Eschen v. Roney, 47452

• Decision Date: 22 September 1972
• Docket Number: No. 47452,3,2,Nos. 1,47452,s. 1
• Citation: 127 Ga.App. 719,194 S.E.2d 589
• Parties: Lois W. ESCHEN v. June K. RONEY et al
• Court: Georgia Court of Appeals

Page 589

194 S.E.2d 589

127 Ga.App. 719

Lois W. ESCHEN v. June K. RONEY et al.

No. 47452.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 22, 1972.

Rehearing Denied Dec. 6, 1972.

Syllabus by the Court

As one cannot do indirectly what the law does not allow to be done directly, a third party action cannot be maintained by a defendant when sued by a minor son as against his mother on account of negligent acts of another child imputed to her by means of the operation of a family purpose vehicle.

Anderson, Walker & Reichert, Albert P. Reichert, Jr., Macon, for appellant.

Harris, Russell & Watkins, Joseph H. Davis, Macon, for appellees.

CLARK, Judge.

Does the doctrine of 'parental immunity' in tort cases apply to third party actions? That question is presented in this case which had its inception when a minor plaintiff, John W. Roney, received personal injuries while riding as a passenger in a family car owned by his mother, Mrs. June K. Roney, and being driven by his sister, which had a collision with an automobile driven by Lois W. Eschen. The instant suit was filed by the minor through his mother as next friend, to which defendant filed an answer denying negligence. She also instituted a third party action under the family car doctrine 'for judgment over against third party defendant, Mrs. June K. Roney, for contribution for all sums which may be adjudged against her.' As The trial court is sustained upon the authority of SHELL V. WATTS, 125 GA.APP. 542, 188 S.E.2D 269,¹ a case quatuor pedibus currit to that sub judice, differing only as to consanguineous connection in that it involved inter-spousal immunity under a third party complaint. In headnote 6 Judge Randall Evans wrote: 'It has been many times held that the public policy of this state prevents suits between members of a family, such as an unemancipated child against a parent, or wife against a husband, as such suits tend to disrupt the family tranquillity. Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708; Wright v. Wright, 85 Ga.App. 721, 70 S.E.2d 152; Stapleton v. Stapleton, 85 Ga.App. 728, 729, 70 S.E.2d 156. Further, it is a general rule that one cannot do indirectly that which the law does not allow done directly. To allow the defendant Shell to have judgment against Watts for all sums adjudged against him by Watts' wife would be trantamount to allowing Watts' wife to sue her husband in tort. The court properly sustained the motion to dismiss the third party complaint against Watts because there could be no contribution because of marital immunity. See Heyman v. Heyman, 19 Ga.App. 634(1), 92 S.E. 25; Chastain v. Chastain, 50 Ga.App. 241(3), 177 S.E. 828.' See also So. Ry. Co. v. Brewer, 122 Ga.App. 292, 176 S.E.2d 665.

such third-party defendant, Mrs. Roney made a motion to dismiss based upon her son being an unemancipated minor who could not sue his mother for negligence. This appeal is from a judgment sustaining that motion to dismiss.

Scholarly counsel for appellant argues that analysis of the reasons given by this court in Bulloch v. Bulloch, supra, for establishment of the 'parental immunity' rule in Georgia as a matter of public policy shows it should not apply in the instant situation. He supplements this by further legal ratiocination supported by those cases constituting exceptions to such doctrine. These are: Farrar v. Farrar, 41 Ga.App. 120, 152 S.E. 278, which dealt with an emancipated child after reaching majority; Wright v. Wright, 85 Ga.App. 721, 70 S.E.2d 152, where the parent forfeited its parental authority by a wilful tort, and Stapleton v. Stapleton, 85 Ga.App. 728, 70 S.E.2d 156, which permitted the child to sue the parent's employer. These cases do not apply here.

Counsel also calls our attention to two cases wherein the United States Court of Appeals for the Fifth Circuit in compliance with the Erie doctrine (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188) sought to apply Georgia law on the right of a minor to maintain a negligence action against a deceased parent's estate. In the first of these cases, Union Bank & Trust Co. v. First National Bank, 5 Cir., 362 F.2d 311, the action was permitted against a mother's estate. The court reasoned that with both parents being killed in the auto accident which brought about the suit that there could be no disruption of family unity, one of the motivations for creation of parental immunity, and that the existence of liability insurance removed the possibility of discriminatory impact upon the family finances for the benefit of one child, which had been another reason mentioned in Bulloch v. Bulloch. Then by analogy to Cox v. DeJarnette, 104 Ga.App. 664, 123 S.E.2d 16, in which it was held that charitable immunity did not exist for tort liability to the extent of coverage afforded by liability insurance, it was ruled that the estate of the deceased mother was not immune to the extent of the coverage. It should be noted the court here recognized that Georgia law did not permit an unemancipated minor to recover against is parents for a tort caused by ordinary negligence. When this matter of liability insurance was considered in Harrell v. Gardner, 115 Ga.App. 171, 154 S.E.2d 265, our court did not accept The Federal appellate court may have been influenced by a nation-wide trend towards abolition of the parental immunity doctrine ³ but the Court of Appeals of Georgia does not indulge in 'judicial legislation.' For example, Stovall & Co. v. Tate, 124 Ga.App. 605, 184 S.E.2d 834, declined adoption of the strict liability doctrine on manufactured products as being a matter for the legislature. Henry Grady Hotel Co. v. Sturgis, 70 Ga.App. 379, 28 S.E.2d 329, Best v. State, 109 Ga.App. 553, 136 S.E.2d 496 and Hyde v. Atlantic Steel Co., 112 Ga.App. 136, 144 S.E.2d 232, are further illustrative of our court recognizing that we are not to encroach upon the legislative domain. ⁴ Where there is an established legal doctrine such as this court enunciated in Bulloch v. Bulloch, supra, 'under the public policy of this State, as expressed in the public laws' and it has been consistently followed for thirty years, we regard any change as being a matter for the legislature.

the suggestion concerning the existence of liability insurance, but quoted from the Bulloch case that liability insurance would be irrelevant. In the light of this Georgia ruling, Barnwell v. Cordle, 5 Cir., 438 F.2d 236, undertook 'to review the development of the Georgia doctrine of parental immunity and the foundations which support it.' P. 238. In doing so, the Federal court dealt with those exceptions which are already mentioned in this opinion, and concluded there was a cause of action for the benefit of a permanent quadriplegic ² minor 'which he was prevented from converting into a judgment for howsoever long his father lived because of the doctrine of parental immunity.' P. 241.

Judgment affirmed.

EBERHARDT, P.J., and PANNELL, QUILLIAN and EVANS, JJ., concur.

HALL, P.J., concurs specially.

BELL, C.J., and DEEN and STOLZ, JJ., dissent.

ON MOTION FOR REHEARING

CLARK, Judge.

In his motion for rehearing appellant's able attorney ardently argues his abhorrence to our adherence to stare decisis. He had been successful in persuading our colleqgue Judge Branswell Deen to withdraw his original concurrence and file a dissent, which under our practice converts this case into a full court decision.

We recognize some jurisdictions have no hesitation in legislation by litigation. Those courts have regarded hitherto accepted legal doctrines such as intra-familial immunity as being anachronisms which should be discarded.

Such departure from the wisdom of the past has not been universal. An example dealing with the parent-child immunity doctrine that is most analogous to our instant case is the decision rendered June 1972 by the Supreme Court of North Carolina in Skinner, Admr. v. Whitley, Admr., 281 N.C. 476, 189 S.E.2d 230. Our sister jurisdiction declined to abandon the time-honored rule of parental immunity in language and reasoning stated so well that we repeat much of what is said therein. It is there recognized the great majority of American jurisdictions adhere to the parental immunity doctrine because 'this rule implements a public policy protecting family unity, domestic serenity, and parental discipline.' P. 478, 189 S.E.2d p. 231. The court points out at p. 480, 189 S.E.2d at pp. 232, 233 that 'An examination of cases applying the parental immunity doctrine reveals five policy reasons primarily relied on to support it: (1) disturbance of domestic tranquility, (2) danger of fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with parental care, discipline and control. However, domestic tranquility and the discipline and control of the family's children are the policy reasons most frequently offered.'

The North Carolina court's research developed the same conclusion reached in our study, that no state has totally abrogated parental immunity even though a minority of the states have modified the doctrine. Even those states generally express such modifications as being exceptions to the immunity rule. After pointing out that such modifications would create more problems and inequities than it cures the North Carolina court uses this graphic language: 'piecemeal abrogation of established law by judicial decree is, like a partial amputation, ordinarily unwise and usually unsuccessful.' P. 484, 189 S.E.2d p. 235.

To this court the rule of state decisis is salutary because it preserves the harmony and stability of the law and requires that 'in determining a case the court is not concerned with what the law ought to be, but its sole function is to declare what the law, (as) applicable to the facts of the case, is.' 21 C.J.S. Courts § 187, p. 304....