Rozell v. Rozell

Decision Date11 July 1939
PartiesROZELL v. ROZELL.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Ernest A. Rozell, an infant, by Ernest D. Cowles, his guardian ad litem, against Evelyn D. Rozell, an infant, by George Rozell, her guardian ad litem, to recover damages for personal injuries. From judgment entered on the order of the Appellate Division, 256 App.Div. 61, 8 N.Y.S.2d 901, which unanimously affirmed judgment of Trial Term in favor of plaintiff, defendant appeals by permission of the Court of Appeals.

Affirmed. Walter A. Chambers, of Glens Falls, for appellant.

James A. Leary and Walter A. Fullerton, both of Saratoga Springs, for respondent.

RIPPEY, Judge.

On May 2, 1937, at about 1:00 P. M., the plaintiff, a boy then twelve years of age, was a passenger in an automobile being driven by defendant, his sister, then sixteen years of age, when a collision occurred between the car in which they were riding and another car due, as the jury have found to the negligence of the defendant in the operation of the car. For the injuries received, plaintiff has recovered. The judgment entered upon the verdict of the jury has been unanimously affirmed by the Appellate Division and defendant has appealed by permission of this court.

Defendant in her answer denied the charge of negligence against her set up in the complaint and alleged, and the testimony shows, that both infants were living with their father and mother at the time of the accident and were being supported by their father, that neither had any separate estate and that both were under the control and direction of the father. Neither was married. On the issues here involved, it seems of little moment whether they were or were not emancipated. An infant is generally responsible for his own torts. Tifft v. Tifft, 4 Denio 175;Steinberg v. Cauchois, 249 App.Div. 518, 293 N.Y.S. 147;Williams v. Hays, 143 N.Y. 442, 448,38 N.E. 449, 26 L.R.A. 153, 42 Am.St.Rep. 743. Persons who are not members of the family when injured through the tortious negligence of minors may recover damages against them by way of compensation for injuries sustained. The principle is not affected by the mere fact that the injuries are caused by the negligent operation of an automobile. No logical reason nor reported authority exists to indicate that the rule of liability should be changed when brothers and sisters are involved.

As a ground for reversal, the defendant asserts that the action is not maintainable because public policy forbids. Neither the Constitution, statutes nor judicial decisions of the State directly or by fair implication declare any State policy against which the maintenance of such an action offends. In the absence of such a declaration, it is asserted that such an action should not be permitted because litigation between brothers and sisters seriously disturbs the family relationships and is destructive of the family unit, which is still the basis of society, and, if permitted, will be a prolific incentive to fraud, especially in personal injury cases where the owner or operator of the automobile is protected by insurance from liability.

The family has been for centuries the fundamental unit of society. The modern family, however, is far different in structure, status and internal social and legal relationship than the family of ancient times. Rigorous restrictions upon the rights and duties of its members, not only in their relations with those outside of the family unit but, as well, with one another have gradually moderated and, in some respects, have totally disappeared until our common law and constitutional and statutory sanctions affecting family relations are more in harmony with the common sense of modern life. ‘The modern tendency of decided cases is to ignore fictions and deal with things as they are’ (per Pound, J., in Drobner v. Peters, 232 N.Y. 220, 223, 133 N.E. 567, 568, 20 A.L.R. 1503).

Diligence of counsel and our own investigation have brought to our attention many analogous references. The relation between the sexes has radically changed. Man and woman are now upon a plane of substantial legal equality. Although one spouse has been held incompetent to sue the other to recover damages for a tort on the theory that husband and wife are one (Young v. Young (Eng.) 5 Fraser 330; Phillips v. Barnet, 1 L.R.Q.B.D. 436; Harper v. Harper (1929), S.C. 220; Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, 108 A.L.R. 1120), the law in Connecticut is to the contrary (Mertz v. Mertz, supra) and the Legislature of this State has now changed that rule (Laws 1937, c. 669, s 1, amending Domestic Relations Law, s 57 (Consol.Laws, c. 14). No such doctrine of identification exists between brothers and sisters or parent and child. The sons and daughters in the family are no longer subject to the patria potestas. An infant may now of his own motion maintain an action for negligence against his grandmother (Spaulding v. Mineah, 264 N.Y. 589, 191 N.E. 578) and representatives of a deceased brother against his infant sister. Lavender v. Lavender, 261 N.Y. 574, 185 N.E. 744. As between a parent and an unemancipated minor child, the weight of authority seems to be that an action still will not lie by one against the other for personal injury due to the tortious act of the latter (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551;Ciani v. Ciani, 127 Misc. 304, 215 N.Y.S. 767;Mesite v. Kirchenstein, 109 Conn. 77 145 A. 753;Schneider v. Schneider, 160 Md. 18, 152 A. 498, 72 A.L.R. 449;Hewlett v. George, 68 Miss. 703, 9 So. 885,13 L.R.A. 682;McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664,64 L.R.A. 991, 102 Am.St.Rep. 787,1 Ann.Cas. 130;Smith v. Smith, 81 Ind.App. 566, 142 N.E. 128;Foley v. Foley, 61 Ill.App. 577;Roller v. Roller, 37 Wash. 242, 79 P. 788,68 L.R.A. 893, 107 Am.St.Rep. 805,3 Ann.Cas. 1;Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135;Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113;Matarese v. Matarese, 47 R.I. 131, 131 A. 198, 42 A.L.R. 1360;Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708;Elias v. Collins, 237 Mich. 175, 211 N.W. 88, 52 A.L.R. 1118; Mannion v. Mannion, 129 A. 431, 3 N.J.Misc. 68;Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763), although, on principle and authority, a cause of action lies in favor of a mature or emancipated minor child against the parent or by a parent against an emancipated son to recover damages for willful or active negligence. 1 Beven on Negligence, 4th Ed., pp. 229-232; Lo Galbo v. Lo Galbo, 138 Misc. 485, 488, 246 N.Y.S. 565;Wells v. Wells, Mo.App. 48 S.W.2d 109, 111; Taubert v. Taubert, supra; Fowlkes v. Ray-O-Vac Co., 52 Ga.App. 338, 183 S.E. 210;Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055;Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538; cf. Harper's Law of Torts s 285, pp. 626, 627. Immunity of the responsible parent to suit vanishes where there is injury to the infant's property (see Beven on Negligence, supra; Domestic Relations Law, s 80 as amended and s 83; Real Property Law, s 522 (Consol. Laws, c. 50), and the ancient tradition that a son, whether emancipated or not, may not sue his father to recover damages for the negligence of the latter, whether active or passive if there may be such a distinction, has recently been destroyed in Scotland. Young v. Rankin (1934), S.C. 499. Elsewhere, suits between brother and brother have been maintained (Beilke v. Knaack, 207 Wis. 490, 242 N.W. 176;Munsert v. Farmers Mut. Automobile Ins. Co., 229 Wis. 581, 281 N.W. 671, 119 A.L.R. 1390), an infant may recover damages from her maternal aunt for the latter's negligence (Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640,5 Ann.Cas. 112), a minor may recover from her stepmother for an assault (Treschman v. Treschman, 28 Ind.App. 206, 61 N.E. 961), and, as stated in this headnote, a ‘child cannot be denied right to sue parent for tort because of effect on discipline and family life’ (Dunlap v. Dunlap, supra).

It is unnecessary to pile up further analogous references. Allusions to others of similar import might be extensively made. Persuasive are the analogies cited and they are not too remote. Notwithstanding such changes from tradition, predictions of dire results to the continued peace and amity of the family relationship have not been sustained. Legal prohibitions alone will not hold together the family life. There is something finer and deeper than artificial compulsions that makes the family relationship as strong and causes it to be as zealously maintained as in the ancient age. Family ties between brother and sister are as strong today as ever. If...

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