Dean v. Smith

• Decision Date: 30 June 1965
• Citation: 211 A.2d 410,106 N.H. 314
• Parties: Juliette Small DEAN v. Harrison E. SMITH, Adm'r., et al.
• Court: New Hampshire Supreme Court

Page 410

211 A.2d 410

106 N.H. 314

Juliette Small DEAN v. Harrison E. SMITH, Adm'r., et al.

Supreme Court of New Hampshire.

Argued Feb. 2, 1965.

Decided June 30, 1965.

Hamblett, Kerrigan & Hamblett, Nashua (Joseph M. Kerrigan, Nashua, orally), for plaintiff.

Devine, Millimet, McDonough, Stahl & Branch, Manchester (David A. Brock, Manchester, orally), for defendant Harrison E. Smith as administrator and for intervenor Aetna Ins. Co.

LAMPRON, Justice.

The agreed statement of facts of the parties is as follows: 'Harrison E. Smith is administrator of the estate of Eugene E. Small, late of Nashua, who died intestate at Nashua on April 14, 1962, his death having been caused instantaneously by a collision on that date between a motor vehicle operated by the said Eugene E. Small and another vehicle operated by Emanuel H. Gutman of said Nashua. Brian Small, Barry Small and Brent Small were at the time of the accident unemancipated minor children of Eugene E. Small, riding as passengers in the Small vehicle, which was insured under an effective policy of motor vehicle liability insurance. The petitioner, Juliette Small Dean, is the widow of Eugene E. Small, and the mother of the minors * * * each of whom suffered personal injuries in the said accident. Litigation has been commenced by Juliette Small Dean against Harrison E. Smith, administrator, to enforce her own claim for expenses for medical, hospital and nursing care for each such minor child, and to enforce the personal injury claims of each such minor child'.

The defendants rely on the case of Worrall v. Moran, 101 N.H. 13, 131 A.2d 438, decided by this court in 1957. It held that tort actions against the administrator of their father' estate could not be maintained on behalf of two unemancipated minor children where one died and the other was injured while passengers in an automobile driven by their late father. The plaintiff asks this court to reconsider that decision and urges us 'to review the steady growth of the law limiting parental immunity since 1957, with particular emphasis on ending the immunity where the responsible parent is dead'. The defendants deny that there has been any substantial departure from 'the firmly established parental immunity rule'.

As was pointed out in Dunlap v. Dunlap, 84 N.H. 352, 354, 150 A. 905, 906, 71 A.L.R. 1055 'there never has been a common-law rule that a child could not sue its parent * * * The minor has the same right to redress for wrongs as any other individuals * * * The limitations which have been put upon that right have been deduced from prevalent ideas touching family life, and especially parental rights and duties'. This disability to sue or immunity from suit was created by the courts and became the basis for the rule that such an action is contrary to public policy. Overlock v. Ruedemann, 147 Conn. 649, 165 A.2d 335.

'The origin of this doctrine is ascribed to the case of Hewlett v. Ragsdale [or George], 68 Miss. 703 [9 So. 885, 13 L.R.A. 682] [1891], which gives as its basis (p. 711 [9 So. 885, at page 887, 13 L.R.A. 682],) the following: '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 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''. Levesque v. Levesque, 99 N.H. 147, 148, 106 A.2d 563, 564.

In the above case, decided in 1954, a divided court denied to an unemancipated child the right to sue his living parent for bodily injury caused by the negligent operation of a motor vehicle. This disability of an unemancipated child to sue a parent was extended, again by a divided court, to a suit against the estate of a dead parent. Worrall v. Moran, 101 N.H. 13, 131 A.2d 438 decided in April 30, 1957.

The Levesque decision recognized 'that there have been some departures under certain circumstances from the broad doctrine that an unemancipated minor cannot maintain a tort action against his parent', and 'especially if there is insurance against the specific risk'. 99 N.H. p. 148, 106 A.2d p. 564. However it was then the opinion of this court that if 'the almost general existence of liability insurance has so materially changed the circumstances which militated against such suits that a change in the public policy now prevailing in this state should be made * * * that is a matter for the legislature to determine rather than being within the province of this court'. Levesque v. Levesque, 99 N.H. 147, 148, 149, 106 A.2d 563, 564. It was pointed out in the Worrall case that bills introduced at the next session of the Legislature, in 1955, to permit an unemancipated minor to maintain a suit against a parent for negligence failed to be enacted. This result was interpreted as indicating a legislative intent against permitting suits by a child against a living parent or his representative, when deceased. Worrall v. Moran, 101 N.H. 13-15, 131 A.2d 438.

However, the immunity of parents from suit by their unemancipated children was not created by the Legislature. On the contrary the courts imposed on such a child this disability to...