Arritt v. Fisher

*420 "Wiest, C. J. Plaintiff’s concession that defend- ant was not guilty of gross negligence or wilful and wanton misconduct bars this action. An act or omission by a host occasioning personal injury to a guest passenger in an automobile, unless by reason of gross negligence or wilful and wanton misconduct of the host, does hot constitute an actionable wrong. 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446) the so-called “guest statute.” Under a guest statute of like purport it was so held in Shiels v. Audette, 119 Conn. 75 (174 Atl. 323, 94 A. L. R. 1206). We quote: “The question presented by the demurrer is whether General Statutes, § 1628, applies to the parent of a minor child suing for loss of services and expenses, et cetera, for injuries sustained by the child while being transported as a guest in a motor vehicle. When a minor child is injured by the negligent act of a third party, two causes of action immediately spring into existence; first, the right of action by the child itself for the personal injuries inflicted upon it; and second, a right of action to the parent for consequential damages, such as loss of services and expenses, caused by the injury to the child. The right of the parent to recover is independent of the right of the child, and the judgment in an action brought by the child would not preclude the parent from recovery in an action brought by him unless some such circumstances existed as in Kenure v. Brainerd & Armstrong Co., 88 Conn. 265, 267 (91 Atl. 185), where a father broug'ht the action as next friend of his daughter ánd the entire damages were claimed in it. The parent is not regarded in law as either a party or privy to an action brought by a child and hence is not bound by the judgment thereunder. Nevertheless, an essential element of the cause of action vested by law in the parent is that the compensation recoverable by him for ex *421 penses flows from a personal injury for which, under the law, the child would be entitled to recover compensation. Proof of that fact is an essential prerequisite to recovery. If the child was not entitled to recover compensation for his injury, there can be no recovery by the parent. ‘If the injury occurs under such circumstances as do not give the child a right of action for personal injury, the father cannot recover.’ Thibeault v. Poole, 283 Mass. 480, 485 (186 N. E. 632). This principle prevails generally. Callies v. Reliance Laundry Co., 188 Wis. 376 (206 N. W. 198, 200, 42 A. L. R. 712); Tidd v. Skinner, 225 N. Y. 422, 432 (122 N. E. 247, 3 A. L. R. 1145); Vorrath v. Burke, 63 N. J. Law, 188 (42 Atl. 838); Winner v. Oakland Township, 158 Pa. 405, 410 (27 Atl. 1110, 1111); Wueppesahl v. Connecticut Co., 87 Conn. 710 (89 Atl. 166); 46 C. J. p. 1303. “An act or omission of a person which causes a loss of the services of a minor child to a parent or necessitates expenditures to cure an injury done to the child, entitles the parent to recover damages when it appears that the act or omission is one which the law holds to be a legal wrong. There may be instances where an act or omission may constitute a legal-wrong to a parent although the child would not have a cause of action; perhaps this would be so where the child, by consenting to the act, would be debarred of a remedy, but such consent might not be binding upon a parent. But in such a case as this, where the basis of the claimed wrongful conduct is the failure of the defendant to take certain steps to prevent the child from suffering injury, the parent cannot recover unless that failure constituted a legal wrong to the child. Section 1628 of the General Statutes deprives a guest in a motor vehicle of any right of action against its owner or operator arising out of an accident unless that accident was intentional on the part of the owner or operator or was caused by his reckless disregard of the rights of others. Unless the conduct of the owner or operator falls *422 within the terms of the statute, it does not constitute a legal wrong to the guest and hence, if that guest be a child, cannot be the basis of a recovery by his parent for services lost or expenditures incurred because of injury suffered by the child. ’ ’ In Hall v. Royce, 109 Vt. 99 (192 Atl. 193), a minor was a guest passenger and two tort actions were brought; one in behalf of the minor for personal injuries and the other by the father for expenses incurred. The court held: “So far as the defendant Royce is concerned, it is quite apparent that the suit must fail, unless there was evidence fairly and reasonably tending to show that she was grossly or wilfully careless. For of such, alone, consists the right of action of a gratuitous guest. P. L. 5113. Nor does her father stand any better here, for his right of action, if he has any, while independent of hers, in some respects, see King v. Viscoloid Co., 219 Mass. 420 (106 N. E. 988, Ann. Cas. 1916D, 1170), is founded upon the same breach of duty as that sued on by the minor. And if the latter cannot recover the parent cannot. Thompson v. United Laboratories Co., 221 Mass. 276 (108 N. E. 1042, 1043); Regan v. Superb Theatre, Inc., 220 Mass. 259 (107 N. E. 984); Central Ga. R. Co. v. Robins, 209 Ala. 12 (95 South. 370); Callies v. Reliance Laundry Co., 188 Wis. 376 (206 N. W. 198, 42 A. L. R. 712, 715); Shiels v. Audette, 119 Conn. 75 (174 Atl. 323, 94 A. L. R. 1206, 1208), and note.” The judgment is reversed without a new trial, and with costs to defendant. Btjshnell, Sharpe, Chandler, ' and North, JJ., concurred with Wiest, C. J.