Chaffin v. Chaffin

• Decision Date: 31 December 1964
• Citation: 239 Or. 374,397 P.2d 771
• Parties: Nancy F. CHAFFIN a Minor, by her Guardian Ad Litem, Flora Edith Chaffin, Appellant, v. Bert L. CHAFFIN, Sr., Respondent. Flora Edith CHAFFIN, Administratrix of the Estate of Emmeline Chaffin, Deceased Appellant, v. Bert L. CHAFFIN, Sr., Respondent. Flora Edith CHAFFIN, Appellant, v. Bert L. CHAFFIN, Sr., Respondent.
• Court: Oregon Supreme Court

Page 771

397 P.2d 771

239 Or. 374

Nancy F. CHAFFIN a Minor, by her Guardian Ad Litem, Flora

Edith Chaffin, Appellant, v. Bert L. CHAFFIN, Sr., Respondent.

Flora Edith CHAFFIN, Administratrix of the Estate of Emmeline Chaffin, Deceased Appellant, v. Bert L. CHAFFIN, Sr., Respondent.

Flora Edith CHAFFIN, Appellant, v. Bert L. CHAFFIN, Sr., Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton, May 4, 1964.

Decided Dec. 31, 1964.

William F. Schroeder, Vale, argued the cause for appellant. On the briefs were Schroeder & Denning, Vale.

James A. Cox, Ontario, argued the cause for respondent. On the brief were Yturri, O'Kief & Cox, Ontario.

Before McALLISTER, C. J., and ROSSMAN PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

PERRY, Justice.

Nancy F. Chaffin, a minor, through Flora Edith Chaffin, her guardian ad litem, brought an action for personal injuries against her father Bert L. Chaffin, Sr.

Flora Edith Chaffin brought an action as administratrix of the estate of Emmeline Chaffin, deceased against Bert L. Chaffin, Sr., the father of the deceased child.

Flora Edith Chaffin also brought an action for personal injuries on her own behalf against her husband Bert L. Chaffin, Sr.

The defendant filed a demurrer to each of the complaints on the ground that each failed to state a cause of action. Each demurrer was sustained by the trial court, and the plaintiff in each action appeals.

The allegations necessary to a determination of the issues presented this court are identical in the complaint of the guardian ad litem and the complaint of the administratrix. Each complaint alleges the following:

'IV.

'That at all times herein mentioned, the defendant was the owner and operator of a certain 1957 Ford Station Wagon. That he was operating it on December 24, 1960, on U. S. Interstate Highway 80 in Malheur County, Oregon, at highway post No. 405.13, approximately six miles North of Ontario, Oregon.

'V.

'That at said time and place, the defendant ran the Fort Station Wagon into and against a 1951 Cadillac Convertible. That immediately following that collision, a second collision occurred when a certain 1955 Ford Coach ran into the Defendant's Ford Station Wagon at that same place.

'VI.

'That at all times herein mentioned, the vehicles mentioned in Paragraphs IV and V were being operated in a southerly direction on Interstate 80, a three lane public highway near the City of Ontario in the County of Malheur, State of Oregon. Said highway was at all times herein mentioned a public highway.

'VII.

'That at all times herein mentioned decedent was an occupant in an automobile owned by his father, Bert L. Chaffin, Sr., and generally described as a 1959 Ford Station Wagon, Oregon License number 9H 294, which at said time was being operated by his father. Said vehicle will be hereafter referred to as the Chaffin vehicle.

'VIII.

'That on or about December 24, 1960, at approximately 3:30 a. m., on Interstate 80, collisions occurred involving the vehicles listed in Paragraphs IV and V. The collisions occurred in the following sequence.

'A Ford truck driven by one Morris Eugene Olsen stopped on Interstate 80. A Dodge driven by one Mariano B. Bilbao swerved to pass the Ford Truck and skidded into the West ditch, coming to rest with its headlights pointing in a northerly direction. The Dodge was in the ditch to the North of the Ford truck. The Cadillac driven by one Armond D. Hegge drove past the Dodge and into the rear of the Ford truck. The Chaffin vehicle then drove into the Cadillac. The Ford coach then drove into and collided with the Chaffin vehicle.

'IX.

'That at the time of said collisions and immediately prior thereto, the defendant drove the Ford Station Wagon in a wilfully heedless, wreckless [sic], wanton, negligent manner, without regard to the safety of plaintiff's decedent in one or more of the following particulars.

'(a) In failing to heed the request and importuning of his wife, Flora Edith Chaffin, to refrain from driving the automobile under the then existing weather conditions, i. e., extremely low visibility, black ice and dense fog.

'(b) In failing to heed the warning of his wife as to the approach of a hazard.

'(c) Defendant negligently drove at a speed which was greater than would permit him to exercise proper control of said vehicle and to decrease speed and to stop as was necessary to avoid an accident and at a speed greater than was reasonable and prudent having due regard to the traffic, surface and width of said highway and all other conditions then existing, including limited visability due to fog and icy road conditions.

'(d) Defendant negligently failed to maintain a proper or any lookout for other vehicles.

'(e) Defendant negligently failed to observe or heed warning signals indicating an approaching hazard.

'(f) Defendant negligently failed to reduce the speed or stop the Ford Station Wagon so as to avoid said collision.

'(g) Defendant negligently failed to pass to the left of the Cadillac, there being sufficient room to do so in safety.'

The unqualified rule that an unemancipated minor cannot maintain an action for tort against a parent was first decided in this country in 1891 in Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682. The basis of the decision is that sound public policy 'designed to subserve the repose of families and the best interests of society' would forbid such action by the child against the parent. 19 A.L.R.2d 425.

For many years, the courts having cause to rule upon the question followed the nonliability rule established in Hewlett v. George, supra. Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468; Trudell v. Leatherby, 212 Cal. 678, 300 P. 7; Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753; Luster v. Luster, 299 Mass. 480, 13 N.E.2d 438; Mannion v. Mannion, 3 N.J.Misc. 68, 129 A. 431; Crosby v. Crosby, 230 App.Div. 651, 246 N.Y.S. 384; Canen v. Kraft, 41 Ohio App. 120, 180 N.E. 277; Briggs v. Philadelphia, 112 Pa.Super. 50, 170 A. 871; Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893, 107 Am.St.Rep. 805, 3 Ann.Cas. 1; Securo v. Securo, 110 W.Va. 1, 156 S.E. 750; Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113.

In Cowgill, Adm'r. v. Boock, Adm'r., 189 Or. 282, 301, 218 P.2d 445, 19 A.L.R.2d 405, Mr. Justice Belt in his opinion stated the rule of absolute nonliability 'should be modified to allow an unemancipated minor child to maintain an action for damages against his parent for a wilful or malicious personal tort.' In that case, the parent by exerting his parental authority forced his minor son to ride in an automobile driven by him while he was in an intoxicated condition, a ride that resulted in the death of both.

In determining the question of whether or not each plaintiff's complaint states or fails to state a cause of action within the modification of the rule, we must determine the boundaries within which the modified rule has application. That there would be difficulty in fashioning these boundaries was forecast in the dissenting opinions of Mr. Justice Lusk and Mr. Justice Brand.

It is recognized by both the plaintiffs and the defendant that ordinary negligence will not pierce the cloak of parental immunity, nor will gross negligence as defined by this court in Williamson v. McKenna, 223 Or. 366, 354 P.2d 56, for the court was careful to state in Cowgill, Adm'r. v. Boock, Adm'r, supra, 189 Or. 282, 293, 218 P.2d 445, 450, '[we] are concerned here with a case involving more than ordinary or gross negligence.' And also, in conclusion, on page 301, 218 P.2d on page 453 stated: 'Ordinary negligence or the doing of an unintentional wrong can not be the basis for such an action.'

The question then presented is,--What greater negligence of a parent than gross will grant a cause of action to a child against the parent?

Each parent, in the rearing of the child, is required under the law to provide maintenance and guidance for that child, and, so long as that parental duty is performed, the family unity is maintained and the parent is entitled to the custody of the child. This family unity the law recognizes and protects against invasion insofar as the parents' duties are concerned. It is only when a parent acts to cause a child to become or when a child becomes a 'dependent' or 'delinquent' child that the law recognizes a breach of parental duty that will deprive the parent of the custody of the child.

Necessarily then, a parent in performing his duties of providing support, discipline and education to his children must have wide discretion. Wealth or poverty, physical strength or weakness, wisdom or mental incapacity are not in themselves criteria for fixing guide lines by which the law judges the performance of parental duties.

Physical, mental or financial weakness may cause parents to provide what many a reasonable man would consider substandard maintenance, guidance, education and recreation for their children, and in many instances to provide a family home which is not reasonably safe as a place of abode. But it would be clearly wrong to permit the minor child to hold the parent liable for these unintended injuries. The wide scope of the family life in day to day living should not be subjected to the scrutiny of the courts for each failure to exercise the care and attention that is required of one individual toward another as a member of the public. To do so would place a far greater burden on parenthood than ought to be permitted, and weaken the reciprocal duties of both parent and child in the family unity of human conduct and relationship. Where a unity of family is maintained, the state is interested. It '* * * may balance the detriment resulting to the child by the abrigement of his rights against the benefits accruing directly to the child from the continuance of the parent-child relationship * * *.' Tucker v. Tucker, 395 P.2d 67 (Okl.1964).

In Cowgill, Adm'r. v. Boock, Adm'r....