I concur with the opinion by Mr. Justice BROWN on original hearing, and the concurrence therewith by Mr. Justice BOULDIN.
The several opinions by the majority and the dissenting opinion of our Mr. Chief Justice Gardner refer to the case of Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133. This case has been considered in 122 A.L.R. 1352 under the subject of the "Right of minor child to sue parent or person in loco parentis for personal tort." In the annotations under this subject it is said:
"In the original annotation on the present subject it is stated that 'it is generally held that no action may be maintained against a parent or one standing in loco parentis, by a minor child, for a personal tort committed by the former against the latter.' This rule finds support in later decisions, subject to modifications, subsequently, noted herein, in some jurisdictions regarding emancipated children, adoptive parents, etc., and malicious torts.
"Alabama — Owens v. Auto Mut. Indem. Co. (1937) 235 Ala. 9,177 So. 133."
This is the rule in Arkansas, California, Georgia, Illinois, Massachusetts, Minnesota, Missouri, New Jersey, New York, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia.
In 122 A.L.R. 1357 it is further declared: "And in Owens v. Auto Mut. Indem. Co. (1937) 235 Ala. 9, 177 So. 133, in which it was held that a suit by the personal representative of a deceased unemancipated minor to recover for the death of the minor due to the negligent operation of an automobile truck by his father could not be maintained against an insurance companywhich had assumed to pay any damages *Page 649 imposed by law upon insured, father of the deceased, in theoperation of an automobile truck, the court pointed out that the common-law rule precluding suits by unemancipated minors against their parents had not been changed by a statute (Code, § 5695) authorizing personal representatives to maintain an action and recover damages for injuries causing the death of a minor child, although such statute did not contain the proviso of § 5696 of the Code, reading: 'If the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death.' "
This sound public policy and right construction of our statutes and decisions in the foregoing opinion by Mr. Justice BROWN, and in the concurrence therewith by Mr. Justice BOULDIN, conforms with my present view. I believe that holding will not be found in conflict with the decision in Owens v. Auto Mut. Indemnity Co., supra, when given careful consideration.
It may be there are expressions in our decisions that are not in absolute harmony, or in conflict. Witness the cases of Ex parte Adams, 216 Ala. 241, 113 So. 235, and Bruce v. Collier,221 Ala. 22, 127 So. 553. As I understand these two cases are in conflict and the last expression of this court was by Mr. Justice BOULDIN as appears from a careful consideration of his opinion in Bruce v. Collier, supra.
Suffice it to say here, however, I concur with the opinion of Mr. Justice BROWN.