Dunlap v. Dunlap

Decision Date02 June 1930
CourtNew Hampshire Supreme Court

ALLEN, J., dissenting.

Exceptions from Superior Court, Belknap County; Sawyer, Judge.

Action by Lloyd W. Dunlap against Walter E. Dunlap. Defendant's motion for nonsuit was granted, and both parties bring exceptions.

Plaintiff's exception sustained. Defendant's exception overruled.

Case for negligence. Upon the introduction of certain evidence, supplemented by offers of proof, the court (Sawyer, C. J.) granted the defendant's motion for a nonsuit, upon the ground that "a minor child cannot sue his parent for tort," and the plaintiff excepted.

The evidence and offers of proof would warrant the finding of the following facts: The plaintiff is the defendant's son, now of age, but a minor when injured. The defendant is a contractor and builder; and the plaintiff was injured through the collapse of a staging, while working for the defendant and under circumstances showing a master's liability for injury to a servant. The plaintiff was then 16 years old. He lived at home and attended high school. He and his father agreed that he should work for the defendant during the summer vacation at the same wage paid other workmen, less a deduction of the worth of his board at home.

The defendant carried employer's liability insurance. By the terms of the policy he furnished to the insurer, from time to time, a list of his employees and the wages paid to each. The premiums paid were a certain percentage on the pay roll. The insurer's agent knew that the plaintiff was the defendant's minor son, and that the premiums received were computed in part upon the son's wages. There were similar arrangements, both as to employment and insurance, in the previous summer. Other facts appear in the opinion.

Fortunat E. Normandin and Owen & Veazey, all of Laconia, for plaintiff.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for defendant.


I. The case is presented here in part upon evidence produced at the trial and in part upon offers of proof. At the close of the testimony, the motion for a nonsuit was made and the plaintiff was permitted to make the first offer of additional proof. The motion was then granted subject to exception. About a week later, the plaintiff was given leave to make a further offer of proof. The defendant excepted, and now claims that the last offer of proof cannot be considered here. The objection is not well taken. The ease was still within the control of the superior court, and there was discretionary power to reopen it to receive the offer of added proof. Wells v. Burbank, 17 N. H. 393, 412,

II. Authority for the denial of liability is sought to be found in the law forbidding suits between husband and wife. It is said that the uniform holding that legislative action removing common-law disabilities is required there shows that it is also required here. The fallacy in the argument lies in the failure to properly differentiate the two relations, as they existed at common law. By that law there was a legal unity of husband and wife. "By the common law, the married woman's contracts were absolutely void,—not merely voidable, like those of infants and lunatics; and this, not because of the theory that, like an infant or a lunatic, she required the protection of the law, * * * but because of the theory of the utter absorption of the existence of the wife in that of the husband; or the other theory, of her subjection and slavery." Harris v. Webster, 58 N. H. 481, 482.

It is not necessary to go further than to contrast this doctrine of "a legal unit," forbidding all contracts or suits between husband and wife (Clough v. Russell, 55 N. H. 279), with the rule that a minor may make a contract with his father and sue thereon (Hall v. Hall, 44 N. H. 293), to demonstrate the fundamental difference in the legal theories as to the nature of the respective relations. "There is no conception of unity of legal identity of parent and minor child." 43 Harv. Law Review, 1057.

There never has been a common-law rule that a child could not sue its parent. It is a misapprehension of the situation to start with that idea and to treat the suits which have been allowed as exceptions to a general rule. The minor has the same right to redress for wrongs as any other individual. In the investigation of the subject, the starting point is a general right to demand reparation. The limitations which have been put upon that right have been deduced from prevalent ideas touching family life, and especially parental rights and duties. And here, as one distinguished writer has put it, we "are in the realm of belief and emotion." 43 Harv. Law Review, 1076. Opposing views have not infrequently been advocated with rhetoric rather than by reason. Out of it all there emerges one substantial and reasonable ground for denying a recovery, and one only. The parental authority should be so far supreme that whatever would unduly impair it should be foregone by the child for his ultimate good.

In so far as the idea of maintenance of the family peace is concerned, it has been determined for this jurisdiction that it is not always a ground for refusing recovery for torts. After our statute had removed the fiction of legal unity of husband and wife, it was held that she might sue him for an assault. Gilman v. Gilman, 78 N. H. 4, 95 A. 657, L. R. A. 1916B, 907. It is manifest that this action would be as disruptive of family peace as one between parent and child. For this reason the right of the emancipated wife to maintain it is denied in many jurisdictions; while in a few the inconsistent conclusions have been reached that she could sue, but the child could not. 43 Harv. Law Rev. 1075.

It may be said that the conclusion reached in Gilman v. Gilman, supra, was put upon the ground that the language of the statute plainly indicated a legislative intent to declare that the action could be maintained. But this does not help the defendant. If a mandate to disregard the argument as to family peace is found in a legislative enactment rather than in a judicial view of the common law, it is still more important. Judicial decisions may be overruled, but statutes must be obeyed.

"By 'public policy', is intended the policy of the state as evidenced by its laws." Spead v. Tomlinson, 73 N. H. 46, 58, 59 A. 376, 379, 68 L. R. A. 432. The Legislature has enacted a statute which is a plain repudiation of the idea that it is the policy of the state that maintenance of tort suits within the family circle should be forbidden. Of course this does not indicate any view as to reasons based upon other particular relations. It expresses no opinion as to maintenance of discipline over children. But, as to reasons equally applicable to parent and child and husband and wife, it is a declaration of policy which should not be ignored. Even if the family peace argument against tort actions by the child is not to be considered to have been wholly repudiated by the statute plus its interpretation in Gilman v. Gilman, supra, the law there announced is at least of significance upon the issue of the policy to be followed in similar situations. The argument being that there is a state policy to maintain domestic peace by denying tort actions within the family, anything which tends to prove the absence of such general policy must be considered in solving the issue of the existence of the policy, when it is invoked in a particular instance.

But if it be conceded that the family peace idea is still available here as a reason for denying liability, so far as it ever had any force, it remains to inquire as to the source and present scope of the alleged immunity granted to the parent, for the enforcement of discipline and the preservation of family accord.

There is much to be said in support of the contention that the whole theory of nonliability effected through a rule of incapacity to sue is unsound. Cases of mere nonfeasance as to the performance of moral duties of support, etc., are not in point here. There is no liability because there has been no breach of a legal duty. So too suits for excessive punishment, not maliciously inflicted, are to be distinguished because of the qualified privilege attached to the performance of the duty. But as to true torts, breaches of a legal duty owed to the child, the English law certainly affords no precedent for denying liability.

The great weight of recent American authority is, however, against the right to sue, and for the reasons outlined above. In view of this, we have not in the present case gone further in opposition thereto than was necessary to dispose of the litigation in hand; that is, conceding for the purposes of the argument that there may be some merit in the position taken, it appears to us that it has limits which even the believers therein should recognize, and that these limitations place the present plaintiff outside the class incapacitated to sue. We take up the consideration of the subject from this viewpoint.

III. It is said that the law establishing individual rights as between those constituting the family group has been of slow development. This is true, but it does not follow therefrom that such rights were not capable of vindication, had they been asserted. Thus, when cases in hand were presented, the English courts held that a child's property rights would be upheld, as against his father. Roberts v. Roberts, Hadres, 96; Duke of Beaufort v. Berty, 1 P. Wms. 705; Morgan v. Morgan, 1 Atk. 489. It is observed by way of disparagement that these were chiefly equity cases. But one is not usually mollified by the fact that he is proceeded against in chancery, rather than on the law side of the docket. If the point is that the justices of those courts were administering a doctrine peculiar to equity, the answer is that the cases have always been approved whenever occasion has arisen. Thomas v....

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