Rambo v. Rambo

• Decision Date: 14 March 1938
• Docket Number: 4-4988
• Citation: 114 S.W.2d 468,195 Ark. 832
• Parties: RAMBO v. RAMBO
• Court: Arkansas Supreme Court

114 S.W.2d 468

195 Ark. 832

RAMBO v. RAMBO

4-4988

Supreme Court of Arkansas

March 14, 1938

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.

Judgment reversed and cause dismissed.

Daily & Woods, for appellant.

Partain & Agee, for appellee.

OPINION

MCHANEY, J.

Appellee, Billy Rambo, six years of age, brought this action by his mother and next friend against appellant, his father to recover damages in the sum of $ 50,000 for personal injuries sustained by him through the alleged negligence of his father and of his agents, servants and employees. The complaint failed to allege the relationship existing between the parties. A motion of appellant to require this relationship to be alleged was overruled by the trial court. Thereupon, counsel for appellant filed a demurrer for him alleging that Billy Rambo is the minor son of appellant; that Faye Rambo, mother and next friend of Billy, is the wife of appellant; and that they all live together as one family, and that no cause of action exists in favor of appellee against appellant for the alleged tort, and that the complaint fails to state facts sufficient to constitute a cause of action. An answer was also filed denying the material allegations of the complaint. Counsel for appellee then filed an amendment to the complaint, admitting the relationship disclosed in the answer, and, in addition, alleging that appellant carried public liability insurance in the sum of $ 10,000, indemnifying him against loss by reason of injuries suffered by members of the public to that extent, and reduced the amount of the demand to that sum. Appellant moved to strike from said amendment all reference to the insurance carried by appellant. This motion was overruled, as was a general demurrer to the amendment, all over the objections and exceptions of appellant. Thereupon, an answer was filed to the amendment denying all the material allegations thereof. Trial resulted in a verdict and judgment against appellant for $ 10,000.

For the purpose of this decision, we assume that the negligence as alleged was established by the evidence. This leaves for consideration only questions of law, two in number. The first is whether an unemancipated minor child may maintain an action for damages against a parent, based on an involuntary tort, that is, an unintentional tort; and the second is whether the existence of a policy of liability insurance, protecting the parent from loss for injury to a member of the public, would save such an action otherwise not maintainable. We think both questions must be answered in the negative.

1. So far as we are advised by the diligence of counsel as reflected by the excellent briefs, and so far as our own investigation discloses, this court has never heretofore had the exact point for decision. A number of the courts of last resort in the United States have had this question for decision and they all hold, as stated in 46 C. J., p. 1324, that, "An unemancipated minor child has no right of action against a parent or a person standing in loco parentis, for the tort of such parent or person, unless a right of action is authorized by statute, although it has been held that the action may be maintained after emancipation of the child. Nor can the child, even after reaching majority, maintain an action for tort committed by the parent while the child was an unemancipated minor." The contrary doctrine is then stated that, "In some jurisdictions it has been held that a minor child may maintain an action against a step-parent, or a person in loco parentis, for malicious assault or cruel and unhuman treatment." A great many cases are cited by the author to support the text, many of which are cited by counsel for appellant.

One of such cases is Matarese v. Matarese, 47 R.I. 131, 131 A. 198, 42 A. L. R. 1360, wherein the reasons for the rule are stated as follows: "Anything that brings the child into conflict with the father or diminishes the father's authority or hampers him in its exercise is repugnant to the family establishment and is not to be countenanced save upon positive provisions of the statute law. Any proceeding tending to bring discord into the family and disorganize its government may well be regarded as contrary to the common law, and not to be sanctioned by the courts. Such conflict would arise by recognizing the right of a minor child to bring his personal action against the father to recover damages for torts alleged to have been committed by the father in the course of the family relation, and resulting in personal injury to the child. The state by criminal proceedings will punish the father for the gross abuse of his power of control and discipline resulting in injury. For his continued abuse or neglect, indicating that the restraint arising from parental affection has failed, the state will remove the child from the father's control. It is, however, inconsistent with the family relation, while it exists, to permit the maintenance of such an action as that at bar of a minor child against his father to recover damages for the alleged negligence of the father."

The reasons for the rule are stated somewhat differently in Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A. L. R. 1113, as follows: "The family is a social unit. The members thereof are of the same blood. They are bound together by the strongest natural ties. Naturally, mutual love and affection obtain between the members thereof. There is mutual interest in one another's welfare. The family fireside is a place of repose and happiness. Society takes its caste from the character of its homes. It has a deep interest in maintaining in its integrity and stability the natural conception of the family unit. This imputes authority to the parent and requires obedience of the child. To question the authority of the parent or to encourage the disobedience of the child is to impair the peace and happiness of the family and undermine the wholesome influence of the home. To permit a child to maintain an action in tort against the parent is to introduce discord and contention where the laws of nature have established peace and obedience. Natural instinct condemns such proceedings as most unseemly, and the laws of society will not, to the detriment of society, defeat the benign influence of the laws of nature. That public policy which looks to the public welfare will not encourage discord and rebellion in the family unit, and thus destroy that wholesome influence of the home in moulding the character of our future citizens. Generally speaking, filial affection is ample protection to the child from excessive punishment at the hands of the parent, but where the authority of the parent is abused in the way of excessive or brutal punishment a child will be protected through the criminal laws of the state. True, this does not redress the child for permanent injuries which thus may be inflicted. But it is deemed better public policy that occasional injuries of this kind go unrequited rather than encourage or tolerate proceedings so repugnant to natural sentiments concerning family relations."

We think it unnecessary to cite or quote further from the cases listed in the note to the text above quoted in Corpus Juris but deem it sufficient to say that the author cites cases from the following jurisdictions: Ill., Ind., Mich., Minn., Miss., N. J.,...