Nahas v. Noble

• Decision Date: 03 October 1966
• Docket Number: No. 7840,7840
• Citation: 1966 NMSC 200,77 N.M. 139,420 P.2d 127
• Parties: Nina NAHAS, Plaintiff-Appellant, v. Mary Louise NOBLE, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 127

420 P.2d 127

77 N.M. 139

Nina NAHAS, Plaintiff-Appellant, v. Mary Louise NOBLE, Defendant-Appellee.

No. 7840.

Supreme Court of New Mexico.

Oct. 3, 1966.

Rehearing Denied Nov. 22, 1966.

[77 NM 139] McRae Ussery, Mims, Ortega & Kitts, William E. Snead, Albuquereque, for appellant.

[77 NM 140] Rodey, Dickason, Sloan, Akin & Robb, Charles B. Larrabee, Albuquerque, for appellee.

OPINION

CARMODY, Chief Justice.

This is an appeal from a directed verdict in favor of defendant at the close of plaintiff's case.

The question to be decided is: If an unemancipated minor child negligently injures a parent, may the parent sue the child for those injuries after the child becomes emancipated? Our answer is 'No.'

Plaintiff was a passenger in an automobile owned by her and her husband, driven by the defendant at plaintiff's request. There was a collision with another vehicle. At the time of this accident, defendant was nineteen years old, living at home with her parents. Plaintiff is her mother. No claim is made that defendant was other than an unemancipated minor at the time of the accident.

Fifteen months after the accident, defendant married. Since her marriage, she has not been a member of her mother's household. Sixteen months after defendant's marriage, plaintiff sued defendant, claiming defendant's negligence caused the automobile accident and her resulting injuries. No claim is made that defendant was other than an emancipated minor at the time suit was filed.

The author of the annotation at 60 A.L.R.2d 1285 states:

'Although there is some authority to the contrary, the overwhelming majority of the cases sustain the view that a parent or his representative cannot maintain an action in tort against an unemancipated minor child, at least in the absence of a statute conferring such right, the reasons advanced for the rule being the necessity for the encouragement of family unity and the maintenance of family discipline, which are also the reasons advanced for the majority rule forbidding a minor child to maintain a tort action against its parent. * * *'

Suits by a parent against a child tend to disrupt the family relationship because of the antagonism implicit in such suits. Schneider v. Schneider, 1930, 160 Md. 18, 152 A. 498, 72 A.L.R. 449. There is an inconsistency between the parent's position as a natural guardian of the child and the parent's position as plaintiff demanding damages from the child. Shaker v. Shaker, 1942, 129 Conn. 518, 29 A.2d 765. '* * * (I)t is repugnant to the prevailing sense of propriety that a mother should bring an action at law against her own minor child, * * *.' Oliveria v. Oliveria, 1940, 305 Mass. 297, 25 N.E.2d 766.

Encouragement of family unity and the maintenance of family discipline being sound public policy, we hold that a parent cannot maintain an action in negligence against an unemancipated minor child.

Plaintiff, however, asserts that the rule forbidding parent-child suits is not longer applicable when the child becomes emancipated. She relies on Logan v. Reaves, 1962, 209 Tenn. 631, 354 S.W.2d 789. In Logan, the child was a minor at the time of the accident but was emancipated by marriage prior to the time the suit was filed. The Tennessee court held that when the public policy of protecting the family relationship ceases, then the rule disallowing a parent's suit against the child no longer applied. Emancipation having terminated the family relationship, the rule did not apply and the action against the emancipated child could be maintained. Although the Logan case was a wrongful death action, the ruling of the Tennessee court is based on the emancipation of the minor at the time suit was filed.

Plaintiff also relies on Palcsey v. Tepper, 1962, 71 N.J.Super. 294, 176 A.2d 818. This was also a wrongful death case. Suit by the minor child against the estate of the deceased parent was allowed. The family relationship was destroyed by the death of the parent. It is thus distinguishable on its facts. Plaintiff cites Trevarton v. Trevarton, 1963, 151 Colo. 418, 378 P.2d 640, and Dunlap v. Dunlap, 1930, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055. In these cases there was a business or employment relationship between the parent and child, and thus they are not applicable to the factual situation in this case.

With certain exceptions, the Wisconsin court in Goller v. White, 1963, 20 Wis.2d 402, 122 N.W.2d 193, held that an unemancipated minor could sue the parent on the basis of negligent injury. In so doing, the court stated that liability insurance could be considered in making the policy decision of whether to abrogate parental immunity in negligence actions. Compare also Ertl v. Ertl, 1966, 30 Wis.2d 372, 141 N.W.2d 208; Balts v. Balts (Minn.1966), 142 N.W.2d 66; and Gaudreau v. Gaudreau (N.H.1965), 215 A.2d 695. Other courts have held that liability insurance is not to be considered. Tucker v. Tucker (Okl.1964), 395 P.2d 67; Rambo v. Rambo, 1938, 195 Ark. 832, 114 S.W.2d 468. See 60 A.L.R.2d 1288. Where defendant is immune to suit, the existence of insurance does not constitute a waiver of that immunity, absent specific legislative authorization. Clark v. Ruidoso-Hondo Valley Hospital, 1963, 72 N.M. 9, 380 P.2d 168. The question is whether the parent's suit may be maintained against the child. So far as plaintiff is concerned, liability insurance pertains to collection of any judgment that might be obtained, and accordingly its presence or absence is not relevant in determining whether the action lies in the first instance.

In Brown v. Parker (Mo.App.1964), 375 S.W.2d 594, the minor was unemancipated at the time of the accident and at the time suit was filed, but had reached majority before the answer was filed. The Missouri court stated that an unemancipated minor child could not sue his parent for an unintentional tort and held that the same rule would apply to prevent a parent suing an unemancipated minor child. In each situation the basis for the rule is a 'public policy which refuses to allow the family relationship to be disturbed by such actions.'

It was argued in Brown v. Parker, supra, that the parent's disability to sue disappeared upon the defendant's reaching the age of twenty-one prior to trial. It was further argued that the rule prohibiting the parent's action against the child should not apply since the basis for the rule, maintenance of the family relationship, had vanished. This is the argument that was accepted in Logan v. Reaves, supra, but not in Missouri when that court stated:

'However logical such an argument may be, the same considerations of public policy prevent our adopting it. In the first place the effect of such a ruling would be to allow a parent to sue an unemancipated minor child providing he could keep the case alive until after the child reaches legal age. Such a state of events would clearly violate the sound considerations upon which the rule is based. The family relationship would be disturbed during the time the parent waited for the child to become of age. * * *'

The same policy considerations apply to prevent suits by an emancipated minor against a parent for negligent injury inflicted by the parent at a time when the child was unemancipated. Tucker v. Tucker, supra; Reingold v. Reingold, 1935, 115 N.J.L. 532, 181 A. 153; Shea v. Pettee, 1954, 19 Conn.Supp. 125, 110 A.2d 492.

Plaintiff, in opposing application of the rule prohibiting her suit against her daughter, argues that any family disharmony created by the injury has already occurred. This argument fails to consider the effect of prospective litigation on the family relationship. What public policy forbids is litigation between parent and child based on negligent acts of the defendant occurring at the time the child was a member of the family unit and subject to parental care and discipline. Brown v. Parker, supra.

Questions of public policy are ordinarily determined by the legislature. We think this long-established and generally accepted rule of public policy is a matter for proper consideration by the legislature but that it should not be overturned by the court.

The trial court did not err in directing the verdict. The judgment is affirmed.

It is so ordered.

CHAVEZ, NOBLE, and COMPTON, JJ. concur.

MOISE, J., dissenting.

MOISE, Justice (dissenting).

After considerable research and thought I have concluded that the opinion of the court does not accord with what would seem to me to be the proper disposition of this case.

My disagreement is not founded on the tenuous distinction suggested by appellant to the effect that emancipation prior to suit should negate the child's immunity to suit by the parent but is based on my belief that logic and reason do not support such an immunity, whether the child is emancipated or unemancipated.

Also, since we have no precedent in New Mexico, we have no problem of stare decisis such as was...