On appeal from the Supreme Court.
For the appellants, Samuel P. Orlando.
For the respondent, David L. Horuvitz.
The opinion of the court was delivered by
PERSKIE, J. Respondent, plaintiff below, an unemancipated infant of nineteen years of age, was a passenger in an automobile owned by her stepmother and operated by her father. The latter, defendants below, are the appellants here.
The claim was that respondent sustained injuries as a result of the negligent operation of the car by the father while it was being driven over an S shaped bridge near Baltimore, Maryland, on April 20th, 1930. The suit was commenced on September 23d, 1933, and filed on November 28th, 1933. At the time of this suit respondent was over twenty-one years of age and fully emancipated. The trial judge refused to nonsuit or direct a verdict. He submitted the case to the jury and the latter returned a verdict of $6,250 in favor of the respondent and against the appellants. It is the judgment, based on that verdict, that is the subject-matter of this appeal. The evidence fully supports the jury's finding of actionable negligence and emancipation.
The sole question, therefore, requiring decision is whether a child, who has attained majority and has become emancipated, may sue parents for an injury which occurred during the unemancipated infancy?
The answer to this determinative question, however, gives immediate rise to the basic query, namely, may an unemancipated
infant sue parents, in tort, for actionable negligence which occurred during such infancy?
Of recent years this type of suits have greatly increased in number. This is undoubtedly due to the many automobile cases; and even more so, perhaps, it is due to the common practice of automobile operators and owners carrying liability indemnity insurance to protect themselves against the civil consequences of actionable negligence.
The two questions are so interdependent that it is advisable, if not altogether necessary, even at the risk of being characterized as obiter dictum, of considering and deciding the basic question stated as aforesaid.
The law of Maryland, where the accident occurred was not proved. The inference therefore is that the common law still prevails ...