Borst v. Borst

• Decision Date: 11 December 1952
• Docket Number: No. 32167,32167
• Citation: 251 P.2d 149,41 Wn.2d 642
• Parties: BORST, v. BORST et al.
• Court: Washington Supreme Court

Page 642

41 Wn.2d 642

251 P.2d 149

BORST, v. BORST et al.

No. 32167.

Supreme Court of Washington, en Banc.

Dec. 11, 1952.

Ned W. Kimball, Waterville, Tonkoff & Holst and Blaine Hopp, Jr., Yakima, for appellant.

Hughes & Jeffers, Wenatchee, for respondents.

HAMLEY, Justice.

May an unemancipated minor recover damages from a parent for permanent injuries sustained by reason of the parent's negligence while operating a truck for business purposes?

The trial court answered 'No,' relying on Roller v. Roller, 37 Wash. 242, 79 P. 788, 789, 68 L.R.A. 893, 107 Am.St.Rep. 805, 3 Ann.Cas. 1, and sustained a demurrer to the complaint. Plaintiff elected to stand on the complaint, a judgment of dismissal with prejudice was entered, and plaintiff now appeals.

The action was brought by the minor child through his duly appointed guardian ad litem. The complaint alleges that Bruce Borst, a minor five years of age, resides at the home of his father, Paul H. Borst, in Coulee City, Washington; that the father and one Frank Borst, both of whom are named as defendants, are partners, and are the owners of a certain truck and trailer used by them to transport property for hire, as a common carrier; that on June 13, 1951, the son was amusing himself in the front yard of the family home along the edge of the lawn, and was playing with a certain cardboard box; that the father, while operating the partnership truck and trailer along the street in a reckless and unlawful manner, drove the vehicles over the person of the son (who was apparently then playing in the street with the cardboard box); and that, as a result, the son sustained painful and permanent personal injuries. The prayer of the complaint is for general damages in the sum of $100,000. A prayer for $3,550 special damages, representing hospital and medical expenses, was stricken on stipulation.

In Roller v. Roller, it was held that a minor unemancipated daughter could not maintain an action against her father for rape. In reaching this conclusion, the court stated that there is a general rule of the common law prohibiting a minor child from suing a parent for damages arising in tort; that this rule is based upon the interest which society has in preserving harmony in domestic relations; and that while it can be said, with some reason, that the family relations had already been irreparably disturbed, if it be once established that a child has a right to sue a parent for a tort, 'there is no practical line of damarkation which can be drawn.'

Two further reasons for the immunity rule as between parent and child were stated: (1) To permit a child to recover a judgment from a parent would be absurd, for, in the event of the child's death, the parent would become heir to the very property which had been wrested from him by the law; and (2) the public has an interest in the financial welfare of all minor members of the family, and the family property should therefore not be appropriated by any one minor child. No authorities were cited in support of these propositions.

The only decision cited in the Roller opinion as actually applying such a rule of immunity in actions between parent and child is Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682. In proof of the announced common-law rule, the opinion refers to Cooley on Torts, p. 276, and Schouler on Domestic Relations, § 275. It was also stated in the opinion that the relationship between parent and child is analogous to coverture 'where a husband or wife is forbidden to sue the other spouse for torts * * *.' Two decisions of other court, applying such an immunity rule in the case of husband and wife, were cited.

Referring first to the law on the subject as it existed at the time of our decision in the Roller case, there appear to have been no English or American appellate court decisions on this question prior to 1891. Wick v. Wick, 192 Wis. 260, 261, 212 N.W. 787, 52 A.L.R. 1113; Dunlap v. Dunlap, 84 N.H. 352, 358, 150 A. 905, 906, 71 A.L.R. 1055; Worrell v. Worrell, 174 Va. 11, 18, 4 S.E.2d 343, 345; Torts Between Persons in Domestic Relation, McCurdy, 43 Harvard Law Review 1030, 1061 et seq.; 19 A.L.R.2d 423, 425, annotation. The early English and American text writing on the subject is meager, conflicting and obscure. Such attention as the early writers gave to the subject was limited, for the most part, to cases where the child had been injured due to an excess of disciplinary action. As to such cases, the predominant view seems to have favored a cause of action in the child, and no writer stated categorically that such suits were forbidden by commonlaw rule. See Reeve, Domestic Relations 288 (1816); Addison, Torts 423 (1860); Schouler, Domestic Relations (3d ed.) § 275 (1882); (5th ed.) 443, § 275 (1895); Eversley, Domestic Relations 601 (1885); Pollock on Torts 107 (1887); Cooley on Torts (2d ed.) 276 (1888); Clerk and Lindsell, Torts 152 (1889).

Cooley is quoted in Roller v. Roller as saying that 'For an injury suffered by the child in that relation, no action will lie at the common law.' Cooley on Torts (2d ed.) 276 (1888). Reference to the context indicates that Cooley was referring to the failure of a parent to support his child, and to torts of third persons, resulting in injury to the parent and consequent deprivation of the child's source of support. The final sentence of the same paragraph in Cooley's text reads: 'Where the child is injured in his own property or person, redress has no necessary connection with the family relation.'

Elsewhere in his work, Cooley refers to parental disciplinary action, such as restraint of the person and corporal punishment. In that connection, the view is expressed that, where the parent exceeds reasonable bounds, there is no principle which precludes the child from recovering damages. He goes on the say, however, that the policy of permitting actions which thus invite the child to contest the parent's authority is so questionable that it may well be doubted if the right would ever be sanctioned. Cooley on Torts (2d ed.) 197 (1888).

In the portion of his text quoted in the Roller opinion, Professor Schouler stated that suits by children, after becoming of age, against a parent for alleged maltreatment or other injury 'seems abhorrent to the idea of family discipline * * * and the privacy and mutual confidence which should obtain in the household.' He therefore urged that suits in tort by child against parent should be discouraged by the courts. Schouler, Domestic Relations (3d ed.) § 275 (1882); (5th ed.) 443, § 275 (1895). It is uncertain whether Schouler meant by this that there is no cause of action, or only that such causes of action should be discouraged. 43 Harvard Law Review 1030, 1061.

The first appellate court decision on the subject is Hewlett v. George, 68 Miss. 703, 9 So. 885, 887, 13 L.R.A. 682, decided by the supreme court of Mississippi in 1891. In the Hewlett case, a minor, unemancipated daughter sued her mother for damages resulting from the alleged willful, illegal and malicious imprisoning 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 daughter's loose and unchaste habits. A judgment for the plaintiff was reversed in an opinion, only one paragraph of which was devoted to this particular problem. The court cited no authority and did not represent that its view expressed any established common-law rule. The heart of the decision is contained in these words:

'* * * But 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 peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. 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.'

The question was next dealt with in McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, decided in 1903. Here the stepmother was charged with cruel and inhuman treatment of the plaintiff child, with the consent of the defendant father. The court affirmed a judgment for the defendant, and, for the first time by any court or text authority, announced that there was a common-law rule denying to the child a civil remedy in such a case. In support of this view, the court cited Hewlett v. George (which had not purported to announce a common-law rule) and several cases and authorities dealing with the husband's immunity to suit by his wife.

This was the state of the law when Roller v. Roller was decided in 1905. Our opinion in that case, the third appellate court decision dealing with the subject, was the first to apply the so-called immunity rule in a situation not involving family discipline. In view of the foregoing summary of the law as it had developed up to that time, the statement in that opinion that 'at common law it is well established that a minor child cannot sue a parent for a tort', is clearly erroneous.

Taking their cue from the Hewlett, McKelvey and Roller cases, the great majority of decisions dealing with the subject since 1905 have applied the immunity rule so as to relieve parents from liability in such cases. For excellent reviews of the decisional law on the subject, see Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055; Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343; Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405; Mahnke v. Moore, Md., 77 A.2d 923; Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743; Prosser on Torts 905, § 99; 43 Harvard Law Review 1030, 1056...