Rodebaugh v. Grand Trunk Western R. Co.

• Decision Date: 25 October 1966
• Docket Number: No. 320,No. 3,320,3
• Citation: 145 N.W.2d 401,4 Mich.App. 559
• Parties: William Lee RODEBAUGH, Jr., by Buel Crouch, Next Friend, Plaintiff, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation, Defendant and Third-Party Plaintiff-Appellant, and William Lee RODEBAUGH, Sr., Third-Party Defendant-Appellee. Cal
• Court: Court of Appeal of Michigan — District of US

Page 401

145 N.W.2d 401

4 Mich.App. 559

William Lee RODEBAUGH, Jr., by Buel Crouch, Next Friend, Plaintiff, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation Defendant and Third-Party Plaintiff-Appellant and William Lee RODEBAUGH, Sr., Third-Party Defendant-Appellee.

Cal. No. 320.

Court of Appeals of Michigan, Division No. 3.

Oct. 25, 1966.

Earl C. Opperthauser, Detroit, Charles E. Starbuck, Stratton, Wise, Early, Starbuck & Lennon, Kalamazoo, for appellant.

Roger File, Troff, Lilly & Bonow, Kalamazoo, for Rodebaugh, Jr.

J. William Dark, Doyle, James & Dark, Kalamazoo, for Rodebaugh, Sr.

Before FITZGERALD, P.J., and HOLBROOK and McGREGOR, JJ.

McGREGOR, Judge.

The unemancipated minor plaintiff was a passenger in the automobile owned and driven by his father, William Lee Rodebaugh, Sr., when it collided with one of defendant Grand Trunk's trains.

When the minor plaintiff commenced a negligence action against the railroad, the railroad filed a third-party complaint ¹ against plaintiff's father, alleging that he drove in a grossly, willfully and wantonly negligent manner in failing to stop his automobile after seeing the train for a long period of time and in attempting to race the train to the grade crossing. The third-party action was begun to obtain contribution from the plaintiff's father as a joint tort-feasor, in the event that the defendant railroad were to be found negligent. The trial court granted the senior Rodebaugh's motion for summary judgment, thereby dismissing the third-party complaint. Defendant railroad brings this appeal from that judgment.

The first issue is whether the plaintiff's father is shielded from liability for grossly negligent injuries inflicted upon his son. Although the rule in a majority of jurisdictions bars tort actions by unemancipated minors against their parents, there are strong undercurrents to the contrary.

'In recent years indications have appeared of a growing judicial inclination to depart very materially from the broad doctrine that an unemancipated minor cannot maintain a tort action against his parents.' 19 A.L.R.2d 423, 427.

What is the reason for the doctrine of parental immunity? Even the contemporary cases which have carved broad inroads into the immunity rule have recognized that there is justification for parental immunity in a certain area. Many of the cases give a wide variety of reasons, but the only reason that passes the test of critical examination is the natural parental right and obligation of care, discipline and control over minor children.

'Preservation of the parent's right to discipline his minor children has been the basic policy behind the rule of parental immunity from tort liability.' Emery v. Emery (1955), 45 Cal.2d 421, 429, 289 P.2d 218, 223.

'The doctrine of the preservation of domestic tranquility, which grants to the parent the right of immunity for tortious acts committed against minor children, was adopted by the courts as a matter of public policy. Its purpose was to uphold, protect, and sustain the family unit as a basic, living pillar of our society under parental discipline. Authority was vested in the father, or other parent, as head of the house. The law sought to shield the family unit from disruptive, internal disturbances. It is based upon the assumption that the parent will care for, guard and control the infant and other members of the family unit. That is his obligation. It was proper, therefore, for the courts to grant him immunity from the commonplace failures bound to occur in the course of daily life in every household, each one being peculiarly different from the other.' Henderson v. Henderson (1957), 11 Misc.2d 449, 454, 169 N.Y.S.2d 106, 112.

'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. Indeed, if within the wide scope of daily experiences common to the upbringing of a child a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk--for each injury caused by inattention, unwise choice or even selfishness[4 Mich.App. 563] --a new and heavy burden will be added to parenthood. * * *

'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 make for family unity.' Cannon v. Cannon (1942), 287 N.Y. 425, 428, 429, 40 N.E.2d 236, 238.

The doctrine of parental immunity from tort actions by their unemancipated children seems to have been brought into the legal world in Hewlett v. George (1891) 68 Miss. 703, 9 So. 855, 13 L.R.A. 682, which prohibited suit by a minor child against the mother for wrongfully and maliciously causing the child to be incarcerated in an insane asylum. ² This case has been the parent of absurdity. In Roller v. Roller (1905), 37 Wash. 242, 79 P. 788, 68 L.R.A. 893, 107 Am.St.Rep. 805, a daughter was not allowed to sue her father for damages for rape.

It is the duty of the judiciary to re-evaluate judicial precedents in the light of changing circumstances of life in America. Laws are the rules of conduct which enable men to exist in a civilized society. As society evolves so too must the law develop to provide satisfactory precepts for the functioning of contemporary society. The courts of many states have reexamined the parental immunity doctrine within recent years. Some have abandoned the immunity rule in these situations:

1. Cases involving wanton and willful misconduct of parents, ³ such as forcing a minor child to ride in an automobile operated by an intoxicated parent, ⁴ or such as permitting an overtired person to drive at excessive speeds. ⁵

2. Cases in which injuries resulted from parental business activities. ⁶

3. Cases in which the injuries resulted from activities completely outside the scope of parental functions. ⁷

While these theories have been cited by the courts as justification for departure from the immunity rule, most of the cases involved motor vehicle accidents. In order to understand the recent developments it would be well to examine in detail some of the more significant decisions in other jurisdictions.

In Emery v. Emery (1955), 45 Cal.2d 421, 429, 289 P.2d 218, 224, the Supreme Court of California, by the present Chief Justice, Roger Traynor, in an automobile accident case, held that:

'Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental discipline. No sound public policy would be subserved by extending it beyond those limits. While it may seem repugnant to allow a minor to sue his parent, we think it more repugnant to leave a minor child without redress for the damage he has suffered by reason of his parent's wilful or malicious misconduct. A child, like every other individual, has a right to freedom from such injury. Accordingly, we conclude that an unemancipated minor may sue his parent for a wilful or malicious tort.'

Traynor distinguished this case in which the complaint alleged willful misconduct from earlier California supreme court cases involving ordinary negligence, ⁸ which had held that a minor child has no right of action against a parent for the tort of the latter.

In Henderson v. Henderson (1957), 11 Misc.2d 449, 169 N.Y.S.2d 106, 113, a New York trial judge, in a well-written opinion, following the lead of the California supreme court and an invitation of the court of appeals, ⁹ stated of the parental immunity rule:

'It was never intended that such doctrine should become a protective cloak, under civil law, for willful and wanton offenses.'

In Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405, the Oregon Supreme Court held that the estate of a deceased unemancipated minor could sue the estate of his deceased father for willful of malicious personal...