Cannon v. Cannon

• Citation: 40 N.E.2d 236,287 N.Y. 425
• Parties: CANNON v. CANNON.
• Decision Date: 05 March 1942
• Court: New York Court of Appeals

287 N.Y. 425

40 N.E.2d 236

CANNON

v.CANNON.

Court of Appeals of New York.

March 5, 1942.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Harvey P. Cannon, Jr., an infant, by Salvador J. Capecelatro, his guardian ad litem, against Harvey P. Cannon, individually and as administrator of the estate of Grace B. Cannon, deceased, for personal injuries. From a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered June 11, 1940, 259 App.Div. 1055, 20 N.Y.S.2d 605, unanimously affirming a judgment in favor of defendant entered upon an order of the court at Special Term, Cross, J., which granted a motion by defendant for a dismissal of the complaint, 174 Misc. 314, 20 N.Y.S.2d 603, plaintiff appeals by permission, a motion for leave to appeal having been denied by the Appellate Division, 259 App.Div. 1072, 21 N.Y.S.2d 1023.

Judgment affirmed.

Salvador J. Capecelatro, of Utica, for appellant.

Abram G. Senior and Morgan F. Bisselle, both of Utica, for respondent.

LEWIS, Judge.

May an unemancipated minor child maintain an action against his parents for personal injuries alleged to have been caused by their negligence?

That question was considered in Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551, when the court denied the existence of such a right of action. The question is again presented by the defendant's challenge to the sufficiency of a complaint now before us wherein the plaintiff, an unemancipated minor, demands from his father and the estate of his deceased mother damages for personal injuries which are said to have been sustained through the mother's fault. It is alleged that while the infant plaintiff was a passenger in an automobile owned by his father and driven by his mother with his father's consent, he sustained personal injuries due to his mother's negligence. There are also allegations that the death of the plaintiff's mother, which occurred three days after the plaintiff was injured, was due to injuries suffered by her in the accident which befell them both.

The appellant recognizes the rule of the Sorrentino case, supra. He suggests, however, that our more recent ruling in Rozell v. Rozell, 281 N.Y. 106, 108, 22 N.E.2d 254, 123 A.L.R. 1015 where a recovery for tortious injuries suffered by an unemancipated minor was upheld against his unemancipated sister may have foreshadowed such a change in the policy of the court as will validate the complaint now before us.

In the Rozell case, supra, it was said (Rippey, J., 281 N.Y. at page 109, 22 N.E.2d at page 255): ‘Persons who are not members of the family when injured through the tortious negligence of minors may recover damages against them by way of compensation for injuries sustained. * * * No logical reason nor reported authority exists to indicate that the rule of liability should be changed when brothers and sisters are involved.’

In the case now before us, unlike the problem in the Rozell case, we deal with that natural kinship between parent and child which involves legal duties peculiar to that relationship, and as to which both reason and authority dictate our adherence to the rule of the Sorrentino case, supra.

The law requires of parents that they provide care, maintenance and guidance for their unemancipated minor child. To that end they are entitled to his custody. Such duties and rights may be enforced by legal process. Thus has the law recognized in the family something more than a social unit, something more practical than a spiritual concept. It has sanctioned the family relationship particularly the relationship of parent and child as the basis for regulating those reciprocal obligations between parent and child which may be the subject of legal enforcement.

In the process of rearing a child and the fulfillment of the legal duties of care, maintenance and guidance, the conduct of the parents toward the child is of necessity affected by the parental relation. We know that family unity is not created by law. But, as we have seen, the law does not fail to recognize family unity as a factor in human conduct and relationship. As to the child what he may expect from his parents and what he owes to them as a matter of filial duty differ widely from his rights and duties in his relations to those not in loco parentis. As to the parents the law which...