*1 287 to the extent benefited property property less the value of the use made of the thereby, property and the rents received therefrom the defendants.2
Decree modified and as modified affirmed. Costs plaintiff to be shared and de- appeal equally by fendants. relegated against Mary are to an action Defendants Stanko (lie $2,000 paid property. recover for the transfer of the
in order to Appellant, v. Parks.
Parks, 1957. Before C. J., Bell, May Jones, Argued Jones and JJ. Cohen, Ciiidsey, Musmanno, Arnold, *2 Harry Siegel John them Idomir, Robert and with appellants. Siegel Siegel Siegel, L. and & /or him Al- D. Carl B. Thomas Caldwell, Stoner, Ilouelc, appellee. bert Fox & for Caldwell, and Stoner, Benjamin Opinion Octo- Mr. Justice R. Jones, 1957: 7, ber upon appeals principal question raised these unemancipated minor can maintain child1
whether damages against her to recover for an action parent’s operation negligence arising of mo- from the tor vehicle. Ann six then a child less than months Parks,
Karen guest passenger age, 1952 in an on June was 5, by her F. father, automobile owned Luther Parks, is, emancipated 1 An minor child —that minor released subjection parents (Detwiler Detwiler, legal his et al. v. 162 386, 426) 383, disability Superior A. Pa. Ct. 57 2d under no —is parents: Dunlap Dunlap, tort v. maintain a action 84 Wood, 352, 905; 280, 586; A. v. N. H. 150 Wood 135 Conn. A. 63 2d 705, Martens, 227; N. Martens v. 11 J. Misc. 167 A. v. Brumfield 577, 170; Brumfield, Murphy Murphy, 74 194 Va. S.E. 2d v. 206 796; Co., N. 2d Misc. Y. S. Martinez Southern Pacific 244, 288 45 Cal. 2d P. 2d 868.
operated by her Helen Parks. An oc- accident mother, allegedly curred2 as the result of which minor child injuries resulting permanent received in total and physical disability requiring and mental that she placed in a state institution. complaint trespass,
A containing two counts, filed: In the first the minor child’s count, father, guardian of the child and on her claimed com- behalf, pensation pain suffering, physical mental and expectable earnings; disabilities and loss of future right, the second in his count, own claimed father, compensation present past, and future hos- medical, pital, surgical expenses and other and for loss of the earnings during minority. trespass child’s ac- tion was instituted the mother of the child. *3 (actually carrier)3 Helen Parks an insurance filed preliminary objections asking judgment in her favor on grounds unemancipated the that an child could not maintain a tort action and that a husband could maintain a not suit his wife. specially presiding, The Honorable John sus- J. Pentz, objections preliminary tained and from his orders appeals appeals taken. After the were had been filed, appealed appearing it that the orders from were not petition final to remand orders, the record was filed judgments so that could be entered in accordance with 2 According Complaint, to the averments in tlie the automobile being operated by southwesterly Helen Parks direction on point vicinity Legion Route at a in the of the American Country Wayne Township, County, highway Mifflin Club left and struck a tree located two and one half feet from the north highway. negligence alleged eastern berm of the The acts of were (1) speed, (2) excessive failure to have the car under control and (8) highway failure to observe the ahead. 3 policy The insurance was issued to the father as owner of automobile, operation but covered the mother’s of the automo bile. was remand- record
the orders of court below. appeals judgments en- two and these were entered ed, sued. proceedings pendency
During in the court setting forth affidavit F. Parks filed an Luther below, Automobile the State he carried insurance with Indianapolis, cover- Association of Indiana, Insurance injuries ing liability bodily of $10,- for the amount person aris- accident each each $20,000 operation ing this in- automobile; of his from the operation Parks in her covered Helen surance agreed guardian and as he father, automobile; that, trespass any recovery from the limit the amount of policy. face $10,000, amount of the action Appellant’s (1) argument an un is four-fold: permitted emancipated to maintain a child should be pa damages result of action for sustained as the tort damages negligence have sus been rental where arising from the exer tained under circumstances parental discipline or con and control cise of (2) since the mi establishment; of the domestic duct is confined in state insti child in this situation nor it in all will remain for the likelihood, where, tution relationship is dissolved life, balance public policy fostering the mainte therefore, and, inapplicable family unity bar this action; nance Pennsylva (3) policy been the of the law if has *4 parent action between a child and nia to forbid tort changed by policy has been several Acts of the such operators Assembly requiring all of motor ve: General liability public to maintain insurance so as to hides persons injured by opera protection provide all (4) forbidding a rule of law vehicles; of such tion unemancipated minor child its action tort apply liability should, where insurance cov parent parent. negligent acts ers the
291
could
a child
There
no common law rule that
Philadelphia
v.
not sue its
et al.
parent:
City
Briggs
Dunlap
112
292 (Krohngold v. 2d Ohio 788) ;
243 N.
89 S.E.
C. 55,
(Cow
Krohngold,
910) Oregon
O. L. R.
N.E.
;
37
86, 181
gill
v.
Is
Rhode
445);
218 P. 2d
Boock,
189 Or. 282,
(Matarese
v.
Matarese,
;
R. I.
In Ct. Duffy Duffy, 500, situation consid- present the converse of the 165, personal injuries resulting ered: could an action for an parent be maintained negligence against permit child? The Court refused to unemancipated to maintain the as its reasons parent assigning action, therefor that the allowance of such an action would result “discord of the disorganization home, relation of the natural ties of family severing all of affection” which the “state desires to prevent than promote” rather (p. 502).
In Detwiler et al. v. Detwiler, supra, Superior Court considered whether a parent could maintain a an unemancipated suit minor against re- injuries from the minor’s sulting tortious conduct and the cir- cumstances under which the minor could be considered On emancipated. right parent to maintain suit the said : 385) Court “It is (p. settled beyond ques- tion this State that parents cannot maintain a suit minor against unemancipated son for re- injuries from his tortious act. Both sulting parents are barred principles on broad of public on policy that ground such actions are disruptive family peace and destruc- tive of filial discipline. The soundness of the doctrine seeks to maintain jealously peace, harmony inwill good relation can no longer be ques- tioned. ...” (et Appellant) Minkin al,, appellants urge their supports posi- 336 Pa. 7 A. 2d 461, Minkin, suit brought In old
tion. that ease an eight year for the death damages his mother recover the mother’s resulted from of his father have alleged be- The court of an automobile. operation negligent public prohibited opinion policy low, being Death minor his mother and that the a suit minor one action to the when Statutes no gave defendant. entered a judgment survived, the court below. This a 4-3 reversed vote, Court, by were of the opinion of the Court majority *7 share in com- allowed a minor to Death which Statutes, caused his one whose pensation payable by negligence in this indicated a intent parent’s legislative death, dis- the displace public policy action to which of type parent. actions a minor allowed generally the court limited be noted that majority It will of actions wherein the Death type its to that ruling (later Justice) Mr. Chief apply. Statutes Justice Hor- concurring result, disagreed while ace Stern, “I 56) of the : am majority (p. the reasoning it is not against public policy however, opinion, the form of the minor to sue whatever parent, for a suit is to vindicate property rights where action, for acts of violence or damages neg- to recover For if parent person. example, affecting ligence or his child’s de- money, physically to embezzle were suit should there no reason why his property, stroy the action be in tres- though even permitted not be from a parent’s for damages resulting An action pass. for a loss—the property deprivation is to recover death de- have been received that would support takes dissenting opinion he lived.”5 ceased had may, through another, parent re sue his to the minor “Since rights, asked, property rights property of mi- are cover
295' .. passed were Statutes the Death position law the common to hut subservience not to overturn, modi- statutory such . . .” and that only public policy be recognized will of public policy fication or change Mr. prescribes. and definitely as the statute clearly speaking Justice) Justice Chief (later Schaffer, the de- “I not make : would 58) said (p. minority, public most sound I believe to be a from what parture rela- of the to the maintenance policy leading I be- that which approval I cannot seal with my tion. legis- it until disrupt will have a tendency lieve State, public policy declares the lature, mind has time out shall that which existed overturn sue minors the unemancipated by giving their for their parents alleged negligence”. pur- indicates its
An
of the Minkin decision
analysis
where
parent only
is to allow a minor to sue its
port
affected is a property right granted by
the right
and it
not sanction
Death Statute
does
generally
mi-
unemancipated
maintenance of a tort action
nor child
for acts
damages
See also: Silverstein
person.
negligence affecting
Pa.
20 A. 2d
Kastner et
205.
al.,
disal
lower courts
have all
Pennsylvania
*8
maintenance of this
of action: York
lowed the
type
Trust
v.
&
Guardian
D.
Co.,
Blum, Administrator,
Morris et al. v.
et
33 D. &
313;
McKinley
al.,
696;
C.
C.
41 D. &
v. Beck et
C.
v.
al.,
387; Dunlevy
Samborski
National
The Butler
et
64 D.
County
Bank, Admr.,
al.,
Frank et al. v. Lebow et
84 D. & 561;
&
C.
535;
al.,
C.
&4 D.
2d
Brower et
449;
v.
C.
al.
Chesonis,
Chesonis
D.5 & C. 2d 193.
v. Webb, Admx.,
rights
person? No,
Importance to him than the
of his
of more
nor
family
protection wiU
disturb the
relation as will the
their
but
injuries
every
personal
negligence
form of
as well as
action
Kirchenstein,
77,
Mesite v.
109 Conn.
Furthermore, of mi person nor child to maintain a tort action indemnity who has the from or contribution parent from the child’s in the event the child recovers damages Briggs City in the action: et al. v. Phila. supra. et v. Cf: Koontz Messer al., and Quaker State Refining Company, Oil 320 Pa. 181 A. 487, 792; Fisher Superior 156 Pa. Diehl, Ct. 40 A. 2d 912. unemancipated
The rule that an child cannot main- damages against parent tain an action tort for any negligent part because of conduct on the of parent prin- sound. It is a rule based on the sound ciple public promote policy family unity and avoid prevents possible discord and disturbance, col- parent lusive action between and child in situations liability where the of either or child is covered great insurance and it is in line weight judicial represented authority by practically every every country. state in court Appellants urge next even if ap- that, this rule plied particular generally, yet this situation calls for a qualification peculiar of the rule because of the cir- involved. cumstances The minor child, Karen Parks, in. a. appellants state and, now therefore, institution *9 rela- family cannot be any is not and that there argue disrupted permitting be by would which tionship “it that will avers Complaint that suit. Granted maintained in that be necessary Ann Parks Karen fact life”, remainder of for the institution an the rule. We a relaxation of call for does not alone excep- has an recognized ever no court know of lose Appellants a fact. based on such the rule tion to always possibility fact that there sight With death relationship. of the family resumption termination of the irreversible end and there comes lives relationship and such relationship only family in an institution be only may confinement memory; in the sev- lacks the of death finality and it temporary relationship relationship. Family of the family erance and care af- affair: devotion parental is a two-way the member of the flow toward family fection still may and this re- phase in the institution confined be severed between litigation well lationship of collusive parent. grave possibility child and the of the child and the representative between action at all affected confinement of the child is not can see institution. We no valid reason for a rule in this situation. relaxation next submit the rule is no Appellants longer because of certain Acts of the As- sustainable General insurance for the requiring coverage operation sembly and further because vehicles where there is li- of-motor the reason for the rule insurance ceases to exist. ability Vehicle Safety The Motor Act Responsibility P. L. 1340, 75 PS et amended, June 1, §1277.1 all persons involved in requires accident any seq., or death or bodily injury resulting property damage are required file accident in excess reports $100 of Revenue; within Secretary sixty (60) days of a motor vehicle accident receipt after- report, *10 op- suspend Secretary required each to the of is license registrations motor of a of each owner erator all any such unless manner involved in accident vehicle deposits security operator amount the the owner or by Secretary all cover claims determined the to presented. might provision is This of the statute be inapplicable the the time of the accident if owner at liability policy re- had in an automobile with effect spect in such accident. to motor vehicle involved the legis- Appellants argue this a that Act tantamount to public policy requiring motor lative of all declaration operators carry liability to insur- vehicle owners and public changed policy by declaration ance and this of previous (under theory of the Minkin case, law permit par- supra) so minor children to sue their as to sight argument of the This loses of the rationale ents. by majority in Minkin i.e. that Death Stat- case, given right expressly property a minor utes the impliedly at the minor enforce could therefore, least, right parent, effecting a a thus even subject. previous change in law instant on the represents attempt by simply of a the use statute suspense of the to drive to-wit, sanction— registration injured the vehicle—to secure for those by.an action uninsured driver some redress in an after happening of the accident. This statute does not part require compulsory oper- insurance on the of the legislative vehicle; of a motor ator or owner at- tempt provide responsibility financial to after an acci- person injured happened so that the has se- dent injuries. wrongdoer Appel- redress for cure operator forget even if or lants com- owner, posts security, pliance statute, with the it is still in- injured upon person that the cumbent establish operator of the motor vehicle or owner which he was happening injured for the was liable the accident for tbe payment can be before security utilized the col- This statute deals incurred. tbe damages liability not with recovered, lectibility damages it is still accident; necessary the happening It be can had. would before prove redress liability statute legis- farfetched indeed hold of immunity in the rule lature intended any change from suit or a child. the instant
Even it be established —as though *11 is covered parent case affidavit —that by appellants’ a require fact should not such insurance, by liability fact the particular relaxation the rule. The is insurance protected is the parent by who defendant not minor child should enable the liability legal if he could not otherwise have to maintain the action 183 Minn. 237 Lund N.W. Olson, 515, maintained it: v. R. v. 162 Va. 174 S. Co. 188; Gretakis, 597, Norfolk v. 45 Ga. 163 S.E. 841; Bulloch, App. 1, S.E. Bulloch Collins, supra; v. Elias v. 708; supra; Rambo Rambo, Zaccari v. supra; Perkins U. Robertson, supra; S., v. v. 156 Ohio Levesque Levesque, supra; Signs v. Signs, 2d v. su- N.E. 743; Brumfield, St. Brumfield pra. re Superior
In Court supra, Duffy Duffy, argument following an identical fused to adopt : a we legislative “Without (p. 503) mandate, language such a making discrimination, see no justification cases automobile from other actions thus segregating out of the conduct of an negligent a parent growing by because automobile many unemancipated minor, would give pro be carried that might cases insurance has never been recognized That distinction tection. called to our we re attention, decisions any In adopt such a did, theory.” court fuse, adopted the supra, stein v. Court Kastner, Silver case and stated “The Duffy (p. 208), language there was insurance in instant fact, therefore, was of case no moment”. or presence absence of insurance should be of importance
no rule of im- determining general The fact that a lia- munity. parent carries accident does parent insurance not create as bility which would not exist were he insured. any liability is That covered insurance is irrelevant must since exist before such becomes liability insurance of insurance not and applicable policy should cannot establish That there was insurance liability. in the instant case and that the father of the child limited the amount of recovery policy reason valid removing disability to maintain this action. liability imposes
Automobile insurance the in- upon surer the all sums for duty pay which the insured shall become reason obligated im- any liability posed by upon law insured. Absent legal liability on the insured’s under part, the insurance contract no liability imposed upon the insurer: Kesman et al. v. *12 Twp. School 345 Pa. District, 457, A. Fallowfield 2d 17. When the instant contract of insurance was the imposed issued law no upon insured liability father nor mother for their negligent conduct result- to their child. ing damages The parties to the con- tract never contemplated such any coverage. Appel- lants would have the of insurance create a existence insured’s liability upon part where none ex- previously isted. To create such a post-contractual liability be to vary would contract thus “change the while is in rules the game progress”. We refuse to im- pose where none existed when liability the contract of insurance issued.
While the existence of insurance coverage would re- - lieve the possibility parent suffer might pe- the possibility tliis extent lessen loss and to cuniary insurance time the at the same family discord, yet insured upon parent impose would coverage insurer. How could this with the of cooperating duty disturbing with without complied clause be faithfully the law relationship which policy the family a parent conscientiously could preserve? seeks to How insurance clause of the cooperation with the comply mindful of his natural and at the same time be policy as when, and affection for child, particularly love has become ob- instant it is the who case, expenses hospital surgical for the medical, ligated and his self interest of the parent of the child? The render affection for the child would natural love and the in- cooperation impossible degree any nigh action in such a sit- of collusive surer. The possibility reason in itself is sound rejecting uation insurance is present. liability rule general where confronts us in the question Another and serious do we have a through situation. Not only child, present a suit the father, maintaining its guardian, which to the for the recovery damages belong mother have the husband-father maintaining but we child, the wife-mother for the own right, against suit, of the father damages he, recovery reason of the injuries has sustained to the child, child. Act of P. L. amend- §1, May 13,1925, 638,
Under Act of June P. L. 26, 18 PS 316, ing §1 and mother have a of action right the father joint §91, to a minor injuries for loss of child, for damages and for the expenses incidental to such in- services, of action brought either juries *13 name of both. but in the it is Although highly whether this suit was questionable properly .brought by. in his since own the is a name, right the father joint two them- present much more serious right, yet questions selves: father in his own (1) since action by for a loss occasioned to this right injury, recover by child is for on done the we have parent, injury count present of the action a suit a husband by a wife to recover in which the wife can share damages since father in his own accuses (2) right wife of conduct which caused the negligent injuries the wife’s will bar child, negligence recovery by father.
It for an done to the not for an injury parents, done the injury parents’ action is main child, tainable : Woeckner v. Erie Electric Motor 182 Pa. Co., A. 936. It follows that necessarily parents’ is to recover right compensatory damages the pe loss cuniary have suffered they reason of the child’s by Thus in the injury. present action the of the father child is seeking recovery loss which pecuniary was occasioned to both him and his wife and seeking it from the wife to whom part such if loss, recovered, would be payable.
A husband cannot maintain a tort action wife. The common law prohibition of litigation between spouses has' not been abrogated by statutes remov the common ing law disabilities of married so women spouse that one can sue another in an action.of tort: Koontz v. Messer, etc., supra; Kaczorowski v. Kalkosin ski, Fisher v. Admr., supra; supra. Since the Diehl, to be sought redressed by husband is a right distinguishable that of the minor child he cannot maintain this action against his In wife. addition it would be highly unconscionable to permit recovery this suit the husband of a loss which belongs to both the wife and the husband and permit her to share in a recovery caused own wrong.
303 et and Company, In al. v. Baer Connelly Kaufmann A. suffered 349 Pa. 2d a suit 125, injuries child instituted on behalf a minor by by father, negli and on his we held that the child own behalf, mother contributed part on the which gence father bar a the child’s would injury recovery by suit case is based in his The father’s this right. own such his and on an wife was allegation negligent if to the therefore, caused the negligence injury child; recovery there could be no such were allegation proven even against father in his own wife, by maintainable. if such a suit were State the insti- precludes of this public policy It is a this type intrafamily litigation. tution of ad- and to which we should strictly sound one policy oppor- in a situation much where so particularly here, mem- exist for collusive action between would tunity if the rule were family bers of otherwise. affirmed.
Judgments Dissenting Opinion : Me. Musmanno Justice I sat on the bench of the honored Twenty years ago Court of Common Pleas of Allegheny County distinguished Judges jurists, Dithrich, Patterson and listened to on the which arguments question same us in before us Jerome K. confronts the case today. had old filed a suit in tres- eight-year Minkin, boy his his friend, against mother, next pass, through her with the automobile charging negligence driving killed father. The insurance which company, the mother li- policy against carried indemnifying in automobile contested the ar- accidents, ability suit, a child lawsuit argued here, guing, parents policy would violate sound public such disrupt unity because actions would tend to ap- Pleas brethren were Common tranquillity. My sustained they impressed by argument parently I demurrer. dissented insurance company’s not because it was true decision, colleagues’ my per minor his parent would, se, a suit aby Mrs. Minkin did disruptive family harmony. *15 not sued. object She did When being so contend. she question the automobile insurance in purchased she that whole could benefit did not declare world her children. I said in dis- provisions except my Minkin “Mrs. never and cer- senting opinion: believed, explained it not so tainly her, under the in- expanse umbrella sheltering liability vast would room for surance there be one every world —except her own children.” Minkin
Jerome to this court appealed from the de- cision of Court of Common and this Pleas, Court allowed Jerome to his proceed with reversed, and, claim, upheld opened doing umbrella. by so, after 20 it has Now, today, decided years, to close And a umbrella. consequence a accomplishes grave injustice.
In at the case Karen Ann a bar, Parks, has minor, her Mrs. Helen mother, sued Parks, because of injuries in an automobile sustained accident from the resulting of her alleged mother negligence who drove the car. F. Luther Parks, carries father, automobile insur- ance which includes so that wife, any amount re- the child against covered by mother will paid not the mother but insurance carrier. The lower court dismissed Karen’s action on the assertion an unemancipated minor not may sue a parent action. The minor appealed a tort to this Court, Avhich has now affirmed the loAvercourt’s action in a decision supportable Avhich in reason or law and is op- posed to the most basic of evenhanded principles jus- Ias intend to demonstrate in this tice, opinion. Opinion pol- declares that “the Majority public of this State
icy precludes the institution of type It is a sound and one to intrafamily litigation. policy which we should ...” to that strictly answer adhere, My statement is that it is not a sound and therefore policy we should not adhere to it. The sees no vio- Majority lation of sues his public when policy but it perceives a violation when the lawsuit assumpsit, in tort. originates Where is the difference? If a child sue his father because of a broken may contract, why him he not sue because broken Su- leg? The preme Court the case of Ohio, Signs Signs, Ohio pointed well out 566, 576, involved absurdity in this arbitrary distinction, type litigation, between contract action and a tort action: “It seems absurd to it is say legal proper for an uneman- *16 cipated child to an action bring parent con- the child’s cerning to property rights be yet utterly without redress with reference to to his person. injury is
“It difficult to understand what legerdemain or law such a reason, logic situation can exist or how it can be said that domestic would be undis- harmony turbed in one case and be in upset the other.”
If the law throws no protective armor around par- ents in a contract action where they may compelled to out thousands pay of dollars to their children, why should it build a defensive wall around them in a tort action where would they not be required to expend a penny? here does Majority not attempt to explain (perhaps because it a cannot) why tort action should disrupt family while a unity contract action presuma- does not. Countless bly in the pages law books are de- voted to the description of pitched battles between chil- dren and parents over wills, inheritances, settlements,
partnerships, personal property and busi- real estate, every ness deals Does close its character. the law open eyes type family disunity jaun- but a involving recovery diced for a one lawsuits child’s physical injuries? my opinion It that the law is nut astigmatic Opin- myopic, Majority so or as the erratic, ion would make it. The fault lies not in the but law interpretation. in its
Judges give interpretation some times to law an cunning wholly which invests it a shrewdness foreign purpose, to its because after in its law, all, concept, simply justice in action. When fundamental judges something crafty make of the law subtle and they only making in succeed it insidious or ridiculous sight candidly-appraising lay in the of a world. Majority Policy raises the banner of Public child-parent prohibiting suppose tort actions. Let us my dissenting opinion I as did situation, possessed where a Minlcin case, of a mother, fortune estranged own and from her murdered her children, deprived and thus husband the children of maintenance support. In Policy pro- such a case would Public suing hibit the children from the killer of their father? question To that I would answer 1957 as I did in prohibition public policy. that: “Such would not be It public outrage.” would be purpose protect
If of the law is to unity, objection it should have no then to a lawsuit which family together closely, tends weld even more spite in the case at bar. is true Moreover, *17 Majority against child-parent animadversions of litigation, litigation the fact remains that such by is strange no of means to our matter courts. In Min- accepted kin case this Court what is common knowl- namely, edge, “. . In . this Commonwealth, children parents appear against constantly each other non-support prosecutions, in criminal desertion proceedings proceedings, in defense as well respectively.” property owned them theorizing Although on the sub- there is considerable pragmatic ject nothing, under there discussion, suing his reality, inherently fa- a child wicked about proper grievance. has a ther or mother where the child litigation objection type only to this substantial intrafamily controversy could lies in the fact that an parent develop contest since the into an acrimonious required might pay money But over to his child. to be possibility if wherein exists dan- is eliminated, ger family disunity legal controversy? If over a parent simply an were aca- lawsuit between child and argue it or demic one would would no debate, family disunity. academic should How does an cause present already case where it is debate differ pre-established compelled will be that the money? pay any
What difference would there between father just putting money for such a into a trust fund con- injuries injured tingency- -payment for done an — purchase liquida- child—and the of insurance for the money through legal pro- tion of a verdict ascertained provides settling ceedings? money Once the father policy, trust an verdict means of a fund or insurance family disharmony all reason for has been removed. To despite patent lack of insist, therefore, that, 'cause simply discord will nevertheless follow is discord, quibble, sequitur. illogicality, to insist on a a non arriving In at its conclusion that Parks Karen has bring Majority no an action in this case, says at common law no that a there was rule parents. premise Although could not sue such support my suability would better thesis of than the position Majority’s non-suability, not established' *18 immutability just was a child’s with historical what respect Ma- in this at common Even the status law. jority “All the authorities footnote, admits, What modern. termed earlier ones, are prior conflicting meager, those are and ob- 1891, confronting problem objectively scure.” However, today, very parental it matters little whether the tort immunity at not. existed common law or There was much and so that was inhumane cruel the common being regarded wives children more or law, pro chattels, less citation or contra the thesis present way under discussion cannot it control one or important, other. It as stated however, note, principle by Majority, being that the advocated recognized not it was the American colonies and not accepted anywhere in the United States until In 1891. year, Mississippi, Ragsdale in the State of a Mrs. daughter had her committed to an insane institution purposes. disciplinary days for After ten confinement daughter able to obtain her release. She then brought imprisonment, suit her mother for false Supreme and recovered a verdict. The Missis- Court of sippi peace declaring: society, “The reversed, composing society, public pol- the families and a sound designed repose icy, to subserve the of families and the society, interests of forbid best to the minor child a appear in court in the assertion of a claim to personal injuries civil redress for suffered at hands parent.” (Hewlett Ragsdale, of the 68 Miss. 711.) Mississippi any authority did not Court cite prob- did not discuss the decision, merits it did not consider whether the child
lem,
had been
wronged through a
wilful
malicioxis incarceration
asylum
Arbitrarily
up
the insane.
set
it.
regardless
injuries
standard that
suffered
a child
counte-
at
hands of
the courts would
parents,
parent.
nance
claim
any
a minor
later
in Tennessee
Twelve years
*19
father
suit to recover
brought
damages against
pun-
inhuman
who had inflicted cruel
stepmother
aas
case
Mississippi
ishment
her.
the
upon
Using
declared
Tennessee
the
Supreme Court
precedent,
v.
(McKelvey
the suit could not be entertained.
subse-
111
two
390.) Then,
years
Tenn.
McKelvey,
old girl
a 15-year
to the Tennessee
quent
decision,
against
a suit in damages
the State of
filed
Washington
and for
had
ravished her
her father who
criminally
in the peni-
a term
that offense had been sentenced to
verdict which was
obtained a
tentiary.
daughter
which
Supreme
Washington
reversed
the
Court
by
declared;
fam-
of the home and
“The domestic relations
members there-
fireside cannot be disturbed
the
ily
in-
each other for
prosecuted
litigation
of, by
these relations.”
real or
out of
juries,
imaginary, arising
244.)
with the statement that “the vast of courts in majority deny States to an any right unemancipated the United to maintain a. tort action its' parent;”- This statement mere correct but its unquestionably resolye announcement does before us. question In the year world A.D., weight authority supported thesis that geographical navigationally the earth was flat. Reason and combined with logic, cosmographical principles, challenged thesis, of the “Santa Maria” shattered it finally voyage irretrievably. Later, Magellan’s circumnavigation globe proved earth irrefutably flat folly postulate. the decisions Similarly, voyage through of other courts will reveal that those courts sup port the parental tort thesis are up founded immunity on a principle which the juristic Columbuses and Magel lans of have today proved to be utterly untenable of modern light realities. United States District *20 Judge in the case of Lord, writing Davis v. Smith, F. Supp. well “. said: . . Where and 497, equity it should not assist in compel, a doctrine perpetuating in inhumane and is, large part, unjust in our mode of life. This changing the authorities recognize.” The Opinion Majority asserts that arbitrarily suits barring between and is child, family unity but it is not promoted, enough an as- merely make that sertion a certain promotes policy family unity avoids discord. In the family arena of the laAVno di- dactic assertion carries a spear of Be- irrefutability. fore assumed doctrine can any wear the in- crown of it must fallibility prove itself invulnerable at- against tacks of all opposing contentions in the field against it. As parental rule we have the immunity respectable truths that children are special wards that is there no wrong Avithout a law, that remedy, no should one be permitted derive a benefit from his own that aims at Avrong, law realities, where the reason for a rule ceases to exist, rule it- self should fall. if there Thus, rule-which con- could create because it demns intrafamily litigation inapplica- that rule be would family certainly discord, the litigation ble the facts show conclusively where stir discord and up disunity, but, would not only hap- on the would assure family harmony contrary, piness. has been so Karen plaintiff case, Parks, in all and brain structure that injured
gravely body placed recover. She has been likelihood she will never must care. an institution where she have constant care is enor- connected with expense type Her F. lia- mous. Luther out Parks, by taking father, expenses intended to underwrite bility insurance, for such care the victim of his or his wife’s neg- where should it. Does ligence require public policy proclaim that a father make such for the children provision of other but not his parents own?
The fact that Karen Parks is a plaintiff against mother can never become a source of dishar- if Even we were to mony. what assume, contrary to human that parents would resent nature, namely, for a disabled spending we know that money child, this case the defendant mother would not compelled a dollar expend of her own as the result of money verdict rendered her. any Where, therefore, there arise cause for any would family disharmony? Dunlap In the case of 84 N.H. Dunlap, plain- *21 injured of while years age, for his tiff, working father on a construction He building job. filed an ac- trespass tion father. It against was argued the claim that to allow would be to recovery introduce into the disharmony family. The lower Court nonsuited the but the plaintiff, Supreme Court of New in a monumental to Hampshire, which refer- decision, made ence will be said: “It is later, to the contrary assert that such a suit facts to would be a disturbing family likely factor in his life. It is more to be viewed something adding family as to be to the welcomed, assets.” Majority Opinion, attempted buttressing in an specifies
of the decision of the Court the case at bar disrupt how a successful lawsuit would the life points family. particularity: “Family Parks It out with relationship parental two-way is a affair: devotion and may care and affection still flow toward member family phase confined the institution and this family relationship may by litigation well be severed parent.” the child and the between respect, say soph- I must this is With all sheer lay istry. arbitrary If this desires to down the Court permit under no circumstances will it a child edict that parents, action in tort it should to enter an power although say I to do doubt so. It has the so, authority. any a didactic find- But event, it has the disconcerting ing, be less than character would of that explanation attempted insults which offends reason, an say justice. logic, To that a re- abandons and injured lationship severed because will be employ money buy to medicine, doctors, to receive to hospital every- and to do rent a bed, to nurses, hire to helpless vigor thing to restore to science can do light of a darkened brain —is to lantern frame and phenomena, opposed con- demonstrated say what repugnant knowledge, law trary to common reality antagonistic to established and effect, cause loyalty upon between reverence, love, based her child Why because, mother hate would child. money, her beloved off- through payment insurance Why recover? would spring a chance have ever heal and the if her wounds Ann, Karen child, her dislike re-knit, ever her brain frayed filaments paid through care medical because, mother
313 from into from father she has been lifted darkness light, a a from a pit pain plain living of onto of happiness, hell a into realized heaven?
The object of insurance is to only protect it is also to save the automobile injured person; owner from ruinous and it is mind litigation give peace to those a want motorists, who, having conscience, for the provide people whom they may unintentionally injure. Insurance thus preserves both tranquillity of the and the family injured person of the If person. injuring law of in- approves, does, surance where its benefits operation two families, why should it object where those benefits combine and con- centrate in one family? admits: “. Majority Opinion . . a right
minor child to maintain a tort action person who has the from or indemnity contribution child’s parent event recovers in the action: damages et al. v. Briggs et City Phila. Quaker Koontz Cf: v. Messer and al., supra, State Oil 320 Pa. Refining Company, 487, A. Fisher 792; 156 Pa. Diehl, Superior Ct. 40 A. 2d 912.” But if a parent added to the litigation where, inas the cases just he must in cited, the end pay happens Avhat the rule verdict, which the Majority insists must that a prevail, namely, tort action against must not be And allowed? if the parental im- rule can be relaxed to the munity extent just indicated, it be relaxed cannot where Avhy the parent, although will not be nominally defendant, required to pay any at part verdict all? Opinion Majority says there must be no re-
laxation of the rule, regardless circumstance. With this assertion it controverts the universally accepted there can be an proposition exception to rule any conditions when imperatively demand the exception. *23 ship are directed a rock all efforts a collides with When saving ship, the rock. when not Thus, toward harmony acknowledged family collides virtue of damage family, do untold to the a rule which will family rule. should be not the which saved, transportation faulty days In the of slow judges hesitant to relax rules be- were communication, might they lead to abuses the relaxation feared cause they in these However, not checkrein. could which printing lightning rapid telegraphy, days of mails, developments instantly presses, aware of the law improper might relaxed rules extension of cause which immediately re- to forestall untoward and it can act sults. Opinion Majority says: “The minor Ka- child, institution therefore, in a state and, is now
ren Parks, any argue appellants is not and cannot be that there disrupted per- relationship be which would Complaint mitting that the avers suit. Granted necessary Ann Parks be that Karen be ‘it will that remainder of her institution for the in an maintained call for a relaxation of does fact alone not that life,’ Mr. and Mrs. indication that is no There the rule.” they that circumstances such economic are in Parks to meet the their own resources be able would helpless person sustaining expense an of enormous Any permanently. solution, therefore, institution receiving proper medical care Karen’s insure will guardian angel only life will be her rest of parents to insist Thus, as well. for the but for Karen disruptive family har- be will a solution such that person to a a lifesaver thrown that mony insist is to him when we know will drown struggling the sea saving probably his life. the means it will tourniquet properly say is to insistence an Such bleeding augment know that it when we applied will stop bleeding. will say Sneb an insistence is to oxygen an breathing per- tent will hinder the of an ill son breathing. when we know that it will assist mockery Such an logic, insistence makes a a mas- querade reasoning, burlesque argumenta- and a tion. Maryland difficulty
The State of found no in relax- ing parental immunity rule when re- circumstances quired it be relaxed. In the case of Mahnke v. Moore, illegitimate 197 Md. minor child sued estate of her anguish father to recover for shock and mental sustained her when father killed her mother and *24 presence. then committed suicide in the child’s Con- ceding parental authority should be maintained, Supreme Maryland Court of declared that since the parents family discipline death of the left no in which tranquillity and to be was maintained, reason for parental immunity disappeared had and, therefore, purpose applying there no was the rule to bar re- covery from the father’s estate. Majority says “Appel- at
But, case bar: sight always possi- lants lose of the fact that there is resumption bility family relationship.” Sup- of a pose resumption family relationship. there is such a of change the fact IIow would that Karen Parks im- peratively needs medical care and attention and now deny today for the foreseen future? To a verdict be- twenty, thirty years physical or cause ten, now, may change (although condition conceded medical evi- contrary) denying is all to the like dence food person starving might possibly on the assertion that he and thus do himself considerable harm. overeat Opinion completely ignores Majority the reali- relationship. parent-child judges Like ties of the accepted popular notion that the earth of 1491 who attempting analyze, flat and without consider, on the research findings modern the most appraise that most declares here Opinion Majority subject, parents from suing children prohibit of the States the correct that must be actions therefore, tort and, that one of of the fact no mention It makes rule. the State responsible rule, namely, States three rea- it in the repudiated excellently has Washington, 2d where Wash. of Borst Borst, decision soned Justice said: through speaking the Court, IIamley, is not consid- tranquillity argument “Since the family are rights involved, where controlling property ered as the claim re- stand in the Avhere way not to ought A second reason frequent- ... personal injuries lates to is that rule support immunity advanced ly tend parents children their to under- actions by . . . The field discipline authority mine parental covers such matters discipline control parental and no home, chastisement, as the maintenance which need not here be delineated. doubt other activities the child was parental activity whereby But when parental to do with control and nothing has injured such a suit cannot be said involving activity discipline, life. And if family those sinews even to undermine tend to impair discipline suit should such a *25 not seem to call that would for applica- some degree, rule more than in immunity any cases tion where a to enforce property right.” the child sues are central parents jewels the diadem Although like all other happiness, they have, of family jewels, are the facets parental There facets. disci- many then there and and are the control, love facets pline, citizenship occupational responsibilities, voca- to the world in liability general tional duties, or In intentionally unintentionally. harm done, owes to society which obligations general in the mass of all family only integer his other families. The pays government taxes which he to the do family not any benefit his they more than benefit other families. If he should family commit a his crime, any punishment cannot demand severer him imposes than person. that which any the law on other family required- the same But, token, not take less benefit than that which accrues to other fam- ilies in non-family obligation compels event a him expenditure. to make a financial Just his own fam- ily, enjoys with all other families, benefits of the pays, taxes he so should enjoy his own the bene- buys protection fit of insurance which he for the operates all If dangerous families. a man owns and dynamite business such factory as, instance, required he is indemnify to take out insurance to all property against damages they might owners suffer be- cause of his hazardous it would be business, absurd to say explosion the event of an accidental which levelled a row of houses, included his own, company required indemnify insurance would be all except the man home-owners who made the indemnifica- possible through payment premiums. tion Thus, simply preposterous say in the same it is manner, that an automobile owner who carries in- insurance to injured demnify through neg- children who his ligence protect except intends to all children the fruit his loins. own father his
When a drives automobile he is not trav- parent, elling simply society he is as a member of equal obligations owing to all children on the street, offspring. pain excluding Whatever a child suf- parental discipline because of has in his home noth- fers pain ing he suffers on the street to do with when including by an one owned automobile, he is run down in cases of this kind is test, then, his father. namely, injury the child’s where arises one, an obvious *26 legal relationship, parent-child no normal out of a injury permissible, claim, but where is for redress have arisen outgrowth which could of is a situation recovery For strangers, denied. should not be between reprove his child has the a father instance, discipline of to the extent even (cid:127)infraction of punishment corporal and it applying reason, within discharge of nobody’s interfere with business appropriate parental duty. dis- of in the enforcement If, personal cipline, humiliation or even suffers the child price pays for the lessons that is the he minor bruises, injured under con- But where the child he receives. parental nothing do have ditions which relation: example, ship, if he an arm because his loses as, negligence an act of at automobile father commits possible reasoning justify kind of can refus- wheel, no policy ing of an insurance to the child benefits stranger shares. the merest boy In case heretofore five mentioned, the Borst operated age, by by years a truck father. of was hit his In filed de- the suit father, authority on the murrer sustained Roller tripod (a leg supporting pa- Roller cases immunity doctrine.) Supreme rental Court analyzed tripod Washington leg it de- found public policy fective. The Court said while “demands parents given immunity from such suits while discharge parental im- duties,” mantle of disappears munity the tort is “where committed dealing nonparental with the child in a while transaction.” always
In a distinction word, must be made be- particular parent-child relationship the delicate, tween general parent-society responsibility. Majority Opinion page devotes a whole or more enumeration to the of decisions of Courts of other *27 States supporting parental tort doctrine. immunity It is an list as imposing swept Columbus but, away a wave of his hand all the cobwebs of ab- antiquated stractions, miasmatic and the unveriable superstitions, views as majority to the one shape so will earth, or two reasoned cases in the books thoroughly nullify all the artificial and conclusions are which arbitrary found in the cases enumerated Opinion. by Majority In its discussion on long authorities, Majority Opinion failed to mention the “Santa Maria” of author- Dunlap v. 84 N. H. A ities, 352. fleet of Dunlap, ships its course from tracing of the stars light can traverse the sea with the precision one vessel guided aby compass. On the ocean of words in dis- spilled cussion of the so-called parental immunity doctrine, case of is a Dunlap Dunlap ship with the equipped compass of the quadrant of and the reasoning, logic, maps truth-finding.
In that case the Supreme Hampshire Court New as has the admitted, of this “the Majority Court, great of recent weight American . . . authority but Chief Justice Peaslee sue,” went on “It is say: conceded of parental course that author- ity should be maintained. To this it is also con- end, ceded that the parent should not be account- ordinarily able to the child failure to perform a parental duty, that vindication of personal should not rights be conceded to the child if it would impair the discharge of such duties. Thus far the reasons de- commonly nominated public policy For mis- carry argument. taken judgment to the extent of or for chastisement, negligent disrepair of the home the father provides, there is no usually liability. These acts all out grow of and pertain to the relation of parent and child. The relation rise gives to the to have duty alleged been vi- . . olated. . But there be acts aré not clearly brutally father who such relation. to be referred to daughter, ought outrages not to his his son or assaults peace parenthood plead of the and the be heard to compensation seeking an action as answers to home peace wrong. has never been idea . . . the against the prevent suits certain held repudiated suits be parent, as to here and has been before, As stated ... often husband and wife tween for the denial debatable excuse advanced sole *28 upon right have a suit would to sue is the effect child’s discipline family the situation therefore, and life. If, matters at those that the suit will not is such affect theory not and it should the the reason all, for fails applied. a situation here."* he There such already IAs have
That is the situation here also. argue suggested, extreme to it is chimerical the her mother Karen Parks a suit the infant discipline adversely Parks home. could affect Hampshire Supreme . “. . said also: Court of New suability the fact which establishes the essential provided satisfying judg- has the father is that he way removes the suit from the in some which ment promotive family of discord.” The essential fact class provided Mr. is that Parks has for satis- at bar the case any judgment fying rendered the mother in litigation promo- way removes the class family discord. tive heartily observations of
I concur the Su- Hampshire preme that: of New Court family together is held “The communal and its con- by something legal tinuity finer than assured com- mand.” structure fear that will
“The be under- family, a member of while if the minor, mined shall * mine, throughout unless indicated. otherwise Italics gain experience is not such sue, justified by have.” we
“For the sound- these reasons one well question ness line recent American cases a gen- denying eral accountability either malicious or those caused intervention.” wrongs by active Court of last resort State is charged with any If an responsibility the law. upholding appel late court precedent and ignores extends authority of the law with decisions of thoroughfare arbitrary based on no conclusions, changing conditions, high of stare decisis will way collapse crumble into the waters of chaotic de Without well irresponsibility. fined specified courses, and established directions, routes the traveller law, could seeking justice wander into fall easily over unmarked quagmires precipices of disaster and ruin. Nevertheless does happen from time to time that an appellate court called upon to extend a certain jurisprudential road or alter an established route or stake out a new road over way territory heretofore traversed. Although *29 has Court rendered decisions on already related and in subjects the Minkin did, indicate a case, desired in direction cases of this has kind, laid yet down a and solid permanent turnpike the terra through in in of cognita Pennsylvania tort parent-child relation This ship. perfect case offered the for opportunity lay down the rule for all those ing who find might them selves the unfortunate circumstance which this case reveals.* * opportunity lay had It a similar down a rule consonant justice Springfield Township, with law and in the case of Boorse 109, advantage opportunity.
377 Pa. but it failed to take of that consequence, strange In Pennsylvania we now have the situation in .may municipality that a negligence not be sued in tort for the of policeman foot, if municipality its he is on responsible- but the surveying terrain, of the
This for case called testing topography, the earth of of the examination type of the and direction as to the for a determination sur- highway. such a This refused to make new Court majority vey. in a It to note that was content highway travelled in a certain direction States, ignoring that direction must be therefore that correct, way- course carried the in those states the indicated mapped out same calamitous destination farers plaintiff Majority was in the case. The for the instant splendid thoroughfare willing reason- of overlook ing Washington It in the in the Borst case. State of eyes difficulty averting no the excel- found parkway logic Hampshire lently New ballasted Dunlap taking It case. insists on the law over interspersed arbitrary rough road with rocks conclu- depressed sequiturs, soggy holes of non with with sions, public and indi- the waters of indifference to welfare justice. glance magnificent It at vidual refuses to subject Mary- on this in the States of boulevards built Virginia, Oregon, Georgia West Ohio, Missouri, land, Oklahoma. 16-year In Lusk v. 113 W. the case of V. Lusk, injured oper girl, in a school who was owned and old by her under a contract father school ated brought an action her father and was board, Supreme Virginia Court West re nonsuited. (and “A maxim the and said’ common law versed matter) ages is when the reason for a rule (cessante legis itself ceases ratione the rule ces ceases ipsa lex.) applying There no reason sat rule unfriendly This action is not instant case. as be daughter recovery by A father. tween *30 Stoops Muhorn, damages policeman v. is in an automobile. if the Pa. 132. is no loss to In him. their unite in favor interests fact, recovery, of her but without hint of ‘domestic fraud and (charged cases.) collusion’ filial some There no pitting daughter against recrimination and no father this case. No strained relations contrary, daughter will follow. On the must honor provide attempting compensation father for Family harmony is assured in- misfortune. disrupted. wrong righted ‘privi- A stead instead of of leged’. parental immunity,
“When no need exists for gratuity. courts should not extend it as a Without such nothing way stands in extension, of this action. may bring It is familiar law a child to account wrongful disposition of the child’s own’ property. It must be said that courts are more con- property person siderate the child than of (when family relationship.)” unaffected Signs Signs, supra, In boy the case of a seven years injured age through opera negligent was gasoline pump tion of a owned his father. The child brought question suit his father and the arose litigation permitted. as to whether such should be Supreme Court of Ohio allowed the suit and said: “In these modern with the times, advent of the motor vehi growing complications cle and of business and in dustry age in an living where industrial we are changed under conditions, would-seem a fantastic anomaly that in case where two minor children were negligently injured operation of a one business, stranger, compensation could recover them, injuries and the other a minor child one, of the owner of the business could not.”*
* A verdict later obtained was reversed because tbe child was trespasser, principle parental responsibility but tbe tort not disturbed.
324 boy Ore. a v. 189 282,
In case of Cowgill Boock, the father, apparently when his 17 of lost life years age both they his car into a river drove intoxicated, filed estate boy’s The administrator drowned. es the father’s action the administrator an against appealed, a defendant tate recovered verdict. relationship. in a non-liability parent-child urging verdict and said affirmed the Supreme Oregon Court tort “should cases parental the rule of immunity that As one. stated not be an absolute considered v. 113 17, Lusk W. Va. Lusk, case of well considered ordinary this rule above . . . must not exalt ‘we 19, ” common sense.’ that appear In State it would York, New a unemancipated par child still sue while as a injuries” for “unintended sustained personal ent re the rule has been parent’s negligence, result of the suit will laxed to extent that a be entertained if act was negligent performed can shown Siembab v. Siem wantonly, “willfully, culpably.” 134 S. 2nd. 437. N. Y. bab, have allowed been children against
Recoveries Dix v. 171 Mo. 266; the cases of App. parents Martin, 25 109; v. 48 S. W. 2d v. Wright Wells Wells, Wright, Clasen v. 69 Nebr. 721; Ga. 278. Appeal Pruhs, In F. W. Supp. Davis James Smith, a a while in his minor, passenger Davis father’s auto- in an injured accident which killed mobile, an action in trespass father. He brought for his His mother injuries. father’s estate also sued sustained reason of her injuries. son’s damages of the estate of the The administrator deceased father inter a on dismiss, ground filed motion alia, did not state cause of action the claimant since a no has recoverable rights minor a parent Judge Lord trespass. United States District schol- very District, Pennsylvania, Eastern Court, minor-plain- held Opinion and exhaustive arly “The declaring: tiff did set forth valid legal claim, legal more recent decisions and view the modern to be that on the subject appear authorities would where non-parental only rule of liability apply *32 his while the is injuries parent pa- occur exercising in rental in the narrow origi- sense.” duty (Emphasis nal Opinion.) le-
The the wholesome ignores Majority apparently of of all these gal appeal elementary justice eases, which logic pristine reasoning governs them, and is satisfied States go which, with the them, along in deci- although predominating number, found their on sions the same fallacious exploded the same theory, and the same unrealistic hypotheses, surmises which form the basis for the decision in case at bar.
Even if had child-parent litigation been at one time in tabooed that taboo was in Pennsylvania, lifted auto- mobile accident eases by Motor Vehicle Re- Safety Act of 1945. The sponsibility plaintiff has well argued parental here that the rule immunity (if ever existed) was modified when the Legislature all provided motorists are required to take out insurance or be other- wise responsible damages resulting the negli- gent operation of motor vehicles. The Majority says argument “farfetched.” IBut do not need to see any telescope logic argument. The had Legislature but one in object enacting fi- motorist nancial legislation that was to to the ex- assure, tent that such assurance was possible, every victim of a tortious automobile accident the financial fulfill- ment of the verdict which might be rendered against the motorists tortfeasor. In accordance with the pro- visions the Act Mr. Parks purchased insurance to all the safeguard people the State from the negligent by of motor himself or wife. vehicle operation protected His included perforce own child was exception. no On what made Legislature group. an exception? By make does the basis, then, Majority that out of all say does the authority Majority what injured could be population Pennsylvania recover the Parks’ could negligence everyone through him his own child? Where does the Ma- but does it exception find that where jority statute, does it discover it accepted locate it where law, upon does it meet it in the logic, fields where justice? whole world covered that the “a fact Majority says must be- is irrelevant since exist liability insurance applicable policy insurance becomes
fore such and cannot establish liability.” insurance should not of the financial responsibility But the whole purpose on the is to victims of protect negligence legislation *33 precede must liability payment, highways. Naturally before natu- trial must come the verdict, the naturally before the go payment, verdict must naturally the rally the But how is there to be horse before cart. goes the is there to be the establish- trial and a verdict —how child is injured permitted unless the ment of liability maintain a action? legal Opinion being evidence of Majority gives The whole principle a fetish and established guided by the masthead of its the argument has nailed to law. It is ship and the although of “Family Unity” shibboleth shoals of family rocks and disunity for the heading it assumes will be held the to- Majority disaster, and is under sailing the the ship because flag simply gether absolutism. of parental conjured up, theorists anti-Columbian
As in 1491 the hazards oceanic the voyage, a westward drag- whirlpools, ferocious sea and submarine animals, child-parent litigation Majority le- sees in ons, intrigue. gal conspiracy It monsters of and collusion, permitted parents says if a is to sue its who that parents join carry offspring and will insurance, cooperate company. In and forces to sink the insurance respect Majority opposing this travels two direc- Firstly, argues child-parent litigation if tions. it that permitted, cut be torn asunder and will pieces; child-parent argues then that if liti- gation prohibited family unity is not will be weld- together fighting ed in an indissoluble union the insur- company. Majority ance The would travel east simultaneously. west travelling westwardly, Majority says
While that imposes upon coverage insurance the insured cooperating duty company, with the insurance parent conscientiously then it asks: “How could a com- ply cooperation policy with the clause of the insurance and at the same time be mindful of his natural love Majority and affection for the . .?” child . here upon say, takes itself an awesome I must most and, assumption. unwarranted It assumes that in each case coverage where there is insurance the insurance com- pany deny respon- demands insured defendant sibility Majority practically says the accident. long injured person so as there is insurance, wrong must be and the insured motorist in the in.the right. way if any Therefore, insured concedes wrong proof noncooperation he was *34 company proof the insurance and that this amounts to of collusion victim of the accident. This is interpretation. appalling par- It almost amounts to tisanship. Certainly op- it is a conclusion which is posed experience. everyday companies Insurance are settling constantly cases because thé facts, as related li- by reveal other witnesses, insured as well as part ability on the the motorist. of appear Majority con- more is that It would possibility is about than it of collusion cerned about the disharmony collusion because it mentions upon opinion. basis what But or four times in its three charge cannot be for it of collusion, does it make this anything regarded than an other accusation? perjury testimony, Majority suggests distortion of predicate Upon it such serious does what witnesses. slightest charges scintilla remotest ? There not the or is suggestion is or would record that there the whole parties in But, this lawsuit. be collusion between the purpose argument there of the let us assume possibility lie in the mother would be the could give not also a verdict. Must there order to pre- possibility facts would be be conceded exag- honestly and without coloration or sented in court deny geration? can this On what basis Court possibility just another of one is offset because go jury possibility, and both of which before a court adjudication? impartial possibility always of fabri- collusion, There falsification but with able and court, cation attorneys on either is not side, zealous misconduct sug- prevalent factor which this Court would seem to gest friends sue is. The best of each other, brothers appear opposite frequently on sisters sides’of nephews, godfathers table, aunts, uncles, counsel litigation godchildren are often adversaries in but no litigation suggests that such should be outlawed be- one possibility of collusion. cause Majority Opinion insists possibility that “The action such a situation itself is of collusive sound general rejecting liability for not rule where reason present.” position strange This is a insurance indeed *35 appellate namely, for an court to that take, because (without proof possibility sug- any whatsoever for gesting possibility), the courthouse collusion, be should closed to victims of motor accidents where parental relation is involved. conjures up Majority labyrin- complicated, a problem long paragraphs thian after four in- which, argumentation regarding inability volved a husband’s up by saying to sue ends “It wife, would highly permit recovery unconscionable to a in this suit by belongs the husband a loss which to both the wife permit recovery and the husband and to share a by wrong.” caused her own The one-sentence answer paragraphs to the four is that the wife would not be recovery sharing by wrong. caused her own expenses father is liable for incurred and to be incurred child-plaintiff, in behalf of the and he would be entitled expenses. to a verdict to such cover The mother as a any recovery, defendant would not be entitled to part any Why would not receive the verdict. would be unconscionable for the father what receive mystery him authorizes law to receive is a I which Opinion. Majority am to fathom from the unable A study Majority of the Minhin case, which the cites, beginning I refer at the of will Dissent, supply Majority’s to the the answer assumed dilemma. very query In Majority case the raised here disposed discussed, considered, of. In that pointed this Court out that in case, order to allow a minor child to sue mother, the mother should be party plaintiff. added as In that case this said Court plaintiff that a mother could be and a defendant at the same time. Here are this Court’s words: “Defend- procedural suggestion difficulty aof ant’s that she placed, herself is not not sue substantial. She is legislature, in control of the action nominal when but, represen- in a the suit
there are she conducts children, just capacity, administra- some states an as in tative representative required bring suit as tor is *36 legislation parties benefit the allows for whose the writing ex- recovery.” for the Court, Justice Linn, plained: com- be heard to [the mother] “She cannot given required right plain to that she is exercise plaintiff, as fidu- must act as law; she ciary.” Majority’s on unconscionabil- the observation
Thus sharing ity in this wife-defendant’s in the verdict of the superfluous. entirely not share would case is She As in the Minkin which case, was said verdict. Majority “If shown, does not follow: it be cites but fa- of the of claim cause avers, statement negligence, defendant-mother’s ther’s death was the right, nothing take in the but suit; in her can own she, sharing, she disabled herself from the fact that has deprive beneficiary minor—of will not other —the statutory to recover.” benefit question Pennsylvania paren- momentous The responsibility has in this case for been decided tal tort Opinion Majority law on shibboleth. not on but peace family injury when, for calls tranquillity has the mantle of at the hearthstone, death family unity already'been when the rent. It calls happiness already family has been broken. cord of silver pillars strengthening It calls prohibits already in and then has caved the roof when ready, willing, employment which are of means and re-furnish the home with rebuild the roof able to harmony, and contentment. health, problems bar in the case at facts gates great of a they took Court de-. raised open gates. It took refused to but the Court cisión, forward-looking bridge aof definitive, to the the Court but it refused contractual and tort rights, on position to a needed turn to cross It took the Court bridge. tbe injus- order avoid the quicksands in the road in turn. to take the tice. The Court declined I dissent. most emphatically Brugger, Appellant.
Kuhns