Story Case

Edward Neely unreasonably abused his son, Charles, who was fourteen years of age. Charles started a law suit against his father, through an action brought by an adult friend, to recover damages for the injury suffered. The father admitted that there was unreasonable punishment. He maintained however that the son could not recover because of the relationship of father and son. Is this a good defense?

Ruling Court Case. Nellie Mckilvey Vs. W. J. Mckilvey, Volume 111 Tennessee Reports, Page 388; Volume 64 Lawyers' Reports Annotated, Page 991

A minor child, by her next friend, brought this action 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.

Mr. Chief Justice Beard, in the opinion of the Court said in part:

"At common law the right of the father to the control and custody of his infant child grew out of the corresponding duty on his part to maintain, protect and educate it. These rights could not be forfeited by gross misconduct on hi part. The right to control involved the subordinate right to restrain and inflict moderate chastisement upon the child. In case parental power was abused the child had no civil remedy against the father for the personal injuries inflicted. Whatever redress was afforded in such cases was to be found in an appeal to the criminal law and in the remedy furnished by the writ of habeas corpus."

It was decided by the Court that the child could recover nothing of her father in this action.

Ruling Law. Story Case Answer

At common law a child has no civil remedy against its parents, however unjustly it may be treated and however great damages it may suffer at the hands of its parents. Probably the reason for this is to be found in the fact that policy forbids giving to an infant such a right. If children were given this right many actions would be brought against parents without cause and reason. The result would be to undermine and render feeble the parental control over children.

However, it is to be noted that the parent may not inflict cruel and unjust treatment upon his children and go with impunity. The father because of such conduct, may be deprived of the custody and possession of his child. If his conduct is malicious or aggravated, he may be punished criminally therefor.

In the Story Case, therefore, the son Charles cannot recover any thing in an action against his father altho the father abused him.