*1 that certain offenses, by implication provides traffic for sheriffs) for arrest powers have (including deputy officers This territories. appointed their outside these offenses terri- specific the statute’s compelled interpretation However, officers. municipal torial restriction has power officer municipal law even common under situa- pursuit” a "hot limits when city his arrest outside Park, College City Shirley v. tion exists. reasons, officer these For both the pursuit. to conduct authority had
here 1, the court did in Division However, for the reason stated summary for motion the defendants’ denying err judgment. JJ., Quillian, concur. Pannell
Judgment affirmed. 5, 1972. Argued December 1972 Decided November Chilivis, Blasingame, Gary B. Erwin, & Epting, Gibson for appellants. Sartain, Jr., B. Carl Joe B.
Greer, Carey, & Sartain Buice, appellees. for et al. ESCHEN v. RONEY
47452. 22, 1972 September September Argued 14, 1972 Decided 6, Rehearing denied December Jr., Reichert, Reichert, Albert P. Anderson, & Walker appellant.
Harris, Watkins, Davis, & Joseph Russell H. for appel- lees. Does the doctrine of Judge. "parental immunity”
Clark, apply tort to third-party question cases actions? That presented in this case which had its when a inception mi- *2 nor plaintiff, John Roney, personal injuries W. received while a a riding passenger as car owned by his mother, K. Roney, being by sister, Mrs. June driven his which had a collision with an automobile driven Lois W. Eschen. The instant filed by suit was the minor through his friend, mother as next to which defendant filed an answer denying negligence. third-party She also instituted a action under family-car doctrine "for judgment against over defendant, third-party Mrs. June K. Roney, for contribution for all adjudged sums which against her1.”As such defendant, third-party Roney Mrs. made a motion to dis- being miss based her an upon son unemancipated minor who could not sue his for negligence. mother This appeal is from a judgment that motion to sustaining dismiss.
The trial court is upon authority sustained of Shell v. (188 Watts,1 125 App. 269), 542 SE2d case quatuor a pedibus currit to that sub judice, differing as to con- sanguineous connection in that involved inter-spousal a immunity under third-party complaint. In Headnote 6 Judge Randall many Evans wrote: "It has been times held public policy prevents this State suits between family, members a such as an unemancipated child against a or wife parent, against husband, as such suits tend to disrupt family tranquillity. v. Bulloch, Bulloch (163 45 Ga. 708); Wright 1 SE App. Wright, v. 85 Ga. App. (70 721 152); Stapleton Stapleton, SE2d v. 85 Ga. App. 156). Further, 729 SE2d a general it is rule that one cannot do indirectly that which the law does not allow done directly. To allow the defendant Shell judgment to have against for Watts all adjudged against sums him Watts’ other grounds by
1 Reversed on Court Supreme 265). Shell Watts, 229 Ga. SE2d 474 to sue Watts’ wife allowing tantamount wife would be the mo- sustained properly The court in tort. her husband Watts complaint the third-party tion to dismiss marital contribution because could be no there because (1) (92 Heyman, App. 19 Ga. Heyman v. immunity. See (3) (177 SE Chastain, App. 50 Ga. 25); Chastain v. SE 828).” Brewer, App. 122 Ga. Co. v. also Southern R. See of the argues analysis appellant for
Scholarly counsel Bulloch, supra, in Bulloch v. this court given by reasons Georgia rule in immunity” "parental establishment in the apply shows should policy a matter of public ratio- legal this further He supplements instant situation. constituting exceptions by those cases supported cination Farrar, 41 Ga. Farrar v. doctrine. These are: such child after 278), emancipated which dealt with Wright, Wright v. reaching majority; authority forfeited its the parent where tort; Stapleton, Stapleton by wilful *3 (70 156), parent’s the child to sue permitted which SE2d do not here. apply These cases employer. wherein the attention to two cases
Counsel also calls our
for the Fifth Circuit
Appeals
Court of
United States
(Erie
Tompkins,
the Erie doctrine
R. Co. v.
with
compliance
1487))
1188, 114 ALR
817, 82 LE
ing the existence of liability insurance, quoted but from the Bulloch case that liability insurance would be irrelevant. In light of this Georgia ruling, Cordle, Barnwell v. F2d undertook "to review the development of the Geor- gia doctrine of parental immunity and the foundations which support so, it.” P. 238. In doing the Federal court dealt with those exceptions which already mentioned in this opinion, and concluded there awas cause of action for the benefit of a permanent quadriplegic2 minor "which he prevented from converting into a judgment for how- soever long his father lived because of the doctrine of pa- rental immunity.” P. 241.
The Federal appellate
have been influenced by
a nation-wide trend towards abolition of
im-
munity doctrine3 but the Court of Appeals of Georgia does
indulge
"judicial legislation.” For example, Stovall &
Tate,
834)
Co. v.
declined adop-
2 As
hold
our Fifth Circuit
Judges
high regard and
respect,
would
be lese majeste to comment "hard
cases make bad law?”
Briere,
See Briere v.
107 N. H. 432
A2d
*4
(1966);
(Mo.
Brennecke v. Kilpatrick,
tion Grady Henry legislature. for the a matter being ucts as 329), Best v. Sturgis, Hotel Co. v. 496) Atlan- Hyde State, 232) are further Co., 112 Ga. tic Steel not to en- that we are recognizing of our court illustrative is an es- Where there domain.4 legislative upon croach enunciated as this court doctrine such legal tablished of this Bulloch, public policy "under supra, Bulloch v. con- and it has been laws” State, public expressed as change as regard any thirty years, for sistently followed legislature. matter for the being a J., Panned, Quillian Eberhardt, P. Judgment affirmed. Bed, JJ., Had, J., specially. P. concurs Evans, concur. Stolz, JJ., dissent. J., Deen and C. Rehearing.
On Motion
for
rehearing appellant’s
In his motion
Judge.
Clark,
adher-
our
argues his abhorrence
attorney ardently
able
in persuading
decisis. He has been successful
ence
stare
original
his
Deen to withdraw
Judge Braswell
colleague
our
our
dissent,
practice
which under
and file a
concurrence
into a full court decision.
converts this case
in leg-
no hesitation
have
recognize
jurisdictions
some
We
hitherto
regarded
have
litigation. Those courts
islation
immunity as
such as intra-familial
legal doctrines
accepted
be discarded.
anachronisms which
being
should
has not been
past
from the wisdom
departure
Such
im-
example dealing
parent-child
An
universal.
the late
A
was stated
view
which we subscribe
Georgia Supreme
Hugo
affirming
L. Black in
Justice
(165 SE2d
Abney,
of Evans
The North Carolina court’s research developed the same conclusion our in that no study, state totally has reached abrogated parental immunity even though minority states have modified the doctrine. gener- Even those states ally such express being modifications as exceptions immunity rule. After out that such pointing modifications would create problems inequities more and cures, than it the North Carolina court graphic uses this language: "piece- meal abrogation of is, established law judicial decree like a partial amputation, ordinarily unwise and usually unsuccessful.” P. 484.
To this court the rule stare is salutary decisis because it preserves harmony and stability the law re- quires "in determining a case the court con- is not be, cerned with what ought the law but its sole function law, is to declare what the applicable to the facts State, case, Shaw is.” CJS 187. As was said § 247, 253, utility "It of more have the practical con- open it remain so than to new law settled let structions, may appear, however obvious such constructions decisis may change. as the of the court Stare personnel and conservatism is the practice, preserva- conservatism experience tion of which comes from the the wisdom great Logan Bleckley The Chief Justice who is past.” dissent, said in his concur- quoted colleague’s our himself *6 State, 629, in Blair v. 631 SE ring opinion that . .it to me to be violative proceeding] appears [the yield authority purpose of but I and do to principle, of my adjudications follow own head wiser judges.” hope permit
Let us this court will never its decisions to "into the railroad tick- placed same class as restricted et, good day only,” quote for this and train the apt phrase of Justice Owen J. Roberts in his dissent in Smith 649, 757, 987, v. Allwright, 321 U. S. SC 88 LE 1110). 151 ALR
'"Very weighty considerations underlie the principle courts should not lightly past Among overrule decisions. desirability these the law furnish a clear guide individuals, for the of conduct enable them to their plan affairs with assurance against surprise; untoward the im- of fair and portance furthering expeditious adjudication by eliminating relitigate the need to every proposition relevant case; in every and the necessity maintaining faith public in the judiciary as source impersonal reasoned judgments. The reasons for rejecting any established rule always must be weighed against these factors.’ Moragne Lines, 375, 1772, States Marine 398 U. S. SC 339).” Crystal Roach, LE2d Springs Bleachery v. The opinion recognizes writer this a simple disposition of appellant’s request for deviation from the doctrine stare would denial decisis have been of the motion for re- hearing authority Co., on the of Frazier v. Southern R. 774): by "Decisions the Court of establish a for that court and for the Appeals precedent courts, superior disapproved by Supreme unless Court or by subsequent statutory made obsolete enactment.” Such determination, however, easy contrary would be to the zeal I dedication which have observed in the conduct of my eight colleagues during the time I have been privileged serve on this bench. Their earnest consideration of all points submitted by lengthy opinions counsel result that Georgia’s attorneys but the result who undertake necessary research for the cause their clients know their arguments are fully though considered even our decisions may be adverse to their contentions.
Judgment rehearing adhered to and motion denied. (Upon rehearing original special concurrence Judge Deen was withdrawn and a dissenting opinion filed brought him. This about consideration the full court. Upon such consideration the additional opinion pre- pared by Judge Clark. Thereupon the motion for rehearing was denied and the judgment adhered to with Presiding Eberhardt, Judge Pannell, Quillian Judges and Evans con- curring. Presiding Judge Hall filed a special concurrence in *7 the affirmance. The dissent of Judge joined Deen was in by Judge Stolz, who also filed an additional which opinion, Bell.) special joined dissent was Chief Judge Presiding Judge, concurring specially. Speaking of Hall, intra-family immunity, aptly Prosser has said: topics "Few torts, in the of economic, law in view of modern social and legislative changes, display in their greater treatment in- consistency and more unsatisfactory reasoning.” Prosser on (2d Ed.), p. Torts 101. See also 41 ALR3d 904-980. § Stare practical decisis has utility but is hardly reason to refuse to judge-made reconsider law based on public policy, which is among the most of concepts. mutable "Ad- herence to precedent must ... be the rule rather than the exception [However], . . . few rules in our time are so well established that they not may be called upon any day to justify existence as means to an adapted end.” Cardo- their zo, The Process, Nature of the Judicial 98. It can pp. be for the immun- reasons stated that few of the classical said litigation of modern to the realities any relevance ity have another One commentor after family in the area. attempted tranquility, reasoning of domestic attacked the policy has It is family exchequer. depletion control here. arguments to rehash the necessary for rationale does exist a viable The real issue is whether this we must To answer immunity. the continuation insurance. It liability squarely subject face also no legal because to call it irrelevant begging question to use intellectually and it dishonest liability pre-exists; than, more at liability to create without bootstrap it as a of it. best, a mention passing that actions between
Realistically, negligence we know or would parent spouses child and between unemancipated ever, there were insurance. We brought if be unless rarely, the vast bulk of frankly acknowledge should (with, acting one "friendly” e.g., parent would be suits other) and all the possibilities friend next whether, we must ask is present. collusion would be What dockets, already crowded court intolerably in view ready and the avail- liability cost of insurance oppressive against family of insurance ability protection other forms add one more loss, expensive, time-consuming, we should adversarial-in-form-only One system. our proceeding liability; but intra-family modern trend be to allow trend, of greater significance another modern much inap- is to eliminate certain judicial system, survival of our Frank, law from the courts. See areas propriate (1969). The Case for Radical Reform American Law: angle another insurance from Considering liability declaration judicial ought perfectly apparent automatically re- coverage will significantly increasing only way The premiums. in a over-all increase steep, sult *8 the insurance encourage be to to avoid this result would policies then offer make actuarial studies and to companies for a ex- premium, lower opt, in which the insured This, however, requires coverage or vice versa. family clude at least decent notice to the companies and undoubtedly in changes some our insurance statutes. The result other- is manifestly wise unfair people those who: have pro- life, vided their health, accident, and disability insurance; have absolutely no desire to engage in an intra- family lawsuit to compensated loss; become and who do pay care to higher rates for automobile or homeowner’s insurance for the benefit of those who do not either care one way have, or another or who most likely, given no at thought all.
There is also another
in
problem involved
considering
immunity both in this case and in
predecessors.
its
We
have tended to forget there are two kinds of stare decisis.
precedent
One is
in the common law and is subject to much
greater
flexibility
changing times. American Broadcast
ing
873).
&c.
Simpson,
v.
SE2d
The other is judicial interpretation of a statute which then
integral
becomes an
part of the statute and is subject prop
erly
legislative change alone. See Gulf C. & S. F. R. Co.
Moser,
729 DeJarnette, 664 The case of Cox v. holding here. It held not in conflict with our is in was immunity Georgia charitable the doctrine of merely from but charity to render the immune suit depleted by are not "charity trust funds see If a charity P. 670. liability negligence.” subjection purpose insurance for sole purchase liability wishes to negligence to cover its non-charity trust funds of providing persons, why any interpose to third should actions as objection? its contribution, I am aware problem
As to the immunity doc- inequitable applying result apparent percent negligent 90 you hypothetically trine when have other However, many is one of instances this parent. cannot be reached for contribution. joint where a tortfeasor law and the insolvency. Georgia A Both example is prime Act Among recognize Contribution Tortfeasors Uniform is limited to right persons that the contribution principle hold liable Southern R. injured personally. whom the could 665); A. Brewer, 122 Ga. 9 U. L. Co. v. "recognized practical This is principle applied 156. 1003; the United States. 19 ALR2d unanimity” throughout 1107; hastily change 60 ALR2d To the law 34 ALR2d 1368. in to achieve a more means of liability equitable on order opposing contribution a backward The two approach. another. For rea- against must be balanced one ideas above, law on fam- present I must adhere to our sons stated demonstrate that ily immunity. experience Reason and still their existence. precedents justify these Deen, Judge, dissenting rehearing. presents on This case and reaches the same conclusion the same factual situation States, 45, 48. There FSupp. as Emmert v. United a car owned the minor fa- by plaintiffs’ collision between ther and owned the U. Government resulted vehicle S. action the children the United States as com- third-party filed a sole defendant. The United States who the vehicle operating the father plaint against Holding that the "doctrine riding. which the were plaintiffs in Tennes- firmly entrenched intra-family immunity complaint, pointing the third-party see” the court dismissed have con- however, significantly that other out, jurisdictions For disfavoring example, the doctrine. tinued the trend Gelbman, N. Y. 2d 434 NE2d Gelbman overruling an abolished the defense expressly New York case, N. Y. 2d 472 Badigan Badigan, earlier my and in This court could NYS2d NE2d my I stated in dissent should do the same. As opinion 265): Gardner, 115 Harrell v. *10 mere fact of relationship "It obvious that the thus becomes litiga- to to the deny any party not of itself sufficient to is under the law.” right tion a which he otherwise has We law, judge-made here not with statute law but with dealing entirely Legislature and cannot the blame on the lay following when we in anachronistic notions. persist doing exactly In to me that we are appears this case majority opinion rightly says what the cannot be done: that is, indirectly to done what cannot be done di- allowing be mother, Let us that the Mrs. Ro- rectly. plaintiff’s assume the ney, negligent injured was 90% in the collision that he can and does plaintiff. prose- minor Let us assume to Eschen and judgment against cute this case recovers from an ac- damages. 100% of his Since Eschen is barred Roney, tion for Mrs. he is denied re- contribution for which he not covery judgment of the 90% the liable, fault, 10% at theoretically having only been Roney, therefore John who could not have recovered this directly sum from his mother has nevertheless restored it to family treasury by recovering the the indirect method of recourse, fault, although from one who has no the as well the was intra-familial. injury, If, Roney sue Mrs. for con- judgment, after Eschen should tribution, might I like to assume that this be done should lawsuits, involving more than one because with two neither member, hold that the family might "family this well not disturbed two members di- tranquility” pitting However, other in the action. in rectly against each same Brewer, R. Co. v. holding view the Southern joint that a means one tortfeasor jointly original plaintiff, who be sued this is to obviously lengths untenable. As which the carried, Brown, can immunity doctrine be see Horton v. 489). Ga. Co., & Bleckley Bkg.
Justice observed Ellison v. Ga. R. 809): SE "With these exalted tribunals only judge judges, who live rule of stare decisis not a canon of the public good, but a law of self- Nevertheless, preservation. . . without detriment serious themselves, or public peril they can and do admit then, reserve, now and with cautious they have made Indeed, . mistake. . reversion to truth in some rare in- highly necessary stances is to their permanent well-being.” The Supreme Georgia recently Court concurred that "the doctrine of not stare decisis should be followed to the extent that error may perpetuated.” Reeves, Humthlett v.
The law is not a dead-end street. Courts are bound Constitution, statutes, judicial but precedents, it would be than to say judicial less honest precedents may re-examined, never be and the legislature should *11 every instance be blamed because has not corrected judi- error, cial which I consider the present types application of "family harmony” of the doctrine to Ibe. am not even sure that our own precedents do more than the decision uphold in this case in the I general way; most do not they believe constrain I us what feel to be v. palpable injustice. Shell (188 269) Watts, 125 Ga. 542 been re- App. having Supreme versed Court need be of no concern to us. Let us 6 upon examine authorities which Division was 708) (163 Bulloch, 1App. based. In Bulloch v. 45 Ga. SE held that a minor not age was under the 14 could file action for pain suffering against his father due to sim- ple negligence given on the of the latter. The reason part control, was that the child was under and the his father’s father was for maintenance under Code responsible his 732 public pol- under 74-104, 74-105, and that therefore
§§ laws” such public "as declared of this State icy father in an the action his bring not child could I under his control. and still remain proceeding adversarial con- of the case when disposition with this quarrel have no immediate framework. fined its (177 241 Chastain, 50 Ga. App. Chastain v. Next comes her husband seek- 828), against’ a wife filed suit SE where I child. As five-year-old for the death their ing damages (a) Under Bul- two-pronged: decision is read this case the father for sim- child could not sue its five-year-old loch a exists, and right no of action negligence, so derivative ple (92 (b) 25), 634 SE Heyman Heyman, App. v. 19 Ga. under of action per- her husband on cause may a wife sue (c) that no herself, right the conclusion is sonal to so direct, liti- or could action, justify either derivative gation. fit not to extend 1952, Appeals wisely
In
the Court of
saw
(b)
(a)
negli
simple
the child himself
beyond
the rule
152)
Wright, 85 Ga.
721
gence. Wright
App.
or
act
forfeit
paren
holds that since a wilful malicious
74-108, a minor may directly
tal control
Code
sue
under
§
in an automobile collision
injuries
her father for
sustained
part.
misconduct on his
resulting from wilful and wanton
Co.,
Ray-O-Vac
App.
This
cites Fowlkes v.
case
held that "the rule
already
where it had
been
SE
maintainable,
if
child
different, and
an action is
such
action,”
tort and the
at the time
emancipated
Turner,
89,
Coca-Cola Stapleton, 85 Ga. Stapleton And sue fa might that an minor unemancipated established father employer simple negligence ther’s theory liable on the employer which the could be *12 based on the damages and collect respondeat superior, thus directly brought not was as the suit tort, long so parent’s consistently case could In such a the latter. against the em- wished, could not sue if it employer, that the held the due to damages to recover action separate in a ployee of his scope committed within negligence latter’s employment? to date which cases all that State appears
It thus such inhibition public policy have considered only when directly application limited actions have been aby a parent directly against filed damage suit there is control of and power under the child who is minor Georgia themselves concerning cases Federal parent. Cor- Barnwell v. likewise, illustrated as law have done right 236, judgment, where dle, F2d action, curtailed. was law law, no case my opinion statutory no
There is I action. third-party State, prohibits which in this accordingly reverse. would in this Stolz concurs Judge
I authorized state am dissent. fairly Until dissent. concurring specially Judge,
Stolz,
immunity from
of general
three areas
recently, there were
charitable
immunity,
governmental
in our law:
liability
tort
Each of these doctrines
immunity.
immunity,
law. Governmen-
through
the common
came
us
originally
law,
statutory
into our
later
immunity
incorporated
tal
court decisions—
exclusively on
doctrines rest
the other two
poli-
on public
was founded
made law. Each doctrine
judge
subject
to allow a
i.e., "it would be unconscionable
cy,
of a char-
the assets
mustn’t allow
sovereign”
sue
—"We
destroy
would
parent
child to sue
ity
depleted”
to be
—-"For
family.”
tranquility
between
relationship
regulating
rules
Our laws are
changed periodically
society.
of our
Laws
the members
have observed
years
in recent
changes and
society
of this
As a result
changes
society.
in our
significant
most
Code Ann.
Assembly enacted
society,
the General
change
2) (Ga.
and substan-
(1,
pp.
L.
§56-2437
*13
tially modified the doctrine of governmental
immunity. In
1961,
court,
in
this
what the
engaging
majority would hold
to be "judicial legislation,” substantially modified the doc-
immunity
DeJarnette,
trine of charitable
Cox
16). In
Cox,
court specifically
our
recog-
nized that
the doctrine of
immunity
charitable
was estab-
lished in our law (p.
modify
but went on to
that
The rule expressed
doctrine.
in Cox was subsequently ap-
a
proved by
unanimous decision
our Supreme Court.
432).
Russell,
College
Morehouse
The on majority opinion rehearing re-emphasizes the rule of stare decisis to point where judicial decisions are ir- revocably cast in a mold—never to be modified or changed. Fortunately, this has never allowed itself be so Obviously, cast. if the majority view stare decisis had prevailed, the in Cox decision could not have been reached. inconsistent, At the risk I seeming would observe that decision Cox affords ample basis for this court to change the immunity doctrine of parental under the rule of stare decisis. in our
Perhaps expound zeal our philosophy have basically overlooked how simple this case really is. From the facts as outlined in the majority opinion is readily perceived that there is no effort by child unemancipated (plaintiff) to sue mother. suit brought his The against the Eschen, defendant Mrs. who in turn brought action third-party against the plaintiff’s mother for contri- issues, contribution, bution. The two liability and can be (a) (Ga. severed for trial Code Ann. purposes. 81A-114 L. § "(1) 979). 609, 627; 1969, pp. p. Where the tortious act does not involve moral turpitude, contribution among as if had trespassers may just they several be enforced (2) If jointly judgment jointly against been sued. is entered one, off trespassers, paid several is the others shall to him for be liable contribution.” Code Ann. 105-2012 § (Ga. L. p. Thus is clear the defendant statutory right has a contribution in the manner seek she attempting. There is no action unemancipated child (plaintiff) against activity by his mother. There is no the child could remotely "adversely which be construed to Here, affect the domestic the action tranquility.” defendant, to the parent stranger household and an adversary litigation. No filial or consangui- *14 Further, neal relationship exists. the defendant (third-party plaintiff) in seeking exercising specific contribution is right granted by statute. Should the statutory public policy of allowing contribution between joint yield tortfeasors antiquated, anachronistic doctrine immunity? I think not.
I am Judge authorized state Chief Bell and Judge Deen concur this dissent. v. POTEET
47551. SMITH et al. Judge. lachrymose Funerals affairs. For the Clark, plaintiff, elderly mourning relative and retired school- teacher, her sadness was increased when she sustained painful from a fall which injuries occurred as she was walking across artificial grass cover customarily at placed the burial site. In the complaint filed both the funeral director and the cemetery negli- gence charged against both "in permit- defendants was ting the hole or depression in the to remain in ground spot where would be walked into by complainant and in covering said hole or depression with artificial grass, so could not be or seen observed.” The funeral firm filed a third-party complaint against Wilbert Burial