Cathy Lou Baker, a minor, 15 months old, by her next friend, Nadeane Baker, her mother, filed this suit against her father, defendant George Baker, to recover $15,000 damages for personal injuries alleged to have beеn sustained while her father in backing his car out of the driveway at the home negligently backed the ear into and upon the body of Cathy Lou. It was alleged in the petition that the defendant was fully insured with M. F. A. Mutual *455 Insurancе Company for any liability and any judgment against the defendant would have to be paid by the insurer.
Plaintiff’s petition charged that defendant’s car was parked in a driveway in the yard at the family home; that plaintiff was near the car, was able to walk, and frequently and habitually followed her father, the defendant; that plaintiff greatly enjoyed riding in the car and would make an effort to go along whenever the ear was taken; that defendant knew all of these facts and knew of plaintiff’s presence ; that the "defendant negligently backed the car and injured plaintiff.
The defendant filed a motion to dismiss the petition on thе ground that it failed to state a claim oñ which relief could be granted. The trial court sustained this motion and plaintiff: appealed.
The basic question presented is whether an unemancipated сhild may maintain an action in tort against its parents. The general rule, without doubt, is that such a child may not sue the parent in tort. 67 C.J.S. 787, Sec. 61 (2);
The two principal reasons assigned for denying the child a right to sue are thаt under the common law no such action could be maintained and that such suits are against public policy for the reason that to permit such actions would disturb the family relationship.
To say a child may nоt sue its parent in tort is stating the rule too broadly. Many cases may be found where such suits have been permitted. We also find extreme views on the subject. For example, in the case of Hewlett v. George,
The above holdings have been severely criticized in many subsequent cases and not without reason. See Cowgill v. Boock,
“Nevertheless, there do exist, in our opinion, some factors and considerations in connection with the parent-child relationship which justify some immunity of the parent to suit. If those factors and considerations are properly identified and understood, the appropriate scope of the immunity rule will become apparent.
“Parenthood places a grave responsibility upon the father and mother. It is their duty to rear and discipline the child. In rearing the child, the parents must provide a home and perform tasks around the home and on the premises. In most cases it is necessary or convenient to provide a car for family transportation. * *■ *
“In order that these parental duties may adequately be performed, it is necessary that the parents be not subject to the risk of suit at the hand's of their children. If such suits were commonplace, or even possible, the freedom and willingness of the father and mother to provide for the needs, comforts and pleasures of the family would bе seriously impaired. Public policy therefore demands that parents be given immunity from such suits while in the discharge of parental duties.”
In Cowgill v. Boock, supra, liability was sustained where a father had ordered his minor son to ride in a car operated by the father; the car was driven over a cliff and both the father and son were killed. The court, in holding the administrator of the child’s estate could maintain an action against the father’s estate, based its decision on the theory that the conduct of the father was more than mere negligence. Note what the court said at page 412, 19 A.L.B. (2d), Headnote 12: “In our opinion thе decedent-father was guilty of wilful misconduct. ’ ’ The evidence was that the father was intoxicated and very boisterous. Again, at page 414, Headnote 14, the court said, “We appreciate full well that it is a wholesome rule and that it should be the policy of the law to preserve and maintain the security, peace and tranquility of the home, which indeed is the very foundation upon which our government rests. It is unthinkable that a parent, while acting within the scope of domestic relations, should be brought into court to defend against every unintentional personal tort that might be committed against a minor child. ’ ’
In Dunlap v. Dunlap,
It will be noted that in all of the cases above-mentioned the courts recognized the rule of law that a parent is not liable to an unemancipated child for injuries sustained by the child through the negligence of the parent while acting within parental authority or duty.
*457 In Borst v. Borst, supra, the father was on a business venture. In . Cowgill v. Boock, supra, the tort was wilful and malicious, and in Dunlap v. Dunlap, supra, the relation was master and servant and not parent and child.
We do not have any of these exceptions in the case under сonsideration. At .the time the child (plaintiff) was injured, the father was attempting to back the family ear off the home' premises. The petition contains no allegation indicating that the unfortunate occurrence was caused by anything more than mere negligence. In such a situation, we are of the opinion that the rule of immunity must be applied. As indicated in the case of Borst v. Borst, supra, wherein the court in speaking of a father’s duties, said, “In most cases it is necessary or convenient to provide a car for family transportation.” Plaintiff alleged in her petition “that plaintiff greatly enjoyed riding in defendаnt’s automobile.”
Plaintiff cited Wells v. Wells,
“The evidence shows beyond question that defendant, in her furious wrath over what amounted to nothing more than a breach of decorum, subjected the child to an unusual form of punishment of such severity and brutality as to shock the conscience of any reasonable and humane person. State v. Koonse,123 Mo. App. 655 ,101 S.W. 139 . The assault was wicked and criminal, and, assuming that defendant stood in the relation of а parent to plaintiff, she should answer for the damages resulting from such excessive punishment. ’ ’
That case does not sustain the holding in the Wells ease, supra. After the Wells case was decided, the Springfield Court of Appeals, in the case of Cook v. Cook,
In no case cited and reviewed has a court held that an unemaneipated minor child may recover in a tort action against its parents where the action is based on mere negligence. In eaсh case where a suit by a child against a parent was maintained, the court found some reason to malte an exception. For example, the situations presented wilful, malicious conduct, mаster and servant relationship, or parent engaged in business venture. We, by this opinion, do not intend to approve or disapprove any of the particular cases referred to in this opinion. Whаt we do hold is that plaintiff’s suit in this case cannot be maintained for the reason that to do so would be against public policy. Such a ruling is supported by all of the authorities above cited.
The secоnd question presented is, does the fact that the defendant was insured make any difference
¶
We rule that it does not. There are eases which hold that insurance does remove the immunity. For cases so holding, see 67 C.J.S. Sec. 61, p. 789. Many other cases rule that nonliability is not affected by insurance. See Lund v. Olson,
In this state, we have ruled that insurance carried by a charitable institution does not change the statе’s public policy of non-liability of such institutions in tort actions. See Dille v. St. Luke’s Hospital,
The trial court correctly ruled in dismissing plaintiff’s petition.
The judgment is affirmed.
PER CURIAM: — The foregoing opinion by Wbsthues, C., is adopted as the opinion of the court.