Signs v. Signs

• Decision Date: 13 February 1952
• Docket Number: No. 32664,32664
• Citation: 156 Ohio St. 566,103 N.E.2d 743
• Parties: , 46 O.O. 471 SIGNS v. SIGNS et al.
• Court: Ohio Supreme Court

Page 566

156 Ohio St. 566

103 N.E.2d 743, 46 O.O. 471

SIGNS v. SIGNS et al.

No. 32664.

Supreme Court of Ohio.

Feb. 13, 1952.

Syllabus by the Court.

A parent in his business or vocational capacity is not immune from a personaltort action by his unemancipated minor child.

Thomas Signs, a minor, age seven, hereinafter designated plaintiff, instituted an action by Madeline Signs, his mother and next friend, against Leo Signs and Walter Krupp, partners doing business as Signs & Krupp, hereinafter designated defendant.

Plaintiff filed a petition in the Common Pleas Court of Huron County on September 3, 1949. In his petition plaintiff alleged that defendant is a partnership consisting of Leo Signs and Walter Krupp and engaged in automotive transportation under the name of Signs & Krupp; that on April 24, 1948, and for a considerable time before and after, defendant maintained and operated a gasoline pump on the real property of plaintiff's mother for the purpose of supplying defendant's trucks with engine fuel; that defendant observed and knew that plaintiff and children of comparable age played in and about the area of the pump; that they were so playing on April 24, 1948, when a fire burst forth near the pump and burned plaintiff; that defendant at the time and place of the fire was negligent (1) in permitting the gasoline pump to be unlocked and to so remain, (2) in allowing the hose of the pump to hang thereon and contain gasoline, (3) in permitting the pump to remain unguarded, unattended, and without protection, (4) in causing no sign, warning, or word of caution to be displayed on the pump or to be announced to the children, and (5) in failing to exercise ordinary care to prevent harm to plaintiff; that the negligence of defendant was a direct and proximate cause of plaintiff's injury and damage; and that by reason of the fire plaintiff's right leg was burned, he was confined in a hospital and suffered pain and shock.

Plaintiff prayed for damages against defendant.

To the petition defendant filed a motion to make the petition definite and certain by stating the causal relation between the acts of negligence specified therein and the fire therein described, which motion was overruled. Defendant then demurred to the petition, which demurrer was likewise overruled. Defendant thereupon filed an answer which admitted the minority of plaintiff and that he was involved in an accident, denied all the averments of negligence and alleged that Leo Signs, a member of defendant, is the father of plaintiff.

Defendant prayed for an order dismissing the petition and for judgment in its favor.

No pleading was filed to defendant's answer.

Defendant filed a motion for judgment on the pleadings which was sustained by the trial court and judgment entered, to which plaintiff excepted.

On appeal to the Court of Appeals for Huron county, the judgment of the Court of Common Pleas was reversed and the cause remanded to the Court of Common Pleas for further proceedings.

The cause is before this court upon the allowance of a motion to certify the record.

Thomas & Handy, Cleveland, for appellants.

Miller & Miller, Norwalk, for appellee.

STEWART, Judge.

The question presented to us is stated by plaintiff to be:

'Is redress of tortious acts of a partnership, in the pursuit of its business, available to a minor whose father is a member thereof?'

Defendant states the questions to be:

'1. May a minor child bring a tort action against a partnership of which his father is a member?

2. 'May a partnership be regarded as a legal entity in a tort action?'

In this opinion, the term, tort, shall mean personal tort, unless otherwise designated.

In the courts below the cause seems to have been argued upon the assumption that an unemancipated minor child may not maintain a tort action against his father, and the decisions below seem to have hinged upon the question whether, where the parent is a member of a partnership, it may properly be sued in tort by the minor child upon the theory that it is a legal entity apart from the partners.

The Common Pleas Court entered judgment for defendant upon the pleadings, the inference from which is that the court consider that, although the negligence claimed by plaintiff was that of the partnership, the father was a partner, and, since the liability of each partner was joint and several, any judgment recovered against the partnership would become a liability of the father.

The Court of Appeals reversed the judgment of the trial court, upon the theory that 'the rule inhibiting the maintenance of an action in tort by an unemancipated child against its parent should not obtain on this record as a matter of law.'

In oral argument in this court, plaintiff apparently abandoned the partnership entity theory and frankly and candidly presented the case upon the simple question as to the right of an unemancipated minor child to maintain an action in tort against his father in his business or ovcational capacity.

At common law a wife cannot maintain an action in tort against her husband. The theory of this doctrine is that husband and wife are one and that such an action would disrupt their relationship and destroy all harmony between them. However, the common law does not apply that doctrine as between a parent and his unemancipated child.

It was not until the case of Hewlett v. George, Exr., 1891, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, that the doctrine was declared in this country which denied an unemancipated infant the right to maintain a tort action against his parent. In that case the child complained that she had been wrongfully imprisoned in an insance asylum by her mother. Upon the ground that such an action disturbs the domestic peace and harmony of the family and is contrary to public policy the court held that such an action can not be maintained.

The rule formulated in that case has been generally followed, but of late has been viewed with suspicion and has been limited.

The rule has been applied in Minnesota to the extent that a child cannot recover against a partnership, composed of his father and another, for the negligence of his father in driving an automobile owned by the partnership and operated in its business, even though the partnership carried liability insurance, upon the theory that since there is no liability of the father there is no liability of his partner, as a member of the partnership, and, therefore, no liability of the insurer. Belleson v. Skilbeck, 1932, 185 Minn. 537, 242 N.W. 1.

The rule denying liability in tort in an action by an unemancipated child against his parent has met with violent disagreement in cases which support it.

In Small v. Morrison, 1923, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135, Chief Justice Clark in a dissenting opinion reviewed the history and reason of the rule and the fallacy of its application under changed conditions, and in Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113, which adhered to the rule of nonliability of the parent, one of the justices wrote a vigorous dissent.

The rule of nonliability was followed in New York in Sorrentino v. Sorrentino, 1928, 248 N.Y. 626, 162 N.E. 551, without a written opinion and with Chief Judge Cardozo and two of his associates dissenting.

In Worrell, d. b. a. Blue Ridge Bus Lines, v. Worrell, 1939, 174 Va. 11, 4 S.E.2d 343, 346, the court in a well considered case narrated the history of the rule, and criticized it as follows:

'Support for the rule is sought on the suggested analogy between an action by a wife against her husband for personal injury, and an action by a child against its parent for a personal tort committed by the parent. * * *

'We do not think that the suggested analogy of husband and wife to that of parent and child affords support for the rule. The distinction is clear. The relation of husband and wife is created by law, that of parent and child by nature. While at common law, and except as changed by statute, there is a conception of the legal unity of husband and wife, neither at common law nor under our statute is there a conception of the legal identity of parent and minor child, either in their persons or in their property rights. * * *

'In later years, economic, social and legislative changes have caused a judicial reaction to the earlier views. Modern methods of business, new or enlarged occupational capacities and the advent of the automobile and liability indemnity insurance have placed the parties in a different position. Therefore, the effect of the earlier decisions must be considered in relation to the occasion, facts and laws upon which they were based. A correct determination of each case must necessarily depend upon its facts and circumstances, and the law applicable thereto. Rules of thumb must give way to rules of reason.'

In the Worrell case the plaintiff, a minor daughter, brought an action against her father, a common carrier by bus. The plaintiff claimed damages for personal injuries resulting from the negligent operation of the bus. It was contended that the action could not be maintained against the parent. However, the court held that, since it was compulsory in Virginia for a common carrier to carry liability insurance and since plaintiff's father would be indemnified for any damages recovered by the daughter, the reason for the rule denying liability entirely disappeared and therefore the rule could not prevail.

The court said:

'It is true that the issuance of an insurance policy creates no cause of action where no cause of action exists in the absence of insurance. The existence of insurance has no effect upon the merits of the cause of action. The merits of the action depend upon culpability, from whence may arise liability. It is for these reasons that evidence of insurance is not permitted to go before a jury in Virginia. Liability insurance, while it does not, therefore, affect the merits of the cause of action...