Silesky v. Kelman

• Decision Date: 27 September 1968
• Docket Number: No. 40943,40943
• Citation: 161 N.W.2d 631,281 Minn. 431
• Parties: James SILESKY by Ralph Silesky, his father and natural guardian and Ralph Silesky, individually, Appellants, v. Bernice K. KELMAN, Jack Kelman, and Anita B. Silesky, Respondents.
• Court: Minnesota Supreme Court

Page 631

161 N.W.2d 631

281 Minn. 431

James SILESKY by Ralph Silesky, his father and natural guardian and Ralph Silesky, individually Appellants, v. Bernice K. KELMAN, Jack Kelman, and Anita B. Silesky Respondents.

No. 40943.

Supreme Court of Minnesota.

Sept. 27, 1968.

Syllabus by the Court

The child-parent immunity rule in negligence cases is abrogated subject to the following exceptions: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. This change in the rule of child-parent immunity is prospective only and is to be limited Maslon, Kaplan, Edelman, Joseph & Borman, Minneapolis, for appellants.

to causes of actions arising on or after the filing date of this opinion, except that it is to be appolicable to the instant case.

Robins, Davis & Lyons, and John T. Chapman; Richards, Montgomery, Cobb & Bassford, Minneapolis, for respondents.

OPINION

NELSON, Justice.

Action by Ralph Silesky, individually and as father and natural guardian of his minor son, James Silesky, against Jack Kelman; Bernice K. Kelman; and Anita B. Silesky, the mother of James and the wife of Ralph Silesky.

On October 16, 1966, James was a passenger in a 1965 Buick Le Sabre automobile being driven north along Spring Valley Road in Golden Valley, Minnesota, by Anita Silesky, his mother. At the same time, defendant Bernice K. Kelman was driving a 1966 Chevrolet, owned by defendant Jack Kelman, east along St. Croix Avenue with Jack's consent and permission. The two cars collided at or near the intersection of the two roads.

Plaintiffs allege that said collision occurred as the result of the negligence of defendants Bernice and Jack Kelman, or the negligence of Anita B. Silesky, or as a result of the concurrent negligence of all of said defendants. Plaintiff James Silesky claims damages for personal injuries, and plaintiff Ralph Silesky seeks recovery for the medical expenses incurred in caring for his son.

On February 20 and February 21, 1967, complaints were served upon defendants. Subsequently, defendant Anita Silesky moved to dismiss on the ground that as the mother of plaintiff James and as the wife of plaintiff Ralph she was immune from the action for negligence. On May 9, 1967, the court granted this motion, and later the original order was amended to show that the court dismissed plaintiffs' complaint under Rules 12 and 56, Rules of Civil Procedure. They appealed from said orders. Defendant Anita Silesky was an insured person covered by a policy of liability insurance issued by the St. Paul Fire and Marine Insurance Company.

It is undisputed that prior to this court's decision in Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66, an unemancipated child could not maintain an action in tort against his parent. See, Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763; Miller v. Pelzer, 159 Minn. 375, 199 N.W. 97, 33 A.L.R. 678; Belleson v. Skilbeck, 185 Minn. 537, 242 N.W. 1. It was held in Balts, however, that a parent could recover in tort from its unemancipated child, a question theretofore unsettled in Minnesota.

Plaintiffs contend on appeal that the rationale underlying the Balts decision is directly applicable to the instant case and that, in fact, the two lawsuits, parent-child and child-parent, are legally indistinguishable. Plaintiffs further claim that the considerations which moved this court to abolish the doctrine of 'family immunity' in an action by a parent against a child apply equally to the instant case.

We are satisfied that the parental immunity doctrine has judicial origins. The history of its beginning in 1871 with the decision of Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, is fully covered in Balts v. Balts, supra, under its history of parent-child tort immunity.

It has been generally suggested that just as common-law principles and rules have been recognized or developed in part through judicial process, so the further adaptation and development of them must be part of the judicial power. The court may modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable. See, State v. Esser, 16 Wis.2d 567, 581, 115 N.W.2d 505, 512.

It was said by Mr. Justice Cardozo in The Nature of the Judicial Process, Adherence to Precedent (1921) pp. 142, 150--152:

'* * * I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. We have had to do this sometimes in the field of constitutional law. Perhaps we should do so oftener in fields of private law where considerations of social utility are not so aggressive and insistent. There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonable be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. In such circumstances, the words of Wheeler, J., in Dwy v. Connecticut Co., 89 Conn. 74, 99, (92 A. 883, L.R.A.1915E, 800), express the tone and temper in which problems should be met: 'That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature.' If judges have wofully misinterpreted the Mores of their day, or if the Mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.'

In 11 Am.Jur., Common Law, § 2, p. 154, it is stated:

'* * * The common law is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs; on the contrary, it is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men. Its development has been determined by the social needs of the community which it serves. In other words, the common law is the legal embodiment of practical sense. It is a comprehensive enumeration of principles sufficiently elastic to meet the social development of the people. Its guiding star has always been the rule of right and wrong, and in this country its principles demonstrate that there is in fact, as well as in theory, a remedy for all wrongs. The capacity of common law for growth and adaptation to new conditions is one of its most admirable features. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.' (Italics supplied.) Also, see, 15 Am.Jur.(2d) Common Law, §§ 2 to 4.

In the decisions touching upon intrafamily immunity, it appears that the most common reasons given in support of the doctrine are that to permit such actions would contribute to the destruction of the family by promoting strife and disrespect among the family members involved: that it may lead to fraud being practiced; and that conflicts will be promoted which will threaten demestic stability. This court in Balts waived aside these fears as unfounded when it said (273 Minn. 429, 142 N.W.2d 73):

'It has been suggested that lifting the defense of immunity will invite suits for every conceivable childish wrongdoing. We believe such fears are unfounded. It is the common experience of those who have raised families that actionable torts are simply not inflicted with any frequency within the family circle, except in the operation of the family automobile. Persons living together under normal conditions in the same home are not given to stirring up serious discord for trivial matters, and parents are not likely to incur the burden of substantial legal expenses where there is no real promise of success. Nor are lawyers apt to encourage litigation which has no merit, particularly where the customary fee arrangement is a contingent one. We are not persuaded that the removal of the immunity barrier will encourage a rash of vexatious lawsuits.'

While it appears to be conceded that abolition of parental immunity might increase litigation between children and their parents, nevertheless such litigation is not of the type likely to threaten family peace, since the only significant source of litigation apparently feared among family members is personal injury resulting from the operation of the family automobile. It has never applied to or controlled property rights. This is so whether the plaintiff is the child or the parent. Suits are permitted among unemancipated siblings even though they remain in the family...