Falco v. Pados

• Decision Date: 12 October 1971
• Citation: 444 Pa. 372,282 A.2d 351
• Parties: Kristine FALCO, a Minor by Edward Falco, Her Parent and Natural Guardian, and Edward Falco, Plaintiffs, v. Stephen W. PADOS, Defendant, Edith Falco, Additional Defendant, and Aetna Insurance Company, Garnishee, Appellant. Appeal of AETNA INSURANCE COMPANY, Garnishee.
• Court: Pennsylvania Supreme Court

Page 351

282 A.2d 351

444 Pa. 372

Kristine FALCO, a Minor by Edward Falco, Her Parent and Natural Guardian, and Edward Falco, Plaintiffs, v. Stephen W. PADOS, Defendant, Edith Falco, Additional Defendant, and Aetna Insurance Company, Garnishee, Appellant.

Appeal of AETNA INSURANCE COMPANY, Garnishee.

Supreme Court of Pennsylvania.

Oct. 12, 1971.

E. Jerome Brose, Brose, Poswistilo & LaBarr, Frank S. Poswistilo, Easton, for appellant

Norman Seidel, Gus Milides, Easton, for appellees.

Before JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION.

EAGEN, Justice.

This is an appeal from the judgment entered below in an attachment execution proceeding. The facts stipulated by the parties are as follows:

Kristine Falco, an unemancipated minor, was injured while she was a passenger in an automobile operated by her mother, Edith Falco, when it became involved in a collision with an automobile operated by Stephen Pados. ¹

The minor, through her father, Edward Falco, as guardian, and the father in his own right instituted an action for damages solely against Pados. The latter joined Edith Falco, as an additional defendant in the action, alleging that she was alone liable for the minor's injuries, or alternately, jointly liable with Pados therefor.

A jury trial resulted in a verdict in favor of the plaintiffs and against the original and the additional defendant in the total sum of $28,050.80. ² Judgments were subsequently entered on the verdict and Pados' insurance carrier paid the plaintiffs $10,000, the maximum sum due under its policy. No further recovery was possible from Pados since he was judgment proof.

The plaintiffs then instituted the instant attachment execution proceeding against the Aetna Insurance Company (Aetna), the additional defendant's liability insurance carrier, as garnishee. Interrogatories were filed to which Aetna filed an answer raising the defense of intrafamily immunity. The parties then stipulated the facts of record and submitted the issue to the court for final decision as if each side to the litigation had entered a motion for summary judgment. Subsequently, the court entered a judgment in favor of The minor plaintiff against Aetna for $18,050. Aetna then filed this appeal.

The case presents the question of interspousal immunity, as well as parental immunity, although the court below in entering judgment failed to give the doctrines separate consideration. In our view, the claim of the minor plaintiff must be considered apart from that of her father, and this opinion will proceed accordingly.

CLAIM OF KRISTINE FALCO

The question in this instance is whether under the facts of the case, the minor plaintiff, Kristine Falco, may recover the full amount of her verdict, even though to do so requires a garnishment of her mother's liability insurance policy.

Undeniably, it is currently the law in Pennsylvania that an unemancipated minor child may not maintain an action of trespass against either parent to recover damages for personal injuries resulting from that parent's negligence. Parks v. Parks, 390 Pa. 287, 135 A.2d 65 (1957). Nor may In ruling that the minor plaintiff could garnish the mother's liability insurance policy, the court below reasoned that the instant case is distinguishable from an intrafamily dispute, since here the minor plaintiff instituted suit only against Pados, who, in turn, joined the mother as an additional defendant. Hence, the parent's presence in the litigation resulted from Pados' action and not that of her child. Secondly, the minor plaintiff did not testify against her mother, nor did the latter admit negligence, thereby making her insurer liable. Only Pados testified against the additional defendant, and the imposition of liability by the jury was not the product of dispute, contention or any other disruptive circumstances within the family circle.

a parent maintain such an action against his or her unemancipated child: Silverstein v. Kastner, 342 Pa. 207, 20 A.2d 205 (1941); Duffy v. Duffy, 117 Pa.Super. 500, 178 A. 165 (1935). The rule has been one of public policy and the basic reasons therefor are said to be twofold: first, allowance of such an action would result in 'discord in the home, disorganization of the family relation and the severing of the natural ties of affection,' all of which the 'state desires to prevent rather than promote.' Duffy v. Duffy, supra, at 502, 178 A. at 166; secondly, to permit such suits would be conducive to and provide encouragement for collusion, perjury and fraud.

The foregoing position is appealing, but its adoption would lead to future pitfalls. However, further discussion will serve no purpose, because after thoughtful consideration, we have concluded that the doctrine of parental immunity has no rational purpose today, and henceforth will not be recognized in Pennsylvania.

'The doctrine of parental immunity for personal torts is only 80 years old, an invention of the American courts. Although the oft-compared rule of interspousal immunity reached back to the early common law, English law books record no case involving a personal tort suit between parent and child. (Dunlap v. Dunlap (1930) 84 N.H. 352, 356, 150 A. 905; Prosser, Torts (3d ed. 1964) § 116, p. 886; Annot. (1951) 19 A.L.R.2d 423, 425; see McCurdy, Torts Between Persons in Domestic Relations, (1930) 43 Harv.L.Rev. 1030, 1059--1060.) Since children have long been allowed to sue their parents in matters involving property, however, some scholars have concluded that 'there is no good reason to think that the English law would not permit actions for personal torts as well * * *.' (Prosser, op. cit. supra, § 116, p. 886 (citing Reeve, Domestic Relations (1816) p. 287; Eversley, Domestic Relations (3d ed. 1906) p. 578); Dunlap v. dunlap, supra, 84 N.H. 352, 356, 150 A. 905.) Modern decisions in Scotland and Canada have recognized such personal injury suits. (Young v. Rankin (Scotland 1934) Sess.Cas. 499; Deziel v. Deziel (Canada 1953) 1 D.L.R. 651, 653--654; see Prosser, op. cit. supra, § 116, p. 886.)' Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648, 649 (1971).

American precedent began in 1891 with the case of Hewlett v. George, 68 Miss. 703, 9 So. 885, where the family immunity doctrine was first announced. There the Mississippi court held that a minor child could not maintain a false imprisonment action against her mother for maliciously confining her in an insane asylum. In reaching this result the court cited no authority, basing its decision on the rationale that, '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.' 9 So. 885, 887 (1891).

The Hewlett decision was then followed by the Tennessee Supreme Court in McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), and by the Washington court in Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). In the Tennessee case the court denied a minor the right to sue her It is firmly established that the emancipated child may sue the parent, and the parent may sue the emancipated child for negligent wrongs, ⁵ and that the unemancipated child may sue his parents for his property. ^{6 6} There are authorities which have permitted an unemancipated minor to maintain an action for personal injuries wilfully or intentionally inflicted; ⁷ authorities which have allowed suits where the injuries were caused by unintentional but wilful, reckless, or grossly negligent conduct; ⁸ and authorities which have held that the parental immunity rule does not prohibit a negligence action by an unemancipated minor against the estate of his deceased parent. Kaczorowski v. Kalkosinski, Admr.,321 Pa. 438, 184 A. 663 (1936); Vidmar v. Sigmund, 192 Pa.Super. 355, 162 A.2d 15 (1960); Davis v. Smith, 253 F.2d 286 (3d Cir. 1958). And in Minkin v. Minkin, 336 Pa. 49, 7 A.2d 461 (1939), this Court allowed an eight-year-old child to bring suit against his mother to recover damages for the death of his father alleged to have resulted from the mother's negligent operation of an automobile. The majority of the Court were of the opinion that the Death Statutes, which allowed a minor to share in compensation payable by one whose negligence caused his parent's death, indicated a legislative intent in this type of action to displace the public policy which disallowed generally actions by minors.

                father and stepmother for cruel and inhuman treatment.  In the Washington case the court reversed the verdict which a child obtained against her father who had criminally ravished her.  The Hewlett, McKelvey and Roller decisions 'constitute the great trilogy upon which the American rule of parent-child tort immunity is based.'  3  Although other states quickly took the same position, 4 the tendency has been to whittle away the rule by statute and by the process of interpretation, distinction and exception, until what we have left today is a conglomerate of paradoxical and irreconcilable judicial decisions
                

Not only has there been a steady erosion of the rule of intrafamily immunity for non-wilful torts, but twelve jurisdictions have abolished the doctrine altogether, following the lead of Wisconsin which was the first to do so in 1963 in Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963). Other states which now allow children to sue their parents in tort include Alaska (Hebel v. Hebel, 435 P.2d 8 (1967)); Arizona (Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970)); California (Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Reptr. 288, 479 P.2d 648 (1971)); Hawaii (Tamashiro v. DeGama, 450 P.2d 998 (1969)); Kentucky (Rigdon v. Rigdon, 465 S.W.2d 921 (1970)); Illinois (Schenk v. Schenk, 100 Ill.App.2d 199, 241 N.E.2d 12 (1968)); New Jersey (France v. A.P.A. Transport Corp., 56...