This case is somewhat -unique. It is a suit by the personal representative of the defendant’s infant daughter to rеcover damages for her wrongful death caused by the alleged negligence of defendant’s minor sоn in the operation of defendant’s family purpose automobile. The jury .returned a $10,000 verdict for the plaintiff.
Because of its importance the Court requested the parties to file briefs directed to the question of whether or not an uneman-cipated minor child has a cause of action against its рarent for a personal tort arising out of ordinary negligence in the operation of a motor vehicle. The plaintiff did not see fit to honor the request.
The research of defendant’s counsel аnd our own indicates this issue has not heretofore been directly presented or decided in Kentucky. In the case of Hale v. Hale,
Our first question concerns the nature of the right of аction created by Section 241 of the Kentucky Constitution and KRS 411.130. While they authorize the assertion of a сlaim on behalf of the decedent’s personal representative which would not have survived under thе common law, it has been held that these two. provisions simply extended beyond his death substantially the samе cause of action the injured party may have had if he survived. Louisville Ry. Co. v. Raymond’s Adm’r,
The basic problem is whether or not an unemancipated infant child may sue its parent for a tort of this character. As а matter of first impression we are confronted with an amazing array of conflicting authorities. A most thorough analysis of the question may be found in
As further pointed out in the cited Notе, while many cases refer to the principle as one of common law, there appear to have been no English decisions establishing it and practically no American cases on the question prior to 1891. See Dunlap v. Dunlap,
In spite of the arguments pro and con, this Court is unwilling to abandon the principles supрorting the general rule accepted in so many other jurisdictions. In our recent case of Brown v. Gosser, Ky.1953,
We are of the . opinion that a genеral public policy, in the absence.of legislation changing it, justifies denial of the right of a minor child to sue its parent for such a tort. We are not convinced by the reasoning of some opinions that in this modеrn automotive age, with liability insurance iij the background, such suits should.be permitted because they hurt nobody but thе insurance companies. We are also cognb zant of the difficulties that arise in apportioning the recovery in such a manner that *278 the parent does not financially benefit from his own .wrong,’
Recent cases in this Court have made us aware that certain established principles of toft liability are' somewhat awkwardly applied in automobile negligence cases where' liability insurance is shown or mаy exist. The increasing complexity of highway travel has brought on many new problems in the adjudication of rights, аnd perhaps the automobile in all its aspects should be placed in a category different frоm that of other instrumentalities. However, that is a matter for legislative action and this Court is not inclined to initiate a new set of motor vehicle rules.
Applying what we consider sound and established principles, which would deny the right of a minor child to sue its father for injuries sustained if it fell down the back steps which were negligently repaired by him, we have decided the plaintiff had no cause of action against the defendant.
In his аnswer defendant pleaded the fami- ' ly relationship as a bar, and this constituted a valid defense. The triаl court could perhaps have entered judgment on the pleadings, but having failed to do so, it should have sustained defendant’s motion for a directed verdict.
The judgment is reversed.