Hankins v. Derby, 55438

• Decision Date: 17 October 1973
• Docket Number: No. 55438,55438
• Citation: 211 N.W.2d 581
• Parties: Lanny J. HANKINS, by Albert Hankins, his father and next friend, Appellant, v. Leo W. DERBY and Raymond J. Boyle, Appellees.
• Court: Iowa Supreme Court

Page 581

211 N.W.2d 581

Lanny J. HANKINS, by Albert Hankins, his father and next friend, Appellant, v. Leo W. DERBY and Raymond J. Boyle, Appellees.

No. 55438.

Supreme Court of Iowa.

Oct. 17, 1973.

Paul W. Deck Law Office and Richard L. McCoy, Sioux City, for appellant.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, and Marvin F. Heidman, Sioux City, for appellee Boyle.

Shull, Marshall, Marks & Vizintos, and Charles R. Wolle, Sioux City, for appellee Derby.

Considered en banc.

REES, Justice.

This is a permissive appeal from trial court's order sustaining motions of defendants, separately filed, to strike amendments to plaintiff's petition.

In his original petition, the minor plaintiff alleged he was injured while a passenger in an automobile driven by his mother; that while the automobile in which he was an occupant was halted in a line of traffic, it was struck from the rear by the vehicle of defendant Derby, and that a vehicle driven by defendant Boyle, in turn, struck the Derby vehicle causing it to again come into collision with the automobile occupied by plaintiff.

Plaintiff's original petition contained the usual allegations of physical injuries to the plaintiff, alleging that he had suffered pain, had been incapacitated and incurred medical expense. In the amendments which were stricken on motion, plaintiff alleged as against both defendants that his mother, Bonnie R. Hankins, had incurred injuries to her neck and body requiring medical and hospital care and treatment, that she was for a time totally disabled and would in the future be disabled to some degree, that she had endured physical pain and suffering and will endure further physical pain and suffering in the future.

Plaintiff further alleged that as the result of the injuries to his mother as aforesaid, he had been deprived, and would continue to be deprived in the future, of the family relationship, loss of companionship and association, the care, attention, kindness, maternal guidance, comfort and solace of his mother's society, for which he demanded judgment against the defendants and each and both of them.

Separate motions to strike were filed by defendants Boyle and Derby. They were argued and submitted together, and the motions to strike the amendments to the plaintiff's petition were sustained. From the order sustaining such motions, plaintiff appeals.

I. Concededly, the argument advanced by plaintiff in seeking to reverse the ruling of trial court has a great emotional appeal. No one questions the fact a child has an interest in the maintenance of a viable family relationship and in all the benefits derived from the family circle. The legislative branch of the government may properly give the interest of a child in a case such as this legal sanction so as to make the invasion or destruction thereof a legal wrong.

The cause of action asserted by plaintiff in the amendments to his petition stricken by trial court in this case is unknown to the common law, and has no direct statutory sanction.

Plaintiff suggests in his brief and argument that the issue before us is simply whether this court will now face up to its responsibility of providing redress to the injured minor plaintiff and allow and permit his recovery, or whether this court will hide behind the hollow and archaic notion that just because recoveries have not been permitted in the past they shall not be permitted in the future.

We do not believe the question can be so cavalierly treated. While this problem has not been before us heretofore, it has received the attention of courts of other jurisdictions, and by legal writers.

In Prosser, Law of Torts (4th Ed.) at page 896, we find:

'The interest of the child in proper parental care, which has received only scanty recognition in cases of intentional interference, has run into a stone wall where there is merely negligent injury to the parent. The liability has been rejected even in the District of Columbia (Hill v. Sibley Memorial Hospital, D.D.C.1952, 108 F.Supp. 729 (739); Pleasant v. Washington Sand & Gravel Co., 1958, 104 U.S.App.D.C. 374, 262 F.2d 471) which began the recognition of the wife's cause of action; and there has been the same refusal to consider it in half a dozen other jurisdictions. (Jeune v. Del E. Webb Const. Co., 1954, 77 Ariz. 226, 269 P.2d 723; Turner v. Atlantic Coast Line R. Co., N.D.Ga.1958, 159 F.Supp. 590; Hoffman v. Dautel, 1961, 189 Kan. 165, 368 P.2d 57; Erhardt v. Havens, Inc., 1958, 53 Wash.2d 103, 330 P.2d 1010; Hayrynen v. White Pine Copper Co., 1968, 9 Mich.App. 452, 157 N.W.2d 502.) The sole flicker of recognition came from a lower federal court in Hawaii (Scruggs v. Meredith, D.Hawaii 1955, 134 F.Supp. 868), guessing at Hawaiian law; but after the supreme court of Hawaii (Halberg v. Young, 1957, 41 Hawaii 634, 59 A.L.R.2d 445), itself had held to the contrary, the federal decision had to be reversed on appeal (Meredith v. Scruggs, 9 Cir. 1957, 244 F.2d 604).

'It is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant's negligence. This is surely a genuine injury, and a serious one, which has received a great deal more sympathy from the legal writers than from the judges. (See Notes, 1953, 6 Vand.L.Rev. 926; 1953, 2 St. Louis L.Rev. 305; 1962, 11 Kan.L.Rev. 186; 1956, 54 Mich.L.Rev. 1023; 1956, 42 Corn.L.Q. 115; 1956, 8 S.C.L.Q. 477.) There is of course the same problem of preventing double compensation as in the case of the wife's action, since the child will to some extent benefit by any sum recovered by the injured parent; but it is quite evident that this will not and cannot recompense him for all that he has lost. The obstacles in the way of satisfactory limitation of recovery are no greater than in the case of the wife. As has been said even by one court (Hill v. Sibley Memorial Hospital, D.D.C.1952, 108 F.Supp. 739) which considered itself forced to deny recovery, it is difficult 'on the basis of natural justice to reach the conclusion that this type of action will not lie.' It is particularly difficult when recovery is permitted to the wife, but denied to the child.'

(Citations of authority parenthetically supplied).

Some courts have recognized the right of a child to maintain an action for an intentional tort in a case where one parent has been enticed away by another and the affections of said parent alienated. We would find ourselves hard put to differentiate between a case bottomed upon such a factual situation and a case such as the one before us here where redress is sought for an unintentional or negligent tort. Plaintiff places some reliance on the case of Daily v. Parker, 152 F.2d 174 (7th Cir. 1945), and quotes from said case as follows:

'Our conclusion, without going further into the matter, is that a child today has a right enforceable in a court of law, against one who has invaded and taken from said child the support and maintenance of its father, as well as damages, for the destruction of other rights which arise out of the family relationship and which have been destroyed or defeated by a wrong doing third party.'

In Law of Torts, Supra, at page 886, with respect to said proposition, Dean Prosser said:

'The older common law gave the child no right to the 'services' of a parent, as distinguished from his support. There were no cases dealing with any liability for alienation of the parent's affections. It is only within recent years that the question has even been raised. (Coulter v. Coulter, 1923, 73 Colo. 144, 214 P. 400; Cole v. Cole, 1931, 277 Mass. 50, 177 N.E. 810; Morrow v. Yannantuono, 1934, 152 Misc. 134, 273 N.Y.S. 912, all denying liability.) Since 1923 some eleven courts have held that the child's action will not lie. (Kane v. Quigley, 1964, 1 Ohio St. (2d) 1, 203 N.W.2d 338; Whitcomb v. Huffington, 1956, 180 Kan. 340, 304 P.2d 465; Lucas v. Bishop, 1955, 224 Ark. 353, 273 S.W.2d 397; Scholberg v. Itnyre, 1953, 264 Wis. 211, 58 N.W.2d 698; Edler v. MacAlpine-Downie, 1950, 86 U.S.App.D.C. 97, 180 F.2d 385; see Notes, 1965, 34 U.Cin.L.Rev. 545; 1965, 22 Wash. & Lee L.Rev. 247.) No better reasons have been given than the lack of any right to services, the absence of precedent, and the conclusion that any change must be for the legislature. At the time of writing the courts of four jurisdictions have recognized a cause of action in the child analogous to that of the wife for alienation of affections. It has been contended, with obvious reason, that the interest of the child in an undisturbed family life is at least of equal importance with that of either parent, and is entitled to equal consideration and redress; (See Nocca, Should a Child Have a Right of Action Against a Third Person Who Has Enticed One of His Parents Away from the Home, 1956, 2 N.Y.Law Forum 357; Notes, 1951, 39 Cal.L.Rev. 294; 1952, 32 Bos.U.L.Rev. 82; 1953, 6 Vand.L.Rev. 926; 1953, 6 Okl.L.Rev. 500; 1953, 2 St. Louis U.L.J. 305; 1954, 14 La.L.Rev. 713; 1954, 37 Marq.L.Rev. 271; 1956, 8 S.C.L.Q. 477; 1956, 42 Corn.L.Q. 115; 1957, 6 Kan.L.Rev. 95) and the prediction may be ventured that the legal remedy will gain ground in the future, and that the protection of the interests of children will not be left entirely to other agencies of social control.'

The distinction between such cases (I.e., intentional torts Vis-a-vis unintentional or negligent torts) is pointed out in Halberg v. Young, Supra, 59 A.L.R.2d at pages 451--452, in quoting from Miller v. Monsen, 228 Minn. 400, 37 N.W.2d 543:

'It is contended also that a child is not entitled to recover for injuries to its parent, citing Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154. The argument is without merit, for the obvious reason that a child's cause of action for enticement of its parent is based upon a direct wrong to the child, for which recovery is sought...