently, and the policy of insurance set out in the complaint agrees to indemnify J. C. Small for any damages to any person accruing in his operation of the machine, and agrees that the defendant company shall be joined in an action to recover the same.

The defense by the defendant insurance company that J. C. Small is the father of the plaintiff is the barest camouflage, for under its contract it must pay any damages that might be sustained by any persons by reason of the negligence of J. C. Small in operating the machine. The *590 contract does not except injuries to any person, and the company is in no wise affected by the relationship of the party injured to the assured. This defense is interposed by the demurrer, like the traditional red herring drawn across the trail to divert the attention, or like the not unusual resort of defendants to change the issue or to try some other person. Indeed, eminent counsel has declared that when there is no real defense and no third party can be brought in, it is advisable to try the counsel on the other side.

But for the entirely irrelevant fact that the injured party happens to be the daughter of one of the defendants, it is admitted that she could have recovered upon the facts alleged in the complaint and admitted by the demurrer. It is also clear that, being a minor, her father could not. have recovered for her any damages claimed by her, but the action must have been brought, as it was, in her name by her next friend.

But the contention presented by the demurrer is that because solely of the relationship, the party injured cannot recover the indemnity which the insurance company has promised to pay any person injured by J. C. Small in operating the machine. This action is in reality one by her against the indemnity company (for the demurrer admits that the father is insolvent) and Morrison.

If we are called on by the demurrer to consider the law applicable if it had been in fact an action by the child against the father, it may be stated plainly and without fear of contradiction that there is no statute or decree in this State, nor by any decision in the common law has it ever been held that a child could not bring an action against the parent. There have been many cases in this and other States and in England where children have brought actions against the parents; for instance, for partition of real estate, for conversion of the child’s property, for support, and in other cases, and the right to do so has never been denied.

But it is argued by the defendant, to protect itself from liability for the damages, it agreed to pay those who, like the plaintiff, might be injured in the operation of the machine of the assured, “that such actions have always been other than torts,” but this statement cannot be supported. There are cases in our Reports and others where actions have been brought for the children against their parents for conversion or embezzlement of the children’s property, for libel and slander, and no decision can be found in England or in this State where the remedy has been denied to the children in any action on account of the relationship. The right of the children to maintain an action for the conversion of their property by the father was recognized in Dunn v. Beaman, 126 N. C., 771 , and there are many others. The present action is not even for embezzlement or fraud, but merely for negligence and to subro-gate the child, who is injured, for the father in the recovery of damages *591 according to the terms of tlie policy of the indemnity company for which the father has paid.

But it is claimed that the common law does not permit the child to be the plaintiff in any case in which the parent is a defendant. No case in England or in this State, or in America, as far as the fullest research goes, sustains this proposition. There is no such principle to be found stated in any case.

In 5 Wait’s Actions and Defenses, *76, it is said, “In all cases of injury of a personal character, an infant has the same remedies as adults; and though the father of an infant may sue for personal injuries to the latter which cause him the loss of services or the incurring of expenses, yet that will not affect the infant’s right of action-for the damages sustained by himself. Hall v. Hollander, 10 Eng. C. L., 436; 4 B. & C., 660. He may even sue his parent for an unreasonably severe chastisement, amounting to a battery. Reeves Dom. Rel., 288.”

In Eversley on Dom. Rel., 554, another English authority, it is said, “The right of a child to bring an action against his parent in respect to the latter’s dealings with his property is unquestioned,” and adds that whether the infant child can sue its parent for tort is not so clear, but “There is no rule of the common law to prevent such action' being brought.” And on page 555 it is said, “Where the tort is not for mere personal violence, but some other wrong, such as libel or slander, there does not seem to be any reason why an infant child should not sue its parent and recover compensation.”

The following quotation from the 4 Am. Ed. of Reeves Dom. Rel., the leading English work on the subject, shows that at common law an action could be brought by a child against the parent, even for a tort in the most intimate relation. On page 351, it is said the maxim is “that the parent has power, to chastise the child moderately. The exercise of this power must be in a great measure discretionary. He may so chastise his child as to be liable in an action against him for battery. The child has rights which the law will protect against the brutality of a barbarous parent.” Again, on the same page, it is said, “When the punishment is unreasonable and the parent acted, malo animo, from wicked motives, under the influence of an unsocial heart, he ought to be liable to damages.”

In the English Reports, it is said, “It is essential for the protection of infants that suits on their behalf should not be discouraged.” Sir John Leach, V. C., in Stevens v. Stevens, 6 Maddox, 97. In 2 Reeves English Law, 180, it is said, referring to ch. 15, Westminster II, in the reign of Edward I., providing that infants could maintain an action by a next friend, “This statute has always been construed as giving permission in all cases for infants to appear by their next friend; which, however, is nothing more than a confirmation of the common law.”

*592 From the above statements of the leading English authorities as to the common law, it will be seen that no judge in England has ever at any time held that a child could not maintain an action against its father, and that at common law such actions have been maintained not only in respect to dealing with the child’s property, but in actions for slander and libel (Eversley on Dom. Rel., 554, 555); and as we have adopted the common law, our courts have no authority to change it unless it has become obsolete or contrary to the humanity of' the age. C. S., 970. Two members of this Court, in Crowell v. Crowell, 180 N. C., 528 , were of the opinion that the courts could not change the common law even when it had become contrary to the spirit of the age, saying that such matter is “addressed to the Legislature, and not to the judicial branch of the government.” In S. v. Bell, 184 N. C., 719 , Mr. Justice Adams stated the sound principle of law that “the duty of legislation rests with another department of the government. It is ours only to declare the law, not to make it,” and Mr. Justice Stacy, in the same case, says that any change in law “is a matter for the Legislature.”

Yet in this case we are asked by the defendant insurance comjpany to change the well-settled principles of law as laid down by the English authorities as the common law of that country without a conflicting decision. In our own State the common law has- been followed in this respect, and the dockets of the Superior Court swarm with cases where infants have been plaintiffs against their fathers not only in matters concerning the management of their property by the father, but in proceedings to compel him to support them, and in other cases. Some of these cases have come up to this Court, but no one has ever pleaded, and no judge has ever held, that the child cannot sustain an action against the father. To so hold would put children “out of the law” and make them “outlaws” — and why should they be outlawed?

Among the numerous cases in this Court of actions by children against the father is the recent one of Sanders v. Sanders, 167 N. C., 319 , where the action was brought by two children against their father; and the Court sustained the liability of the father in that action, which was dismissed only because the relief sought of the support of the children had been granted them in another case. In Dunn v. Beaman, 126 N. C., 771 , the Court held that the children could recover from their father money received for their lands sold by order of court which the father converted to his own use; and there are numerous other cases in which actions by children against the parent have been sustained, and not one in which the child has been outlawed or refused the protection of the court upon the ground set up by this insurance company that the child cannot bring an action against the parent.

In Kimborough v. Davis, 16 N. C., 74 , a recovery was sustained for the child as beneficiary under a contract in his favor by the father. In *593 the present case the action is brought upon a policy issued by the insurance company to the father of the little girl, and she is suing to recover from the company the money promised to the beneficiaries of that contract. In Becton v. Becton, 56 N. C., 422 , an action was brought by the children through parties styled “relators” and not “next friend” as required by the statute, and the decree was held valid.

In S. v. Bell, 184 N. C., 701 , we have the same state of things, for though the action was brought in the name of the State, it was' in effect entirely a civil proceeding in behalf of the four infant children for support against the father, who had abandoned them, for there was no penalty or fine prescribed in the statute (C. S., 4447), but merely a decree that the father should pay monthly the sum of fifty dollars for the support of the children. It was simply a civil proceeding, the State acting through the solicitor as the next friend, the four little children being the real parties in interest.

Walker v. Crowder, 37 N. C., 478 , is another of the numerous cases in our Beports where the action was brought by the children against the parents to recover the value of their property which the father had wasted; and that case has been cited, among many others, in Haglar v. McComb, 66 N. C., 361 , where the children recovered in an action on their behalf against the administrator of the father.

In Burton v. Belvin, 142 N. C., 153 , the Court gave a recovery in the name of the mother for the benefit of an illegitimate child whom the father had promised to support, the Court holding that such proceeding, as in the late case of S. v. Bell, supra, “is not for the enforcement of punishment, but is in effect a civil remedy for the support of the woman and child and to save the taxpayers that expense,” citing S. v. Lisle, 134 N. C., 735 .

In S. v. Kerby, 110 N. C., 558 , it was again held that a proceeding under the statute, which is now C. S., 4447, was in effect a civil proceeding in behalf of the real beneficiaries, the children, as the “true parties in interest,” but in the name of the State as next friend, there being no punishment imposed, but a decree entered for a fixed amount to be paid by the father for the support of the children.

In Cully v. Cully, 15 A. L. R., 564, it was held that a decree could be entered against the father for support in behalf of his minor children, and on pp. 569-571 this is fortified by numerous citations from many States, among others, citing Sanders v. Sanders, 167 N. C., 319 , in which the action was brought, as above stated, by two children against their father for support.

The same principle is laid down in 9 A. & E. (2 ed.), 871, holding the father liable to the children for their support, even when there has been a decree of divorce which is silent as to the custody and support of *594 the children. These actions were evidently brought by a next friend, for no one else had authority to sue for them as the true parties in interest, and the identical names of the plaintiffs and defendants, as cited in the note, indicate the same.

In 14 Cyc., 812, it is said that at common law the father remains primarily liable for the support of the children even when there has been a divorce and the custody of the children has not been awarded to the mother. The authorities cited to that effect are numerous. The same is, held, with citation of numerous authorities in 19 C. J., 353, even when there has been a divorce and the custody of the children has not been awarded to the mother or any one else; and the note cites the above case of Sanders v. Sanders, 167 N. C., 319 , where the action, as already stated, was brought by two children against their father for support, .and, indeed, could have been brought by no one else except by them, •either through a next friend or at the instance of the solicitor, as in S. v. Bell, 184 N. C., 702 ; and exactly the same liability of the father for .support in an action on behalf of the children is set out in 8 R. C. L., 307, and 20 R. C. L., 622, calling attention to the fact that the proposition that a father was not liable to an action on behalf of his infant children for their support, as held in one early American case “was startling and opposed to any sense of justice of the courts.”

As it is well settled, therefore, that actions lie in behalf of children, usually through their next friend, as in the present case, for conversion or embezzlement of their property-by the father, or to recover a decree for their support by him, and in other cases, and there is no statute or decision in the English courts or in this State to deprive the child of the right to have its wrongs heard and passed upon in a court of justice, by what authority can we in this Court now create the “outlawry” of the children of this State, and hold that the courts cannot redress their wrongs when inflicted by the father ?

As was said in Pressly v. Yarn Mills, 138 N. C., 410 , “The law is not fossilized. It is a growth. It grows more just with the growing humanity of the age and broadens with the process of the suns.” The advance of civilization is reflected nowhere more surely than in the administration of justice. As Lord Ershine said, “Morality comes in the cold abstract from the pulpit, but men smart practically under its lessons when we lawyers are the teachers.”

The crudeness, not to say the brutality, of the common law, framed in a rude age, has been gradually modified by later decisions and statutes making the law more humane, and opening the door of justice more widely to all, without distinction of race, color, age, or sex. Much of this has been done by statute, but where the statute has lingered the courts have led the way of wider justice to all without distinction. *595 Never before now bas tbis Court ever been called upon to take tbe backward track and bar tbe claim of justice to tbe weak, or to “outlaw” tbe cbildren of tbe land from tbeir just demand to bave tbeir pleas beard for redress of wrongs.

In a rude and barbarous age Hebrews were debarred not only from bolding office, but outlawed from testifying in the courts, a position in wbicb it is now sought to place the children of tbis State; but the day long since came in England wben a Jew, as prime minister, elevated the chief executive of that land, though a woman, to be empress over hundreds of millions of people in India; and this Court, in a recent decision, in Munick v. Durham, 181 N. C., 188 , declared their equality before the law in every respect.

At common law a woman could not sue her husband because on marriage her property became bis, and any recovery by her against him would bave been useless. By the Constitution of 1868, she was given her property and 'the right to sue her husband, but in Price v. Electric Co., 160 N C., 450, the majority of the Court held that, notwithstanding tbis change in the Constitution, the husband alone could recover, for bis own use and benefit, damages for her personal injuries and for the agony, wben the jury bad assessed the wife’s injuries. the succeeding Legislature promptly corrected that wrong. Laws 1913, ch. 13.

For centuries wives bad to endure under the common law the brutalities of their husbands, because, as is claimed by the insurance company in the present case, to “give publicity to family troubles is not advisable,” and therefore it was held in the courts of this State, till S. v. Oliver, 70 N. C., 61 , in 1874, nine years after the whip bad been taken from the band of the master, that the husband was still master of bis wife, with the right to use the lash on her at bis will, and that she could not complain to a court of justice for protection, except in cases of permanent injury, one judge saying that tbis was “necessary because it was the husband’s duty to make her behave herself” (S. v. Black, 60 N. C., 263 ), and a later decision put it on the ground that to allow the wife to ask protection of a court would be unseemly publicity, and therefore the courts must stifle the sobs of the victims, and held that their demands for justice and protection could not be beard in a court of justice. S. v. Rhodes, 61 N. C., 454 .

For years it bas been common knowledge that, owing to tbe immorality of husbands, women bave been subjected to the untold horrors of shameful disease, wrecking tbeir health and causing them to bring into tbe world deformed and imbecile cbildren, or tainted with insanity or criminal tendencies, but tbe courts would bear no complaint from tbe wife because it was “better that such things should not be blazoned to tbe public.”

*596 We know that in the late war the examination of soldiers for service brought out the fact that in North Carolina the percentage of men rendered unfit for service due to this fact was larger than in almost any other State in the Union. The medical profession tells us that insanity, imbecility and predisposition to crime are largely due to this cause, but for years the wife could not make complaint. She. had no remedy at the hands of the law because, as the insurance company claims in this case, “it were better that publicity in domestic matters should not be aired in public.” But in consequence of the act of 1913, the ban of outlawry upon the wives of this State was lifted, and in Crowell v. Crowell, 180 N. C., 524 , this Court declared the emancipation of women and their full admission to demand justice in the courts in these words, “Whether a man has laid open his wife’s head with a bludgeon, put out her eye, broken her arm, or poisoned her body, he is no longer exempt from liability to her on the ground that he vowed at the altar to love, cherish and protect her. Civilization and justice have progressed that far with us, and never again will the sun go back ten degrees on the dial of Abaz. Isaiah 38:8.”

At common law the wife was outlawed from demanding justice in the courts, and her property became that of her husband. But no judge in England nor in this State, till this hour, has ever held that children could not complain to the courts and obtain remedy against the father for injuries to their property or their person. Why should we turn back on the road of justice and civilization and by judicial decree make them outlaws now?

The time was when slaves and convicts had no rights and could not be heard in the courts to complain of mistreatment, nor were their oaths admissible even in behalf of others in a court of justice. But there are no slaves now. And even as to convicts, in S. v. Nipper, 166 N. C., 272 , and S. v. Mincher, 172 N. C., 900 , this Court condemned the brutality and illegality of the corporal punishment of convicts, and held that they were entitled to be heard and their oaths taken in a court of justice. They are no longer “outlaws” whose complaints cannot be heard in a court of justice.

The insurance company in this case is asking that we shall, by judicial fiat, make the children of this land “outlaws” when outlawry has ceased as to all other classes of the community, and has never existed as to children, and it can be said in the language of Bishop Hooker, the great English divine, “Of law, the least that can be said is that her voice is the harmony of the universe. All things in heaven and earth unite to do her reverence. The greatest as subject to her power and the least as sheltered by her protection.”

*597 In the progress of the ages we have admitted the right to be heard in the courts of women, of men of all races and complexions, and of convicts. The defendant insurance company asks that we shall now turn back the clock of the ages and the onward sweep of universal justice by decreeing that it shall be exempted from the payment of the damages sustained by this little girl because in this equitable proceeding to sub-rogate her to the rights accruing to her father for damages sustained, it is necessary to make the father a party, and therefore she cannot be heard.

Policies of insurance like the present, agreeing to pay damages adjudged against the owners of automobiles because of their negligence are now common, and there is no exception in the present policy of injuries sustained by any one. At this very term, in Roberts v. Roberts, ante, 524, we have held that the wife, who was injured under similar circumstances as in this case, could recover against her husband. Upon what principle of law, by what rule of logic, shall we hold that the little daughter who was injured, probably for life, and who is the beneficiary of the same provision in the policy, shall not recover simply because her father as the policyholder is a necessary party in the equitable proceeding to assess the damages she has suffered, and she seeks to be subrogated to the rights of the insolvent father to recover as beneficiary under the terms of the policy.

We have held in Roberts v. Roberts, supra, that the wife can recover of the husband her damages, as in Crowell v. Crowell, supra, the object being to collect the judgment out of the insurance company. In this case, instead of a simple action at law of that nature, this equitable proceeding is brought, as in Benton v. Collins, 118 N. C., 196 , where the action was for tort, the shooting of plaintiff, and in Fisher v. Trust Co., 138 N. C., 224 (action for fraud), making the owners of both automobiles, the insurance company, and the beneficiary of the policy all parties, to the end that the negligence and injuries, the assessment of damages and the rights of the beneficiary shall all be determined in one action.

This is in accordance with the theory and practice of the courts of equity, and justice demands that the little girl shall receive the compensation which is due to her under the terms of the policy, and there is no foundation in precedents or logic or law which can justly debar her from standing at the seat of justice and being heard because the insurance company claims that it is “unseemly that a child should be on the opposite side of a case from her father.” The dockets of the courts and the Reports of the courts show many instances in which children have appeared as plaintiffs and their fathers as defendants.

*598 In Bird v. Blank, 5 La. Ann., 189 (1850), it was recognized that there was no legal prohibition against a child’s suing its parent in any class of cases, for it held that, “Suits of children against parents are not to be encouraged unless to redress clear and palpable- injuries. Filial duty ought to restrain the child from exposing the faults of its parents or worrying them with litigation unless compelled by extreme necessity.”

In Clasen v. Prugh, 69 Neb., 278 , it is held, “A parent, or one in loco parentis, is not liable, either civilly or criminally, for moderately and reasonably correcting a child, but it is otherwise if the correction is immoderate and unreasonable,” which is a clear recognition that actions will lie by a child against its parents even in that class of torts.

The very first indication of any limitation upon the right of the child to recover against the parent will be found not in the common law, but in Hewlett v. George, 68 Miss., 703 ; 13 L. R. A., 682, as late as 1891, where it was held that a child wrongfully imprisoned in an asylum could not bring an action against her mother therefor. That decision does not allege that such action was prohibited at common law, but states that it is based upon the Court’s opinion of public policy.” Thus, the Court itself was making the law. That case is printed in 1 Anno. Cas., p. 132, and the notes thereto state that it was then “The only authority forbidding an action by a child against a parent.” This was followed by McKelvey v. McKelvey, 111 Tenn., 388 (1902), reprinted in 102 Am. St., 787, and in the note thereto, on p. 790, it is stated that the decision of the Mississippi Court is “the only authority prior to that ease “setting up this doctrine,” and on p. 788 (102 Am. St.), it is said that “no less celebrated an authority than Judge Cooley on Torts, at p. 171, observes that “On principle there is no reason why such action should not be maintained,” and adds that “With the utmost diligence, the only ease found prohibiting such action was the Mississippi case above cited, and that is based not upon the common law, nor upon statute, but upon the ideas of that judge as to the public policy of permitting such actions.” On the next page (p. 789) the Court says such prohibition can be asserted only by analogy to the right of a wife to sue a husband, and quotes from 67 Maine, 304, which said, as to the right of a wife to sue her husband (which has been allowed in this State for now more than half a century), that the wife cannot bring such action because “there is no necessity for it. Practically the married woman has remedy enough.” Adding that she can have a writ of habeas corpus, and if necessary, she can bring an action for divorce!

In Roller v. Roller, 37 Wash., 242 (107 Am. St., 805), 1905, it is held that “a minor child cannot sue his parent for damages arising from tort committed by the parent against the child, where the relation of parent and child exists,” but that ease which was for personal violence to *599 the child is put upon the ground of public policy, and is based entirely upon Hewlett v. George, 68 Miss., 703 , which it says is “the only one that we have been able to discover” wbicb lays down that doctrine.

In Foley v. Foley, 61 Ill. App., 577 (an intermediate court), it is stated that an action by a child for physical ill-treatment against one in loco parentis will not lie, but no authority is stated for tbe proposition, and there are numerous cases in tbe reports of such actions against those in loco parentis for brutal treatment.

In 29 Cyc., 1642, it is said, “Where the tort is purely personal to. the child, it seems that the parent cannot recover,” but the cases cited show that this means that the action must be brought by a next friend and not by the father. In 29 Cyc., 1663, it is said, “Actions by children against their parents are not to be encouraged,” citing Myers v. Myers, 47 W. Va., 487 , “unless to redress clear and palpable injustices,” citing Bird v. Black, 5 La. Annual, 189, supra, which recognized that the action lies, and added “and a minor child has no right of action against the parent for the tort of the latter,” but the cases cited for the latter proposition are, as already stated, all based upon Hewlett v. George, 68 Miss., 703 ; 13 L. R. A., 682, which originated such proposition in 1891. Yet these are the authorities and the line of reasoning upon which defendant seeks to create for its own benefit a new proposition in this State, not based on common law or any statute, that shall deprive a child of the right to sue its parent in any case whatever.

In Schouler on Domestic Relations (3 ed.), 275, note 3, it is said in the note that precedents are wanting which hold that a child could not maintain an action against its parents, and added that “the policy of the common law appears to be hostile to permitting such suits,” but no case is cited to that effect. If there had been such policy it would have been clearly enounced by numerous decisions.

Judge Gooley, in his great work on Torts (2 ed.), marginal page 171, says that “on principle, there seems to be no reason why such an action of a child against a parent should not be sustained.”

The above are the only decisions denying the child the right of action against 'parents for its wrongs that we have been able to find, and all of these refer back to the Mississippi case in 1891, and in none of them is it asserted that there is a statute anywhere or any ruling in the common law which forbade an action by a child against its parent in any respect. Certainly the Mississippi Court, in 1891, could not create the common law for this State, and there can be no prohibition of such action to redress a grievance by the child against the parent unless there was a statute of this State, or it could be shown that it was a part of the common law. The reason given in these few decisions, all of such recent date, and only in ^actions for willful injury to the child, is either that *600 (in tbe opinion of tbe judges who followed tbe Mississippi ease) sound policy forbade sucb action, or tbat by analogy to tbe prohibition formerly of actions by wives against tbeir husbands, tbe courts would not permit an action by tbe children against parents. But in view of tbe common-law reason for prohibiting wives to sue tbeir husbands, this latter argument could have no force. Besides, tbe same reason could not have applied between parent and child.

The common-law prohibition against actions by the wife against her husband — now happily universally repealed — was created solely by decisions of judges in the illiterate period when 'there was practically no statute law in England, and these judges during the formative period of the common law were, as pointed out by Pollock & Maitland and other writers on the subject, mostly priests or monks of the Catholic Church for nearly the entire period. They saw fit to lay down the prohibition of action by wives against husbands upon the ground of the unity of bus-band and wife, as stated by Adam in II Genesis, 23. the real reason, however, was the fact tbat by the customs and economical conditions of tbat age, the wife was a chattel absolutely subject to the control of the husband, and upon marriage her property became bis. Logically, therefore, if she could have brought an action against her husband for damages, the recovery would have inured to the husband. Of course, under these circumstances no action would lie. But as to the child, it was held in tbat day, as now, tbat bis property, where be bad any, was bis own, and the father could not sue to recover property or damages for the child. Even as to real estate, it was then held tbat it would descend, but would never ascend, and, therefore, the father could not even inherit from the child, and all the decisions were then, as now, that it was necessary to have a guardian appointed for the child’s property. the extent of the father’s interest therein now reaches no further than this, tbat in the appointment of a guardian, other things being equal, the father will be preferred for appointment by the court.

As to the allegation tbat there is a remedy by an indictment and not by a civil action, this was never a defense to actions against the father for embezzlement or conversion of the property of the child, both of which are indictable. In those cases, as in this, indictment would be no. reparation to the child, and besides, in this case, the injury is alleged to have been caused by negligence, and therefore the father was not even subject to indictment, and the action is, in fact, against the insurance company and not against the father.

The provision tbat no action shall lie against the company unless brought after the amount of sucb claim or loss shall -have been fixed and rendered certain by a judgment against the assured taken alone might justify sustaining the demurrer for misjoinder; but the further *601 provision in tbe policy by which the company agreed, “in the event of suit being brought against the assured on account of such action, to defend such suit, even if groundless, in the name or on behalf of the assured,” together with the allegation in the complaint, which is admitted by the demurrer, that nothing can be recovered against J. C. Small upon execution, makes in effect the defendant company and Morrison the necessary, if not the sole and real defendants in the action.

In no view can the demurrer of the indemnity company on the ground that the plaintiff cannot bring an action against her father for the tort be sustained. That in no wtóe concerns the indemnity company, whose obligation is to pay whatever damages shall be adjudged against J. C. Small, which matter, to a great extent, will depend upon whether he was or was not jointly responsible with the codefendant' Morrison in causing the accident. If there was no negligence on the part of Small, the action could still be sustained by the .plaintiff, certainly as to the defendant Morrison, if negligence was shown as against him.

To sum up, therefore, this is an action by a child injured in an automobile accident, seeking to recover damages for negligence against the insurance company upon its contract to indemnify her father for any damages caused by his negligence in the operation of his machine. The indemnity company in setting up the plea that the child cannot sue the father is not seeking to carry out the Fifth Commandment or to enforce relations between parents and children, but to exempt itself from its obligation to the father, made in consideration of his money paid for that purpose, of reimbursing him for any damages which might be-caused to any one by his operation of the machine. There is no statute and no common law forbidding the child to make this recovery to which besides it is entitled under the very terms of the contract as well as under the general law as being a beneficiary therein.

There is no provision in the common law nor by any statute forbidding the child to maintain an action against the parent in any case, and the very few decisions in this country that forbid such action did not originate in common law, or by statute, but began, as above stated, with the Mississippi decision as late as 1891, and they only imposed a restriction to the extent of forbidding actions for personal violence towards the child by the parent. Even that ruling would not apply in this instance, where the action is by the child as beneficiary of a policy for indemnity, when there is no violence exerted by the parent against the child, and the relationship is purely an incidental matter and irrelevant, by which it is sought to exempt the indemnity company from its liability upon the policy it issued to the father.

The doors of the Temple of Justice should always-stand wide open, and to every one. Least of all should they be closed to the weak and *602 “those wbo have no helper,” for most of all they need its protection. The common law, framed in a rude and illiterate age, gave to husbands the property of their wives upon marriage, but it never gave to fathers the property of their children. The common law brutally gave to the husband not only the property and personal earnings of his wife, but the right to recover and to appropriate to his own use compensation for injuries to her person and for her sufferings and her agonies, and even for the loss of a limb, because she was his property. Price v. Electric Co., 160 N. C., 450 . But the common law never gave to the father the right to sue for damages for personal injuries sustained by his child, except to recover the value of his wages until of age. Such action, then as now, must be brought by the child. There were thus radical distinctions at common law between the status of wife and child. ■

But recently in the adjoining county from which this case came a father so treated his little daughter that it was found necessary to incarcerate him in jail to save him from summary justice at the hands of his fellow-citizens. If he were a wealthy man, he might still carry his animosity to the extent of depriving her of all share in his estate. Suppose her injuries were permanent as the loss of an eye or an arm, whether she was nine years of age or twenty, should she be deprived of all compensation for the damages she has sustained simply because the wrongdoer was her father ? There has never been such a holding in the common law, nor such statute anywhere, and no such decision in this State. By what authority can the courts now create such law, and by their own fiat shut the doors of justice in the faces of the helpless, who do most need protection?

The assertion that this should be done upon the ground of public policy is not for the courts, but for the Legislature. It was upon the same plea that it was better that even unutterable wrongs should be suffered by wives and endured by the victims in silence than that there should be publicity given to the wrongdoings of husbands, which wrecked the bodies and lives of wives, and that without remedy until the act of 1913 enabled this Court to make the decision in Crowell v. Crowell, 180 N. C., 516 , followed in S. c., 181 N. C., 66 ; Dorsett v. Dorsett, 183 N. C., 356 , and by Roberts v. Roberts, supra.

There was never common law nor statute to justify the denial of legal rights to children. The courts should not create law to exclude them from justice when there has been a legal wrong. In a recent work, Pound’s Common Law, 189, it is said, “Recent legislation and judicial decision have changed the whole attitude of the law with respect to dependent members of the household. Courts no longer make the natural rights of parents with respect to children the chief basis of their decisions. The individual interest of parents, which used to be the one *603 thing regarded has come -to be almost the last thing regarded as compared with the interest of the child and interest of society. In other words social interests are now chiefly regarded.”

This ease is an attempt by the plaintiff to reverse this order and to create for - the purpose of the indemnity company a principle never heretofore existing at common law or by statute, or by decision in this State, and which will, if followed, subject all persons under twenty-one to exclusion from compensation for any injury if inflicted by those who ought to be and usually are their protectors. But while the majority of parents are kind and forbearing, the law is especially for the protection of the helpless, who are unable to protect themselves against wrongdoers.

The plea that publicity should be avoided by silencing the cries and ignoring the suffering of the helpless is not one that commends itself to humanity. Publicity and the arm of the law are what is needed for the protection of those who are otherwise in the absolute and irresponsible power o'f those who inflict injuries. "While this case is not an allegation" of a willful wrong by the father against the daughter, the assertion of the irresponsibility of the parent and his immunity against all claims of children for protection at the hands of the law should not go unchallenged.

Even if it had been true that “at law,” under the old system, the daughter could not maintain this action because her father was necessarily one of the defendants, the court of equity to “prevent a defect of justice” would have maintained the suit that the daughter should not lose the compensation for her injuries due by the company under its contract with her father. She was entitled to this, both because her father was insolvent, and because unless the action was brought in her behalf by her next friend she would be deprived of the recovery. The father could not bring an action for damages for personal injuries sustained by her even if he were not a defendant, but it must be brought by her next friend. 20 R. C. L., p. 615. He could not pay her the damages even if solvent and recover it of the company, for to prevent collusion the terms of the policy require that there must be a judgment against him, to which action the company must be made a party. It would be a most flagrant defect of justice if, under all these circumstances, this proceeding in equity by the next friend could not be maintained. - It should be held, as it is in fact, to be a suit in equity, and all the defendants are necessary parties thereto. Fisher v. Trust Co., 138 N. C., 224 ; Benton v. Collins, 118 N. C., 196 , and numerous others cited in those cases and in the annotations thereto.

It is the essential function of the courts to administer justice, and while they will not overrule a statute, they should not hesitate to overrule a precedent to attain that end when it has not become a rule of *604 property. For a stronger reason, tbe courts should never create a precedent (when there is, as here, neither statute nor precedent) upon a supposed public policy, and when, as in this case, it will deprive any one of just rights.

The wife has obtained after a long struggle the right to be heard in courts of justice against wrongs inflicted by her husband, which was denied her formerly upon the ground that “domestic troubles should not be brought into court, and therefore the victim should suffer unheard.” There was never a provision of common law or in this State which deprived the child of maintaining its right to recover for its property wasted by the father, or to a support at his hands, or for the wrongs inflicted by him, and there is no authority in the courts to create a disability now where none has existed up to this time. Justice should be done to all. The complaints of all should be heard and wrongs, if proven, redressed without distinction of race, of sex or of age.

"For justice, all places are a temple and all seasons summer.”'

The Master said, “Suffer little children to came unto me and forbid them not.” Certainly justice should not forbid them to plead their wrongs at her altar.

The demurrer should be overruled and a jury should determine whether the plaintiff has been injured by the negligence of both or either of the automobile owners, and if so, the damages she is entitled to recover. If any part of the injury is found to have been caused by the negligence of J. C. Small, the plaintiff, as beneficiary in the policy, should be subrogated to the amount of his recovery against the indemnity company.