Gibson v. Gibson

Decision Date25 January 1971
Citation92 Cal.Rptr. 288,479 P.2d 648,3 Cal.3d 914
CourtCalifornia Supreme Court
Parties, 479 P.2d 648 James A. GIBSON, a Minor, etc., Plaintiff and Appellant, v. Robert GIBSON, Defendant and Respondent. Sac. 7868.

Friedman & Collard, John M. Poswall and Morton L. Friedman, Sacramento, for plaintiff and appellant.

Rust, Hoffman & Mills and Ellis J. Horvitz, Los Angeles, for defendant and respondent.

SULLIVAN, Justice.

We are asked to reexamine our holding in Trudell v. Leatherby (1931) 212 Cal. 678, 300 P. 7 that an unemancipated minor child may not maintain an action against his parent for negligence. That decision, announced 40 years ago, was grounded on the policy that an action by a child against his parent would 'bring discord into the family and disrupt the peace and harmony which should exist between mmbers of the same household.' (Id. at p. 680, 300 P. 9.) If this rationale ever had any validity, it has none today. We have concluded that parental immunity has become a legal anachronism, riddled with exceptions and seriously undermined by recent decisions of this court. Lacking the support of authority and reason, the rule must fall.

James A. Gibson, plaintiff herein, is the minor son of defendant, Robert Gibson. James' complaint alleges in substance as follows. In January 1966 he was riding at night in a car which was being driven by his father and which was towing a jeep. His father negligently stopped the car on the highway and negligently instructed James to go out on the roadway to correct the position of the jeep's wheels. While following these directions, James was injured when another vehicle struck him.

Defendant filed a general demurrer on the theory that a minor child has no right of action against his parent for simple negligence. 1 Judgment of dismissal was entered on an order sustaining the demurrer without leave to amend. This appeal followed.

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 Relation (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.)

In 1891, however, the Mississippi Supreme Court laid the egg from which parental immunity was hatched. Citing no authorities, 2 in Hewlett v. George (1891) 68 Miss. 703, 9 So. 885, the Mississippi court barred a minor daughter's false imprisonment action against her mother who had wrongfully committed her to an insane asylum. The court declared that 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' would be disturbed by such an action and concluded that a child's only protection against parental abuse was to be found in the criminal law. (Id. at p. 711, 9 So. at p. 887.) This 'compelling' logic soon led the Washington Supreme Court to conclude that family peace and harmony would be irreparably destroyed if a 15-year-old girl were allowed to sue her father for rape. (Roller v. Roller (1905) 37 Wash. 242, 79 P. 788; see also McKelvey v. McKelvey (1903) 111 Tenn. 388, 77 S.W. 664, upholding a demurrer to a minor's complaint seeking damages for 'cruel and inhuman treatment' by her father and stepmother.'

Other states quickly adopted the rule of Hewlett and Roller, applying it to actions for negligence as well as for intentional torts, occasionally with more emotion than reason. 3 (See, e.g., Mesite v. Kirchenstein (1929) 109 Conn. 77, 145 A. 753; Sorrentino v. Sorrentino (1928) 248 N.Y. 626, 162 N.E. 551; Wick v. Wick (1927) 192 Wis. 260, 212 N.W. 787; Elias v. Collins (1926) 237 Mich. 175; Matarese v. Matarese (1925) 47 R.I. 131; Small v. Morrison, Supra, 185 N.C. 577, 118 S.E. 12; Taubert v. Taubert (1908) 103 Minn. 247, 114 N.W. 763.)

Trudell v. Leatherby, Supra, 212 Cal. 678, 300 P. 7, decided in 1931, involved an action by a minor plaintiff for damages for personal injuries sustained while a passenger in a car driven by his stepmother. After a discussion of barely one page on the issue of parental immunity, it was there concluded, 'That a minor child, unemancipated by its parents, cannot sustain an action against its parents seems to be well settled by the authorities.' (Id. at p. 680, 300 P. at p. 8.) In support were cited 'well considered' cases from eight states, and even a passage from Hewlett (as quoted in 20 R.C.L. 631). Trudell's only rationale was the threat of family discord.

No sooner had American courts, including our own, embraced the parental immunity doctrine than they began to fashion a number of qualifications and exceptions to it. 4 In Martinez v. Southern Pacific Co., Supra, 45 Cal.2d 244, 288 P.2d 868, we allowed an Emancipated minor to sue her parent for simple negligence; in Emery v. Emery (1955) 45 Cal.2d 421, 289 P.2d 218, we held that wilful or malicious torts were not within the scope of the immunity. Courts in other states compounded the doctrine's idiosyncrasies in decisions permitting tort actions by minors against the estate of a deceased parent (Davis v. Smith (3d Cir. 1958) 253 F.2d 286; Dean v. Smith (1965) 106 N.H. 314, 211 A.2d 410; Brennecke v. Kilpatrick (Mo.1960) 336 S.W.2d 68); against the parent in his business capacity (Signs v. Signs (1952) 156 Ohio St. 566, 103 N.E.2d 743; Borst v. Borst (1952) 41 Wash.2d 642, 251 P.2d 149; Lusk v. Lusk (1932) 113 W.Va. 17, 166 S.E. 538; Dunlap v. Dunlap, Supra, 84 N.H. 352, 150 A. 905); and against the parent's employer under Respondeat superior for the tort of the parent within the scope of his employment. 5 (Stapleton v. Stapleton (1952) 85 Ga.App. 728, 70 S.E.2d 156; O'Connor v. Benson Coal Co. (1938) 301 Mass. 145, 16 N.E.2d 636; Mi-Lady Cleaners v. McDaniel (1938) 235 Ala. 469, 179 So. 908; Chase v. New Haven Waste Material Corporation (1930) 111 Conn. 377, 150 A. 107.) Although purporting to distinguish the situation of a negligence action directly against a living parent, such cases probably rested as much on growing judicial distaste for a rule of law which in one sweep disqualified an entire class of injured minors.

Apart from this general trend to restrict parental immunity, however, we believe that a trilogy of recent California cases in the area of intra-family tort immunity has weakened, if not eroded, the doctrinal underpinnings of the rule. In Emery v. Emery, Supra, 45 Cal.2d 421, 289 P.2d 218, we recognized the right of an injured minor to sue her father for wilful or malicious tort and to sue her brother for negligence. In Self v. Self (1962) 58 Cal.2d 683, 26 Cal.Rptr. 97, 376 P.2d 65 and Klein v. Klein (1962) 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70, we abrogated Interspousal immunity for intentional and negligent torts. 6 We think that the reasoning of those decisions has totally destroyed two of the three grounds traditionally advanced in support of parental immunity: (1) disruption of family harmony and (2) fraud or collusion between family 'adversaries.' The third ground, the threat to parental authority and discipline, although of legitimate concern, cannot sustain a total bar to parent-child negligence suits. We shall examine these arguments one by one.

The danger to family harmony was the only rationale for immunity mentioned in Trudell. In Self, however, we termed this argument 'illogical and unsound.' Observing that spouses commonly sue each other over property matters, we concluded that 'It would not appear that such assumed conjugal harmony is any more endangered by tort actions than by property actions * * *.' (58 Cal.2d 683, 690, 26 Cal.Rptr. 97, 101, 376 P.2d 65, 67.) 7 Indeed, as we shall discuss, Infra, the risk of family discord is much less in negligence actions, where an adverse judgment will normally be satisfied by the defendant family member's insurance carrier, than in property actions, where it will generally be paid out of the defendant's pocket. Since the law has long allowed a child to sue his parent over property matters (King v. Sells (1938) 193 Wash. 294, 75 P.2d 130; Lamb v. Lamb (1895) 146 N.Y. 317, 41 N.E. 26), the rationale of Self if equally applicable to parent-child tort suits.

We found the family argument similarly unpersuasive in Emery when advanced to bar a suit between a minor sister and her minor brother. We said: 'Exceptions to the general principle of liability, Civ.Code, § 3523 ('For every wrong there is a remedy.') * * * are not to be lightly created, and we decline to create such an exception on the basis of the speculative assumption that to do so would preserve family harmony. An uncompensated tort is no more apt to promote or preserve peace in the family than is an action between minor brother and sister to recover damages for that tort.' (45 Cal.2d 421, 430--431, 289 P.2d 218, 224.)

Arguments based on the fear of fraudulent actions are also adequately answered by reference to Emery, Self, and Klein. 8 While some danger of collusion cannot be denied, the peril is no...

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