Lee v. Comer

• Decision Date: 18 May 1976
• Docket Number: No. 13550,13550
• Citation: 224 S.E.2d 721,159 W.Va. 585
• Court: West Virginia Supreme Court
• Parties: Fay LEE, an infant, etc. v. Simon P. COMER and Lark Lee.

Page 721

224 S.E.2d 721

159 W.Va. 585

Fay LEE, an infant, etc. v. Simon P. COMER and Lark Lee.

No. 13550.

Supreme Court of Appeals of West Virginia.

May 18, 1976.

Concurring Opinion May 20, 1976.

Syllabus by the Court

1. Unemancipated minors enjoy the same right to protection and to legal redress for wrongs done them as others enjoy.

2. An unemancipated minor may maintain an action against his parent for personal injuries sustained in a motor vehicle accident caused by the negligence of said parent and to that extent the parental immunity doctrine is abrogated in this jurisdiction.

3. Wherein the decisions in Chase v. Greyhound Lines, Inc., W.Va., 195 S.E.2d 810 (1973); Adams v. Grogg, 153 W.Va. 55, 166 S.E.2d 755 (1969); Freeland v. Freeland, 152 W.Va. 332, 162 S.E.2d 922 (1968); Securo v. Securo, 110 W.Va. 1, 156 S.E. 750 (1931) and any other decisions rendered by this Court are inconsistent with the principles set forth in this case such decisions are hereby overruled.

W. H. Ballard, II, Ballard & Brumfield, G. David Brumfield, Welch, for appellant.

Tutwiler, Crockett & LaCaria, Charles A. Tutwiler, Welch, for appellees.

CAPLAN, Justice.

This appeal involves one aspect of the parental immunity doctrine. Specifically, the question is: Can the plaintiff, an unemancipated daughter of the defendant, maintain an action in tort against said defendant for injuries allegedly received by her in an accident which occurred while she was a passenger in an automobile owned by the defendant? The trial court's answer in the negative prompted this appeal.

Subsequent to the institution of this action the plaintiff and defendant Comer were married to each other. On January 16, 1973 the defendants filed a motion to dismiss the action, defendant Comer contending that his marriage to the plaintiff operated as a bar to this action against him. The dismissal was requested on behalf of defendant Lark Lee on the ground that the plaintiff was his unemancipated infant daughter residing with him at the time she was injured. The plaintiff readily admits that by reason of her marriage to defendant Comer she cannot now maintain an action against him. The only issue, therefore, is the propriety of the action against her father.

The defendants' motion to dismiss was sustained by the trial court and judgment was entered dismissing the action on its merits. This appeal followed.

From the pleadings and affidavits contained in the record it appears that on April 30, 1972 the plaintiff asked her father, Lark Lee, for permission to use his automobile for the purpose of driving to a restaurant in Welch, West Virginia. When she made this request it was known to her father that she did not have an operator's license, but it was understood that defendant Comer would drive the car. In his affidavit Lark Lee clearly acknowledged that he knew that Simon Comer would drive the automobile and that he readily gave his permission. Defendant Lee said in his affidavit: 'On April 30, 1972, my daughter, Faye, was a member of my household, and I let her and Simon use by car for my daughter's pleasure and convenience in going to the drive-in to get something to eat, and at the time and place of the accident, Simon Comer was driving my car with my permission and with my consent for the pleasure and convenience of my said daughter, Faye.'

Faye and Simon did drive to Welch in defendant Lee's automobile. Upon their return, Simon allegedly lost control of the vehicle and it plunged over an embankment, causing injury to the plaintiff. This action ensued.

It is undisputed that the plaintiff was unemancipated at the time of her injury. It is also undisputed that since her marriage to Simon Comer she has been totally independent of her father and has been wholly emancipated. Contrary to the contention of the plaintiff, her emancipation subsequent to her injury gives her no additional right to maintain this action. Her right to sue must exist at the time of the injury and her subsequent emancipation is of no consequence. 'An emancipated child cannot maintain an action against his parent for a tort committed before emancipation if at the time of the wrong the action was not maintainable.' 59 Am.Jur.2d, Parent and Child, § 157. See Shea v. Pettee, 19 Conn.Sup. 125, 110 A.2d 492 (1954); Tucker v. Tucker, (Okl.) 395 P.2d 67 (1964); and London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 64 N.W.2d 781 (1954). In the instant case we must determine whether the plaintiff, an unemancipated infant at the time of her injury, can maintain an action against her father.

The doctrine of parental immunity, as currently known, was introduced into American jurisprudence by the Mississippi Supreme Court in Hewlett v. George, 68 Miss. 703, 9 So. 885 in 1891, and rapidly spread throughout the various jurisdictions of our country. The basis for that doctrine was the preservation of domestic or family tranquillity and was expressed by that court in the following language:

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. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.

In recent years the application of this doctrine has begun to recede as rapidly as it had once spread. There has been a definite trend throughout our courts toward the abrogation or limitation of such doctrine. Many jurisdictions have carved out exceptions to the doctrine which indicates a 'growing judicial distaste for a rule of law which in one sweep disqualified an entire class of injured minors.' Gibson v. Gibson, 3 Cal.2d 914, 92 Cal.Rptr. 288, 479 P.2d 648, 650 (1971). We perceive no reason why minor children should not enjoy the same right to legal redress for wrongs done to them as others enjoy. Certainly the need for and value of family tranquillity must not be discounted, but to hold that a child's 'pains must be endured for the peace and welfare of the family is something of a mockery'. Badigian v. Badigian, 9 N.Y.2d 472, 482, 215 N.Y.S.2d 35, 43, 174 N.E.2d 718, 724 (1961) (Fuld, J., dissenting).

The general rule is that where there is a negligent injury, liability results; any immunity from such liability is the exception. Justice Rutledge said, in President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (1942), 'We start with general principles. For negligent or tortious conduct liability is the rule. Immunity is the exception.'

Prior to Hewlett, supra, and presently, English and American common law had permitted and now permits a minor child to maintain an action against his parent for matters of contract and property. Sorensen v. Sorensen, Mass., 339 N.E.2d 907 (1975). Recognizing that such right of action by a minor child has long existed, it is stated in Prosser, Torts, § 122 (4th ed. 1971), 'Although there were no old decisions, the speculation on the matter has been that there is no good reason to think that the English law would not permit actions for personal torts as well . . .'. See Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 (1930). Experience reveals that some of the most bitter family disputes arise over property, but parental immunity does not in such a case limit the cause of action. 'Is it reasonable to say that our law should protect the property and contract rights of a minor more zealously than the rights of his person?' This question, posed by the Arizona Supreme Court in Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282, 41 A.L.R.3d 891 (1970), was emphatically answered in the negative. We concur in that answer.

Family tranquillity which serves as the basis for the public policy on which parental immunity is founded is not a proper justification to deprive a minor child of the rights alluded to above. We do not here advocate the total abrogation of the parental immunity doctrine. We do, however, abrogate totally that doctrine in cases where a child is injured in an automobile accident as a result of his parent's negligence.

The rights of such minor child must be considered in light of today's contemporary conditions and modern concepts of fairness. In the realm of automobile accident cases we cannot brush aside or ignore the almost universal existence of liability insurance. Where liability insurance exists the domestic tranquillity argument is no longer valid, for, in fact, the real defendant is not the parent, but the insurance carrier. Chase v. Greyhound Lines, Inc., W.Va., 195 S.E.2d 810 (1973) (Concurring opinion). We quote with approval from Hebel v. Hebel, (Alaska) 435 P.2d 8 (1967); 'We are of the further view that although the existence of liability insurance does not create liability its presence is of considerable significance here. To persist in adherence to family-harmony and parental-discipline-and-control arguments when there is automobile liability insurance involved is in our view unrealistic. If there is insurance there is small possibility that parental discipline will be undermined, or that the peace of the family will be shattered by allowance of the action.' Accord: Streenz v. Streenz, supra; Sorensen v. Sorensen, supra; Gibson v. Gibson, supra; Petersen v. City and County of Honolulu, 51 Haw. 484, 462 P.2d 1007 (1970); Rupert v. Stienne, Nev., 528 P.2d 1013 (1974); Rigdon v. Rigdon, (Ky.) 465 S.W.2d 921 (1971); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972); Briere v. Briere, 107 N.H 432, 224 A.2d 588 (1966); France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (1969); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); ...