Hoffman v. Dautel

• Decision Date: 20 January 1962
• Docket Number: No. 42423,42423
• Citation: 189 Kan. 165,368 P.2d 57
• Parties: Edward J. HOFFMAN, Eugene LeRoy Hoffman and Edna Jane Hoffman, Minors, by their Mother, Donna Irene Hoffman, their Guardian and next friend, Appellants, v. Jackie E. DAUTEL and Delmar L. Dautel, dba Dautel Brothers; The Home Insurance Company and The Home Indemnity Company of New York, New York, Corporations; H. A. Schroeder, State Automobile and Casualty Underwriters of Des Moines, Iowa; George Callahan; C. E. Short and Gene Short, dba Short & Son, and Tri-State Insurance Company, a Corporation, Appellees.
• Court: Kansas Supreme Court

Page 57

368 P.2d 57

189 Kan. 165

Edward J. HOFFMAN, Eugene LeRoy Hoffman and Edna Jane

Hoffman, Minors, by their Mother, Donna Irene

Hoffman, their Guardian and next friend, Appellants, v. Jackie E. DAUTEL and Delmar L. Dautel, dba Dautel Brothers;

The Home Insurance Company and The Home Indemnity Company of

New York, New York, Corporations; H. A. Schroeder, State

Automobile and Casualty Underwriters of Des Moines, Iowa;

George Callahan; C. E. Short and Gene Short, dba Short &

Son, and Tri-State Insurance Company, a Corporation, Appellees.

No. 42423.

Supreme Court of Kansas.

Jan. 20, 1962.

Syllabus by the Court

1. A minor child has no cause of action for damages arising out of the disability of its father, caused by negligence of the defendant, with attendant loss of acts of parental guidance, love, society, companionship and other incidences of the parent-child relationship.

2. The common law is not static, but is endowed with vitality and a capacity to grow. It never becomes permanently crystalized but changes and adjusts from time to time to new developments in social and economic life to meet the changing needs of a complex society.

3. The record in an action by minor children, through their mother and next friend, to recover damages arising out of personal injury sustained by the father in a truck-automobile accident, caused by the defendants' negligence, examined, and it is held: That the possibility of multiplicity of actions based upon a single tort and one physical injury, when there is added the double-recovery aspect of such a situation in the absence of some statutory control, is deemed sufficient to hold no cause of action was alleged, and the district court did not err in sustaining defendants' motion to strike allegations of indirect injury and damage to the plaintiffs, based upon a direct injury to the father.

Sam A. Crow, Topeka, argued the cause, and Jacob A. Dickinson, Paul C. Aiken, and Jack C. McCarter, Topeka, were on the brief with him for appellants.

John A. Bausch, Topeka, argued the cause, and L. M. Ascough, E. Edward Johnson, and Wayne T. Stratton, Topeka, were with him on the briefs for appellees and cross-appellants.

FATZER, Justice.

This was an action by three minor children, through their mother and next friend, to recover damages from the defendants for the negligent injury to their father, Everett Eugene Hoffman, who is presently living.

The defendants H. A. Schroeder; State Automobile and Casualty Underwriters of Des Moines, Iowa; George Callahan; C. E. Short and Gene Short, d/b/a Short & Son, and Tri-State Insurance Company, a corporation, are no longer parties to the action since the case was dismissed against them by plaintiffs in the district court. Defendants Jackie E. Dautel and Delmar L. Dautel, d/b/a Dautel Brothers; The Home Insurance Company, and the Home Indemnity Company of New York, New York, corporations, are the sole appellees.

The plaintiffs are the three natural minor children of Edward Eugene Hoffman. On June 9, 1958, at about 1:00 a. m. they were riding as passengers in an automobile driven by their father when it collided with the rear end of the defendant Dautel Brothers' unlighted truck which was unlawfully stopped on U. S. Highway No. 40 blocking the roadway. The accident caused the father to suffer a severe brain injury which permanently disabled him. Due to the father's injury, his character, personality and complete attitude toward his family, and particularly toward the plaintiffs, materially changed to their detriment, and resulted in the loss of the love, care, companionship, parental guidance and attention of the kind and loving parent, and the loss of their family and social association.

The appellees moved to strike paragraphs 7, 8 and 9 from the petition on the basis that minor children have no cause of action against third parties for personal injury to their parent, and that $50,000 claimed by each, for a total of $150,000, was not a proper measure of damage or an allowable item of damages. Plaintiffs have appealed from the order sustaining the motion to strike.

The sole question presented, which the parties concede is one of first impression before this court, is whether minor children have a cause of action against the defendants for direct negligent injury to their father, resulting in an indirect injury to them for loss of consortium.

The parties are agreed that no such cause of action was known to the common law (2 Cooley, Torts, 4th ed. § 174), and that there is no Kansas statute or judicial precedent which presently authorizes plaintiffs to maintain the instant action. Our attention is directed to the annotation immediately following the reported case of Halberg v. Sal K. Young, 41 Hawaii 634 (1957), 59 A.L.R.2d 445, with respect to a minor child's right of action for loss of support, training, parental attention, and the like, against third persons negligently injuring the parent. It states that the universally accepted rule in all jurisdictions, at least at the present time, is that minor children have no cause of...