Barlow v. Iblings, No. 52664

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLARSON; GARFIELD; BECKER; MASON
Citation261 Iowa 713,156 N.W.2d 105
PartiesCharles BARLOW, Next Friend of Danny Iblings, a Minor, Appellee, v. Glenn IBLINGS, Appellant.
Decision Date06 February 1968
Docket NumberNo. 52664

Page 105

156 N.W.2d 105
261 Iowa 713
Charles BARLOW, Next Friend of Danny Iblings, a Minor, Appellee,
v.
Glenn IBLINGS, Appellant.
No. 52664.
Supreme Court of Iowa.
Feb. 6, 1968.

[261 Iowa 714] Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellant.

L. E. Linnan, Algona, and Hamilton & Connell, Storm Lake, for appellee.

LARSON, Justice.

This appeal presents but one question--can an unemancipated minor child maintain a cause of action against his father for personal injuries proximately caused by the father's ordinary negligence? This action involves only a parent and child relationship and does not involve any willful or malicious conduct. There is little or no dispute as to the relevant facts.

From the pleadings it appears that Glenn Iblings, the defendant, operated a cafe in Algona, Iowa. In the kitchen of the cafe was an electric meat grinder which could be activated by a switch so located on the grinder that a child of six years could reach it.

In this action for damages brought by his next friend, defendant's son Danny Iblings, six years of age, alleged that he was in the cafe kitchen with his father, as he had been on previous occasions, that although the father knew he was in the

Page 106

kitchen and knew of his interest and curiosity about the grinder, he was left alone in that area, and that when he turned on the meat grinder and inserted his hand therein, he lost all of the fingers and a portion of one hand. In Count I the child alleged his father's negligence was the proximate cause of these injuries, and in Count II alleged insurance coverage of the hazard.

The trial court sustained defendant's motion to dismiss Count II relating to insurance and overruled his motion to dismiss based upon a failure 'to state a claim upon which any relief' could be granted in Iowa. On application defendant was granted permission to take this interlocutory appeal. Plaintiff did not appeal the ruling on Count II.

I. Although the question as to whether an unemancipated child can maintain an action against his parent to recover damages for negligence has been presented to this court previously, we have not given it serious consideration in the past nor have we found it necessary to rule thereon. In Cody v. [261 Iowa 715] J. A. Dodds & Sons, 252 Iowa 1394, 1396, 110 N.W.2d 255, disposed of on other grounds, we said: 'While there is respectable and substantial authority in other jurisdictions sustaining (defendant's position) * * * we do not find that the question has been determined in Iowa.' Also see 47 Iowa L.Rev. 1159 (1962).

In 39 Am.Jur., Parent and Child, § 90, it is stated: 'Although there is nothing in the English decisions to suggest that under the early common law a child could not sue its parent for a personal tort, it has become established by the weight of authority in this country that no such action can be maintained by the child.' Also see Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055, and 43 Harv.L.Rev. 1058, for extended discussions. Our own research of the question leads us to conclude that the English decisions are of no aid. We find no decision, dictum, or textwriting that mentioned the subject as late as the 18th century. It would be pure speculation and conjecture to state categorically that a child could sue to enforce personal rights under the common law. See annotation, 19 A.L.R.2d 423. All that can be gleaned from the early common law is that there were parental rights and duties which may have been superior to the independent personal rights and duties of the child. Although the unique relationship of parent and child was recognized, the only early development in this area was that of property rights. Dunlap v. Dunlap, supra, and citations. It is abundantly clear, however, that the doctrine of parental or family immunity in tort matters originated as a court-made doctrine and did not arise from code edicts or as a result of legislative enactments.

II. The doctrine of parental immunity had its beginning in the United States in the landmark case of Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 13 L.R.A. 682 (1891). In that case an unemancipated minor daughter sued her mother for damages resulting from the alleged willful, illegal, and malicious imprisonment of the daughter in an insane asylum. It was the mother's claim that this restraint was necessary to protect the daughter and the family from the [261 Iowa 716] daughter's loose and unchaste habits. In reversing the judgment for the child, the court said in part: 'So long as the parent is under obligation to care for, guide and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. * * * The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.' This decision was followed in 1903 by McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, and later by Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893, 107 Am.St.Rep. 805. All of these were extreme cases and the rule propounded therein has been modified by recent cases. Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149.

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At least seven reasons have been advanced in the opinions from various jurisdictions in support of the proposition that an unemancipated minor may not sue his parent for personal injuries arising from the parent's ordinary negligence. Briefly, they are: (1) danger of fraud, (2) possibility of succession, (3) family exchequer, (4) analogy to denial of a cause of action between husband and wife, (5) domestic tranquillity, (6) domestic government, and (7) parental discipline and control. 5 Vill.L.Rev. 521, 529; 43 Harv.L.Rev. 1030, 1072--1077; 36 Iowa L.Rev. 384. Those efforts to justify the doctrine's underlying public policy have resulted in considerable criticism by text and editorial writers and some judges, some with merit and some without. See Harper & James, The Law of Torts, §§ 8.11, 13.4 (1956); Prosser, Law of Torts, § 101 (2d ed. 1955); McCurdy, 'Torts between Persons in Domestic Relation,' 43 Harv.L.Rev. 1030 (1930); Seavey, 'Torts,', 1958 Annual Survey of American Law, p. 487; 26 Tenn.L.Rev. 561 (1959); 58 Colum.L.Rev. 576 (1958); 19 U.Pitt.L.Rev. 681 (1958); 38 Cornell L.Q. 462 (1953); 10 Wash. & Lee L.Rev. 121 (1953); 39 Va.L.Rev. 389 (1953); 7 Wyo.L.J. 199 (1953); 2 De Paul L.Rev. 119 (1952); 64 Harv.L.Rev. 1208 (1951); 4 Vand.L.Rev. 377 (1951); 7 Fordham L.Rev. 459 (1938); 79 U.Pa.L.Rev. 80 (1930); cf. 28 U.Cinc.L.Rev. 540 (1959); 33 St. John's L.Rev. 310 (1959); 31 Temp.L.Q. 233 (1958); 3 Vill.L.Rev. 577 (1958); 9 Syracuse L.Rev. 346 (1958); [261 Iowa 717] 55 Mich.L.Rev. 463 (1957); 30 So.Cal.L.Rev. 368 (1957); 34 Chi.Kent L.Rev. 333 (1956); 51 Nw.U.L.Rev. 610 (1956); 35 B.U.L.Rev. 205 (1955); 7 Okla.L.Rev. 238 (1954); 2 Buffalo L.Rev. 166 (1952); 5 S.C.L.Q. 294 (1952); 5 Ala.L.Rev. 173 (1952); 6 U.Miami L.Q. 617 (1952); 1 Catholic U.L.Rev. 161 (1951); 26 Ind.L.J. 465 (1951); 22 Miss.L.J. 174 (1951); 23 Rocky Mt.L.Rev. 225 (1951); 30 Ore.L.Rev. 86 (1950); 32 Marq.L.Rev. 289 (1948); 28 Geo.L.J. 430 (1939); 86 U.Pa.L.Rev. 909 (1938); 14 Tenn.L.Rev. 294 (1936); 11 N.C.L.Rev. 352 (1933); 33 Colum.L.Rev. 360 (1933); 20 Calif.L.Rev. 342 (1932); 7 Notre Dame Law. 259 (1932); 16 Cornell L.Q. 386 (1931); 15 Minn.L.Rev. 126 (1930); 16 Catholic Univ.L.Rev. 484; 12 So.Dak.L.Rev. 364. These criticisms are largely predicated upon the alleged unfairness and discrimination against an individual because he is an unemanicpated minor in the family unit. The right of the minor to collect damages for every breach of his parents' legal duty, they contend, is sufficient to overcome the evil which could result by such actions between parent and child. See Hastings v. Hastings, 33 N.J. 247, 163 A.2d 147, 149. We are unable to agree with that conclusion.

Appellee concedes the public policy upon which this doctrine was first announced was sound, but contends, due to many changes in our social and economic life today, the doctrine of parental immunity is obsolete and should be renounced by the courts. For that view, he cites and relies upon the cases of Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743; Borst v. Borst, supra; Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540; Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538; Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66; Briere v. Briere (N.H.), 224 A.2d 588; Ertl v. Ertl, 30 Wis.2d 372, 141 N.W.2d 208, and citations; Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497; Maine v. James Maine & Sons Co., 198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161. He urges us to adopt the position of numerous text and law review articles and the New Hampshire, Wisconsin, and Minnesota opinions applying them.

We cannot concede that the sound public policy upon which this doctrine was predicated has changed, that it should be changed, or that we should lend our aid to its rejection or [261 Iowa 718] dissipation in Iowa. It is our feeling that the basic reasons for the doctrine have remained the same over the years. Domestic tranquillity, proper parental discipline and control, family unity,

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and social responsibility, Are ample grounds to sustain the policy and the doctrine. Nahas v. Noble, 77 N.M. 139, 420 P.2d 127, and citations. Other reasons advanced are invariably premised upon the promulgation and promotion of the family as a unit and a steadfast belief that such actions would upset and tend to destroy this vital relationship. Most of the confusion as to this doctrine, we think, has developed as a result of some courts' efforts to expand exceptions to it without a sound or substantial basis therefor. Only one of these needs consideration in this case, and it will be considered in a later division.

III. It will be remembered that here we are dealing with a situation where the...

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17 practice notes
  • Chase v. Greyhound Lines, Inc., No. CC
    • United States
    • Supreme Court of West Virginia
    • February 27, 1973
    ...922; Begley v. Kohl and Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907; Orefice v. Albert, 237 So.2d 142 (Fla.); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105; Skinner v. Whitely, 281 N.C. 476, 189 S.E.2d 230; Felderhoff v. Felderhoff, 473 S.W.2d 928 Page 816 Parent-unemancipated ch......
  • Terror Min. Co., Inc. v. Roter, No. 92SC693
    • United States
    • Colorado Supreme Court of Colorado
    • January 10, 1994
    ...the parental immunity doctrine previously adopted by this court and recognized in other jurisdictions. For example, in Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105, 113 (Iowa 1968), overruled on other grounds by, Turner v. Turner, 304 N.W.2d 786 (Iowa 1981), a child was injured in a meat......
  • Turner v. Turner, No. 64320
    • United States
    • United States State Supreme Court of Iowa
    • April 15, 1981
    ...of Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee. Considered en banc. McCORMICK, Justice. In Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968), this court made an exception to the common law right of unemancipated minor children to sue their parents. The court held t......
  • Brunner v. Hutchinson Div. Lear-Siegler, Inc., No. Civ. 89-5065.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 15, 1991
    ...and, (4) the depletion of family resources. See Begley v. Kohl & Madden Printing, 157 Conn. 445, 254 A.2d 907 (1969); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968); Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972); Orefice v. Albert, 237 So.2d 142 These policy arguments, how......
  • Request a trial to view additional results
17 cases
  • Chase v. Greyhound Lines, Inc., No. CC
    • United States
    • Supreme Court of West Virginia
    • February 27, 1973
    ...922; Begley v. Kohl and Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907; Orefice v. Albert, 237 So.2d 142 (Fla.); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105; Skinner v. Whitely, 281 N.C. 476, 189 S.E.2d 230; Felderhoff v. Felderhoff, 473 S.W.2d 928 Page 816 Parent-unemancipated ch......
  • Terror Min. Co., Inc. v. Roter, No. 92SC693
    • United States
    • Colorado Supreme Court of Colorado
    • January 10, 1994
    ...the parental immunity doctrine previously adopted by this court and recognized in other jurisdictions. For example, in Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105, 113 (Iowa 1968), overruled on other grounds by, Turner v. Turner, 304 N.W.2d 786 (Iowa 1981), a child was injured in a meat......
  • Turner v. Turner, No. 64320
    • United States
    • United States State Supreme Court of Iowa
    • April 15, 1981
    ...of Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee. Considered en banc. McCORMICK, Justice. In Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968), this court made an exception to the common law right of unemancipated minor children to sue their parents. The court held t......
  • Brunner v. Hutchinson Div. Lear-Siegler, Inc., No. Civ. 89-5065.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 15, 1991
    ...and, (4) the depletion of family resources. See Begley v. Kohl & Madden Printing, 157 Conn. 445, 254 A.2d 907 (1969); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968); Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972); Orefice v. Albert, 237 So.2d 142 These policy arguments, how......
  • Request a trial to view additional results

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