Henderson v. Henderson

• Decision Date: 06 December 1957
• Citation: 11 Misc.2d 449,169 N.Y.S.2d 106
• Parties: Melvin HENDERSON, an infant under 14 years of age, by Mildred Henderson, his Guardian ad Litem, and Mildred Henderson, Plaintiffs, v. John HENDERSON, Defendant.
• Court: New York Supreme Court

Page 106

169 N.Y.S.2d 106

11 Misc.2d 449

Melvin HENDERSON, an infant under 14 years of age, by Mildred Henderson, his Guardian ad Litem, and Mildred Henderson, Plaintiffs, v. John HENDERSON, Defendant.

Supreme Court, Kings County.

Dec. 6, 1957.

Kupfer & Levine, New York City, for plaintiffs.

Joseph A. Owens, Brooklyn, for defendant.

SCHWARTZWALD, Justice.

The principal problem presented in the instant application involves the question of the parent's immunity to civil suit brought by his three-year old minor son to recover damages for injuries sustained as a result of the father's willful and wanton tortious acts while driving an automobile in which the infant was a passenger.

Defendant moves under Rule 107, subdivision 2, of the Rules of Civil Practice to dismiss the complaint upon the ground that the plaintiffs, infant son and wife of the defendant, do not have the legal capacity to sue herein or, in the alternative, to dismiss the second cause of action, wife v. husband, for loss of the infant's services and for medical expenses.

The accident occurred in New Jersey. It is alleged that the defendant, father of the infant plaintiff, while operating his auto on the New Jersey Turnpike on November 12, 1956, was guilty of 'wilful and wanton acts of misconduct.' The particular acts consisted of driving with the prior knowledge that his 'mind and senses were befogged and benumbed as a result of imbibing intoxicating beverages'; with the prior knowledge that he was sleepy and drowsy due to lack of sleep; for driving at an excessive rate of speed while in such condition despite the protestations of the infant's mother, wife of the defendant; knowing that by continuing to operate the vehicle under such conditions, he was 'flirting with obvious, known, manifest, evident and predestined danger and injury to the infant.' The defendant fell asleep at the wheel causing the auto to leave the highway resulting in serious injuries to his son.

Defendant contends on this application that both under New Jersey law, where the accident occurred, and under New York law the plaintiffs do not have legal capacity to sue, on the ground that such actions may not be maintained by an unemancipated child against his father for the father's alleged tortious acts.

But it is the plaintiffs' contention that this action is not based upon the defendant's negligence. Such action, if predicated merely upon ordinary negligence, would concededly be barred under both New Jersey and New York law (Reingold v. Reingold, 115 N.J.L. 532, 181 A. 153; Damiano v. Damiano, 6 N.J.Misc. 849, 143 A. 3; Mannion v. Mannion, 3 N.J.Misc. 68, 129 A. 431; Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236; Sorentino v. Sorentino, 248 N.Y. 626, 162 N.E. 551; Siembab v. Siembab, 284 App.Div. 652, 134 N.Y.S.2d 437; Thickman v. Thickman, Sup., 88 N.Y.S.2d 284).

Instead, the plaintiffs claim that their complaint herein is founded upon 'wilful and wanton acts and misconduct' of the defendant, all of which are connected with the defendant's operation of his motor vehicle and that under such circumstances no immunity attaches or should attach to the parent.

Since the accident out of which the causes of action arose occurred in the State of New Jersey, the law of the place where the tort was committed must govern. Kerfoot v. Kelley, 294 N.Y. 288, 62 N.E.2d 74; Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, 108 A.L.R. 1120; Thickman v. Thickman, supra; Hopkins v. Amtorg Trading Corp., 265 App.Div. 278, 38 N.Y.S.2d 788; LaForce v. Cataract Storage Co., 162 Misc. 657, 295 N.Y.S. 145.

An examination of the New Jersey law reveals that the state courts have adopted the majority prevailing view in the United States that a parent may not be sued by an unemancipated minor child for tort based upon ordinary negligence. The question of a wanton or willful tort has not been passed upon in that state.

There being no showing to the contrary, it must be presumed that the common law of New Jersey is the same as that of New York. Friedman v. Greenberg, 110 N.J.L. 462, 166 A. 199, 87 A.L.R. 849; Bodine v. Berg, 82 N.J.L. 662, 82 A. 901, 40 L.R.A.,N.S., 65; Arams v. Arams, 182 Misc. 328, 332, 336, 45 N.Y.S.2d 251, 254, 258.

While New York has refused to allow an action based upon the negligence of the parent, there is nevertheless every indication that the immunity which attaches to the parent for ordinary negligence does not extend to situations where injuries were inflicted as a result of the parent's willful or wanton misconduct. (Cannon v. Cannon, supra; Siembab v. Siembab, supra; Meyer v. Ritterbush, 196 Misc. 551, 92 N.Y.S.2d 595.)

In Cannon v. Cannon, supra, involving an infant passenger suing his parent as owner and driver of the motor vehicle, the Court of Appeals held (287 N.Y. at page 427, 40 N.E.2d at page 237) that 'we deal with that natural kinship between parent and child which involves legal duties peculiar to that relationship, and as to which both reason and authority dictate our adherence to the rule of the Sorrentino case, supra.' The court went on to state (287 N.Y. at pages 428-29, 48 N.E.2d at pages 237, 238): 'In the exercise of that discretion and the performance of duties imposed by law through no choice by the parents, they are held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well being of their child. Lack of means, physical weakness or mental incapacity may cause parents to tolerate conditions in the family home which are unsafe and which might afford a basis for liability to one coming to the premises as an invitee or licensee. Not yet, however, have our courts granted an unemancipated child--whom the law decrees to be a member of that household--the right to hold his parents in damages for unintended personal injuries resulting from such conditions.' (Emphasis supplied.) Again 287 N.Y. on page 429, 40 N.E.2d on page 238 the court emphasized that 'In the absence of statutory sanction, we are not prepared, in cases where wilful misconduct by the parent is not a factor, to inject the disruptive risk of tort liability between parents and their unemancipated children, in which relationship both parents and children--by nature and by law--have reciprocal duties to perform which still makes for family unity.' (Emphasis supplied.)

Noteworthy, in this connection, is the fact that three judgmes in Sorrentino v. Sorrentino, supra, Cardozo, Ch. J., Crane and Andrews, JJ., dissented and voted to reverse the Appellate Division decision sustaining the trial term's dismissal of the complaint. The three dissenting justices voted to sustain the complaint in an action by a minor child against the parent to recover for personal injuries based upon negligence only.

Also, the Appellate Division, in Siembab v. Siembab, supra, gave every indication of sustaining a complaint based upon the parent's willful misconduct had the plaintiff therein included sufficient factual averments to support the general allegations of willfulness. The court stated (284 App.Div. at page 654, 134 N.Y.S.2d at page 438): 'We think the 'wilful misconduct' exception to the rule requires some allegation of facts to show in what way the parent is alleged to have willfully injured the child; and that the use of the words 'willfully', 'wantonly' and 'culpably', without factual allegations to support them, does not change the nature of the action so as to take it out of the rule which precludes an unemancipated child from bringing an action against his parent for damages for personal injuries sustained caused by the negligence of the parent. As no such factual allegations are set forth in this complaint, we hold that it does not state a cause of action against the defendant-appellant.' (Emphasis supplied.)

Testing the instant cause of action in the light of the foregoing pronouncements made by the Court of Appeals and the Appellate Division, this court could arrive at but one conclusion. Under the common law of this state such action as alleged in the instant cause is permissible and no immunity therefrom attaches to the parent.

Furthermore, an exhaustive examination de novo of the problem reveals most convincingly that any other conclusion would be contrary to law. It never was the intention of the common law to perpetuate a rule which has no support in reason, even assuming that ample cause therefor once existed. The court has a duty to bring the common law into conformity with present day standards of wisdom and justice. Where traditional common law rules of negligence have resulted in injustice, they have been altered accordingly (Woods v. Lancet, 303 N.Y. 349, 354, 102 N.E.2d 691, 27 A.L.R.2d 1250).

The common law expands with reason, living and growing in response to the needs of the community and the development of the nation (Oppenheim v. Kridel, 236 N.Y. 156, 164, 140 N.E. 227, 230, 28 A.L.R. 320).

Historically there is nothing in the English decisions to suggest that under the early common law a child could not sue a parent for a personal tort (see Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055).

The first reported case in this country appeared in 1891 (Hewlett v. George, 68 Miss. 703, 9 So. 885, 887, 13 L.R.A. 682). The court there refused to permit a suit by a minor child against the mother for wrongfully and maliciously causing the child to be incarcerated in an insane asylum. Without citation of authority the court adopted the theory that it would violate public policy to allow such an action. The reason of the court follows: 'But so 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...