The opinion of the court was delivered by: Legge, Justice.
On February 5, 1955, a collision occurred in the City of Lancaster, South Carolina, between two automobiles. One was owned by George F. Parker, a youth of eighteen, who was driving; and in it also was his father, B.L. Parker, seventy-seven years of age, who at the time was concededly a guest-passenger within the meaning of Section 46-801 of the 1952 Code. As the result of the collision B.L. Parker sustained injuries from which, on the following day, he died.
Nannie B. Parker, the widow of B.L. Parker, as administratrix of his estate, brought this action against George F. Parker seeking to recover damages for his death, which she alleged had been caused by the gross negligence of the defendant in the operation of his automobile. George F. Parker, answering by guardian ad litem, denied negligence, pleaded contributory negligence and joint enterprise, and further, that the action could not be maintained because at the time of the accident he was an unemancipated child of plaintiff's intestate.
During the trial defendant's motions for nonsuit and for direction of verdict upon the ground, among others, that the only reasonable inference from the evidence was that he was an unemancipated child were denied. The jury having found for the plaintiff in the amount of five thousand ($5,000.00) dollars, defendant, upon the ground before stated, moved unsuccessfully for judgment n. o. v. By a single exception, he now challenges the court's ruling on the motion last mentioned.
Under the general rule, recognized in this State, an unemancipated child has no right of action against the parent for personal injuries caused by the parent's negligence. Kelly v. Kelly, 158 S.C. 517, 155 S.E. 888.
The rule is founded in public policy, being based upon society's interest in the preservation of family unity and harmony and parental discipline. 39 Am. Jur., Parent and Child, Section 89. Like consideration forbids action for a personal tort by the parent against the unemancipated child. Ibid., Section 92; 67 C.J.S., Parent and Child, § 61 (a).
In the absence of infirmity of mind or body rendering the child unable to take care of itself, and requiring it to remain with the parent, emancipation is effected by operation of law when the child attains majority. Emancipation during minority results not from any act of the child alone, but primarily from agreement of the parent, which may be either express or implied. It may be either partial or complete. If partial, it frees the child for only a part of the period of its minority, or from only a part of the parent's rights, or for some special purpose, such as the right to earn and spend its own wages. If complete, it completely severs the parental relationship so far as legal rights and liabilities are concerned. Whether or not a minor child has been emancipated depends upon the peculiar facts and circumstances of each case, and is, therefore, generally a question for the jury. Emancipation of a minor child is never presumed, and the burden of proof is upon him who alleges it. 39 Am. Jur., Parent and Child, Section 64, pp. 702-705; 67 C.J.S., Parent and Child, §§ 86, 89, pp. 811, 815.
Partial emancipation will not suffice to remove the bar to a tort action by a minor child against its parent for injuries sustained by reason of the latter's negligence, or to like action by the parent against the minor child; such actions are not maintainable in the absence of complete emancipation. Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472; Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170.
Cafaro v. Cafaro, supra, cited by appellant, was an action by a mother against her nineteen-year-old son for personal injuries alleged to have been sustained by her as the result of his negligent operation of an automobile. The uncontroverted facts appeared to be: that the family consisted of the parents, three daughters and the infant defendant, all living together, the parents conducting a grocery business on the home premises; that the defendant had been employed for a year or more at a nearby industrial plant; that while so employed he lived at home and gave all his earnings to his mother, who handled the family finances, and she gave him a weekly allowance of two or three dollars for spending money; that some two weeks before the accident the defendant's employment had terminated because of a strike, and he thereafter served his parents in the grocery business, receiving the same spending allowance as before. On these facts, a closely divided appellate court upheld the trial court's order of nonsuit upon the ground that the evidence conclusively showed non-emancipation. The author of the opinion points out that the scintilla doctrine does not obtain in New Jersey.
In Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097, L.R.A. 1916 B, 111, where an eighteen-year-old son, living at home with his parents, had for two years collected his own wages and kept or spent them as he pleased, though he paid his parents for his board, it was held that complete emancipation could not be inferred from those facts alone.
In Groh v. W.O. Krahn, Inc., 223 Wis. 662, 271 N.W. 374, testimony that the plaintiff, a young man almost twenty-one years old, though living with his father, paid for his room and board, came and went as he pleased, made no accounting to his father of his earnings, and was expected to provide for himself, was held sufficient to support the jury's finding that he was emancipated and entitled to maintain an action against his father for injuries as a guest-passenger in an automobile driven by his father. In that case the father testified to the facts above stated and also that it was his intention that his son should be his own master and responsible to himself alone.
In the case at bar the surviving parent, defendant's mother, who as administratrix of her husband's estate was the plaintiff, did not testify. Nor did the defendant. The only witness on the issue of emancipation was an elder brother of the defendant, one Mitchell Parker, who was ...