Union Bank & Trust Co. of Mt. Holley, NJ v. First Nat. Bank

• Decision Date: 14 July 1966
• Docket Number: No. 22742,22743.,22742
• Parties: UNION BANK AND TRUST COMPANY OF MT. HOLLEY, NEW JERSEY, as Guardian for John Steven Couch, Appellant, v. The FIRST NATIONAL BANK AND TRUST COMPANY OF WAYNESBORO, PENNSYLVANIA, as Administrator of the Estate of Ellen Jordon Couch, Appellee. MUSKEGON BANK AND TRUST COMPANY, MUSKEGON, MICHIGAN, as Guardian for Robert James Couch, Appellant, v. The FIRST NATIONAL BANK AND TRUST COMPANY OF WAYNESBORO, PENNSYLVANIA, as Administrator of the Estate of Ellen Jordon Couch, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

362 F.2d 311 (1966)

UNION BANK AND TRUST COMPANY OF MT. HOLLEY, NEW JERSEY, as Guardian for John Steven Couch, Appellant, v. The FIRST NATIONAL BANK AND TRUST COMPANY OF WAYNESBORO, PENNSYLVANIA, as Administrator of the Estate of Ellen Jordon Couch, Appellee.

MUSKEGON BANK AND TRUST COMPANY, MUSKEGON, MICHIGAN, as Guardian for Robert James Couch, Appellant, v. The FIRST NATIONAL BANK AND TRUST COMPANY OF WAYNESBORO, PENNSYLVANIA, as Administrator of the Estate of Ellen Jordon Couch, Appellee.

Nos. 22742, 22743.

United States Court of Appeals Fifth Circuit.

June 13, 1966.

Rehearing Denied July 14, 1966.

Marcus B. Calhoun, Forester & Calhoun, Thomasville, Ga., for appellants.

Roy M. Lilly, T. Heyward Vann, Alexander, Vann & Lilly, Thomasville, Ga., for appellee.

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and KILKENNY,^* District Judge.

TUTTLE, Chief Judge.

This is an appeal by the original plaintiffs, guardians for the minor children of Mrs. Ellen Jordon Couch, deceased, whose estate is represented by the First National Bank and Trust Company of Waynesboro, Pennsylvania. The two suits consolidated for appeal, originated as tort actions filed on behalf of the two unemancipated children of the defendant's decedent. Mrs. Couch was the driver of the automobile in which her children were riding, when the accident occurred that caused her death and that of her husband, and injured the children. The accident occurred in the state of Georgia.

The complaints were identical. They contain three counts. Count One undertook to assert the charge of wilful and wanton negligence against Mrs. Couch as a basis for the sons' recovery against her. Such a claim would be necessary under the Georgia law which prohibits a recovery by an unemancipated child against its parents for a tort caused by ordinary negligence. This count charged the deceased mother with wilful and wanton negligence, alleging that with a conscious indifference to consequences and with a wilful disregard of the safety of the plaintiffs, she wilfully and wantonly drove and operated her vehicle to the left side of the highway at a high and dangerous rate of speed in excess of 60 miles per hour, attempting to pass another vehicle while meeting a vehicle traveling in the opposite direction, and that she collided with the oncoming vehicle on the wrong side of the road, inflicting the injuries complained of.

Count Two alleged ordinary negligence in the operation of the motor vehicle, but then alleged that the deceased mother was covered by a policy of liability insurance which would protect her and her estate in any action for damages resulting from the negligent operation of the motor vehicle. It was claimed that by reason of the existence of this policy of liability insurance, the mother would not be immune to suit by her minor children.

Count Three of the petition charged that the deceased mother was guilty of negligence proximately causing the injuries and that inasmuch as the mother was deceased at the time the suits were brought, her estate should not be immune to suit because of the injuries received by the plaintiffs.

Upon affidavits filed by the sole eyewitness to the accident, and upon testimony by deposition of a state highway patrolman, the case was submitted to the trial court on a motion for summary judgment filed by the defendants. The trial court entered an order dismissing the complaints without assigning reasons therefor. It is apparent, however, that the trial court must have concluded that on the evidence before him there was not an issue to be presented to the jury as to the existence of wilful and wanton misconduct, which would have to be proved under the theory contained in the first count of the complaint, and also because the trial court concluded that the facts alleged in counts two and three would not justify fixing liability in favor of the children against their mother under the applicable Georgia law.

While it appears to be somewhat strange that this cause of action between members of a family residing in Pennsylvania at the time of the accident and residing now in New Jersey and Michigan should be tried in the District Court of the Middle District of Georgia, neither party has raised the question of forum non conveniens, and both parties concede that the law of the place of the accident, which coincides with the law of the forum, the law of the state of Georgia, is to control with respect to the questions touching on the liability of the parties as well as on all procedural matters. While this is a case which might well appeal to a state appellate court as a proper one in which to apply the law of the foreign state which is primarily concerned with the family relationships, we do not find any Georgia decision that would warrant our construing the Georgia Supreme Court opinions in such manner as to justify our looking to the law of any other state than Georgia.

As to count one of the complaint, we concur in the judgment of the trial court to the effect that there was no evidence submitted on the motion for summary judgment that could properly permit an inference by a jury that Mrs. Couch was guilty of wilful or wanton conduct of the kind that must be established under the Georgia rule which denies the right of an unemancipated child to sue its parent for wrongs committed by the latter unless the parent's conduct be such as would amount to a surrender of his right to retain his parental relationship. In the case of Wright v. Wright, 85 Ga. App. 721, 70 S.E.2d 152, 156, the court said:

"If the conduct of the parent here should be found to be mere negligence, as opposed to an act of cruelty sufficient to sever the parental relationship and evidenced by wanton and malicious misconduct on the part of such parent, then the action is one for negligence only and the action would necessarily fail."

The first Georgia case to announce the principle of non-liability of a parent for his negligent tort causing injury to his child is Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708. In that case the Georgia Court of Appeals held that no recovery could be had where acts of ordinary negligence were charged to the parent. The court said:

"Some of the decisions which deny the right of a child to maintain an action of this sort are expressly based upon the theory that the right did not exist at common law, while in other cases the courts have doubted the correctness of this theory and have placed their rulings upon other grounds. Whatever may have been the rule at common law, we are satisfied that it would be against the public policy of this state to allow the maintenance of such an action, and by public policy we mean only the public policy as declared by the public laws."

In the Bulloch case the court dealt with the matter as if it were question of an enforceable right rather than one of denying a remedy. On page 11 of the opinion, 163 S.E. on page 713, the court said:

"Having dealt with the larger question, and having thus concluded that the petition does not set forth a cause of action, even if it sufficiently shows negligence on the part of the defendant, we do not deem it necessary to examine the case further for the purpose of appraising the allegations with reference to negligence and proximate cause."

Appellants here concede that in the absence of a case establishing wilful or wanton misconduct, they would be barred by the Bulloch case but for the allegations contained in counts two and three.

Appellants, by pleading the facts contained in counts two and three, undertake to demonstrate that the case for a right of recovery here is different from that before the Court of Appeals of Georgia in Bulloch. The circumstances that bring about this difference are of two kinds. They contend, first, that the Georgia court placed its decision to deny recovery in the Bulloch case on the tendency to disrupt the family unity if a child were permitted to sue its parents, no matter how clear the negligence of the parent producing injury to the child, the exception being only in such cases as the conduct of the parent was such as to warrant his being deprived of further custody and care of his offspring. The second, and subsidiary basis, appellant says, for the decision in Bulloch, was the reluctance of the court to permit one child to subject his father's assets to his claims and thus deprive the father of the very means by which all of the children were to be supported during minority. Here, in Count two, appellants show that the existence of public liability insurance to cover the loss resulting from a judgment against the parent's estate, would eliminate the second basis of the Georgia court's decision, whereas the fact, alleged in count three, that the mother is now deceased would make unnecessary the application of an immunity doctrine on the ground of disruption of the family unity which would exist if the sued parent were still alive.

Appellants recognize that our duty as a federal court applying state law under Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, is to ascertain what the state law is in a particular situation, and if there is no ...