Felderhoff v. Felderhoff

• Decision Date: 08 December 1971
• Docket Number: No. B--2969,B--2969
• Citation: 473 S.W.2d 928
• Parties: Thomas H. FELDERHOFF, Jr., Petitioner, v. August FELDERHOFF et al., Respondents.
• Court: Texas Supreme Court

Page 928

473 S.W.2d 928

Thomas H. FELDERHOFF, Jr., Petitioner, v. August FELDERHOFF et al., Respondents.

No. B--2969.

Supreme Court of Texas.

Dec. 8, 1971.

Stark & Barnhart, Gainesville, Woodruff, Kendall & Smith, David M. Kendall, Jr., Dallas, for petitioner.

Brown, Day & Crowley, George A. Crowley, Fort Worth, for respondents.

DANIEL, Justice.

This is a personal injury suit filed on behalf of Thomas H. Felderhoff, Jr. for damages arising out of injuries sustained while employed by Felderhoff Brothers, a farming partnership of which his father was a member. At the time of the accident Felderhoff, Jr. was a fourteen-year-old unemancipated minor, and the accident was alleged to have been proximately caused by the negligent acts of his father in the course and furtherance of the partnership business. Felderhoff, Jr., hereinafter referred to as plaintiff, did not sue his father, naming only Felderhoff Brothers and the other two partners as defendants. The trial court granted summary judgment for the defendants on the grounds that a parent is immune from a suit by his unemancipated child for personal injuries based upon ordinary negligence and that such immunity extends to the partnership of which his father is a member. The Court of Civil Appeals affirmed. 470 S.W.2d 301. We reverse and remand for a trial on the merits.

Felderhoff Brothers, a partnership comprised of August Felderhoff, Norbert Felderhoff and Thomas H. Felderhoff, Sr., has been engaged in a substantial farming operation since 1946. At the time of the accident in question, it was farming and ranching approximately 5000 acres, with wheat, oats, barley and hay as the principal crops. In the name of the partnership, a bank account was maintained; farming equipment was purchased and held; employees, including the plaintiff, were compensated; social security taxes were paid; and income tax returns were filed. In the reply filed herein by counsel for defendants it is stipulated that the partnership carried liability insurance which covered its employees. As an employee of the partnership, plaintiff was paid $1.25 an hour to operate farm machinery and perform other assigned duties. The partnership made deductions from plaintiff's salary for withholding and social security taxes the same as from the salaries of other employees. In all respects, plaintiff enjoyed the same status as other employees of the partnership. The only difference urged by defendants as a bar to plaintiff's cause of action is that he was the unemancipated minor son of one of the partners, and under his supervision at the time of the accident. For the purposes of this opinion, we assume that the father would be jointly and severally liable with his co-partners for any debts or obligations of the partnership resulting from a judgment in this case. Secs. 13 and 15, Texas Uniform Partnership Act, Article 6132b, Vernon's Ann.Tex.St.

On August 24, 1967, after plaintiff and his father had completed combining a field of milo, they moved the large Massey-Ferguson combine to a place for winter storage and were in the process of cleaning up the machine. The engine was left running, but the attached grain auger operated from the cab of the machine was disengaged and motionless when plaintiff began scraping out the excess grain and chaf with his right hand. While plaintiff's hand was down in the bin which housed the auger, it is alleged that his father lost his footing in the cab and struck the lever which threw the auger in gear, thus trapping and holding plaintiff's right arm in the auger for more than two hours. He alleged that bones in his arm were broken and muscles, nerves, ligaments and blood vessels within the arm were cut, torn and mutilated, resulting in severe pain, anguish and permanent damage to his arm. Various acts of ordinary negligence on the part of the father, while acting for the partnership, were alleged as proximate causes of the injuries.

The Court of Civil Appeals, with some indication of reluctance, followed the general rule stated in Aboussie v. Aboussie, 270 S.W.2d 636 (Tex.Civ.App., 1954, error refused) that an unemancipated minor child may not sue his parent for damages based on ordinary negligence and that this immunity applies also to an action against his parent's co-partners. The general rule of parental immunity has been previously stated and applied, directly or indirectly, in four reported Texas cases, but none of these involved a situation where the child's injury and the parent's alleged negligence arose from an employer-employee or master and servant relationship. ¹ Thus, this is a case of first impression in this Court on the question of whether parental immunity should be extended to acts arising outside of the normal family relationship of parent and child and occurring in the parent's business activity in which the child is engaged as an employee. Once a child has become an employee in the business vocation of his parent or his parent's business partnership, is he to be denied the rights to reparation for negligently inflicted bodily injuries vouchsafed to all of the other employees simply because of the parental relationship? We think not. The general rule of parental immunity, and the reasons therefor, are not applicable to the facts and circumstances presented by the pleadings and summary judgment proof in this case, because they are referable to a business and vocational relationship rather than to filial or parental duties or family responsibilities.

In arriving at this decision, the origin, reasons and purposes of the parental immunity rule, and its many exceptions, have been carefully considered. At the outset it should be noted that suits between children and parents for protection of their property rights, even for negligent damage to their property, have long been permitted, and Prosser says 'there is no good reason to believe that the English law would not permit actions for personal torts as well, subject always to the parent's privilege to enforce reasonable discipline * * *' Prosser, Law of Torts, 865 (4th ed. 1971). It was not until 1891 that American courts began to prohibit suits against parents by minor children for injuries to their persons or bodies. In that year the Supreme Court of Mississippi held that a minor daughter could not recover damages from her mother for wrongful and malicious imprisonment in a hospital for the insane. ² Without citation of authority, the court based its decision on what it deemed to be a necessary public policy, reasoning as follows:

'(S)o 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 of the families composing 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. 887.

At the turn of the century, the rule was followed by the Supreme Court of Tennessee in denying a child damages for cruel and inhuman punishment inflicted by a stepmother with the father's consent ³ and by the Supreme Court of Washington in denying a daughter damages from her father after he had raped her. ⁴ These primitive applications of the rule to wilful and intentional parental torts have since been abandoned. The prevailing rule today is that in the commission of wilful, malicious and intentional wrongs against the child the parent has abandoned or abdicated his parental responsibilities and subjected himself to liability. Aboussie v. Aboussie,supra, 270 S.W.2d at 639; Cowgill v. Boock, 189 Or. 282, 218 P.2d 445 (1950). ⁵ It may be safely said that the general rule is now restricted to ordinary negligence and unintentional wrongs, and this is only one of several restrictions, exceptions and limitations which have been adopted in more recent decisions. The highest courts in many states have reexamined the rule and declined to apply it in cases where the reasons for the rule no longer exist. The Supreme Courts of California, New Hampshire and New York have entirely abrogated the rule. ⁶ The Supreme Courts of Minnesota and Wisconsin abolished it in all instances of negligence except where the alleged act involves (1) an exercise of parental authority over the child, or (2) an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care; and Kentucky follows substantially the same limitation of the rule. ⁷ The Supreme Courts of Alaska, Arizona, New Jersey and Virginia, hold that the parental immunity rule does not apply to personal injury suits arising out of automobile accidents. ⁸ Many other states have adopted one or more of the exceptions limiting the application of the rule, and the trend is to restrict the rule to activities which are clearly referable to the discharge of parental duties. ⁹

The wide prevalence of liability insurance, and the protection which it affords parent, child and family, are noted in many of the foregoing cases. Although all recognize that the existence of insurance will not create a cause of action if none otherwise exists, many of the courts comment that insurance is so common today that it should not be ignored in testing the current validity of reasons for the parental immunity rule, especially with respect to negligent acts of parents growing out of automobile accidents and business activities in which the nominal defendant parent usually will suffer no loss. ¹⁰ Plaintiff offers this argument as a reason why the parental immunity rule should be completely abrogated. On the other hand, defendants contend, and some courts have held, that the presence of liability insurance and the possibility which it affords for fraud...