Silverstein v. Kastner

• Decision Date: 12 May 1941
• Docket Number: 144
• Citation: 342 Pa. 207,20 A.2d 205
• Parties: Silverstein, Appellant, v. Kastner et al
• Court: Pennsylvania Supreme Court

20 A.2d 205

342 Pa. 207

Silverstein, Appellant, v. Kastner et al

No. 144

Supreme Court of Pennsylvania

May 12, 1941

Argued April 21, 1941.

Appeal, No. 144, Jan. T., 1941, from judgment of C.P. No. 6 Phila. Co., June T., 1939, No. 2196, in case of Dorothy Silverstein v. Richard Kastner et al. Judgment affirmed.

Trespass for personal injuries.

Affidavit of defense raising questions of law sustained and judgment entered for defendant, guardian ad litem, opinion by LEVINTHAL, J. Plaintiff appealed.

Error assigned, among others, was final judgment.

Judgment affirmed.

Louis J. Goffman, with him Wolf, Block, Schorr & Solis-Cohen, for appellant.

G. A Troutman, of McWilliams, Wagoner & Troutman, for appellee.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. DREW, JUSTICE:

A complete answer to the only question raised in this appeal is found in Duffy v. Duffy, 117 Pa.Super. 500. The question is, can a mother maintain a suit against her unemancipated minor son for injuries sustained by her in an accident resulting from his alleged negligent operation of an automobile in which she was a passenger, if the minor is indemnified against loss or damage by a casualty insurance company? The answer is that she cannot, because such actions are barred since they are disruptive of family peace, destructive of the enforcement of filial discipline, and, therefore, against public policy. This general rule has been followed almost unanimously. ^[1] And the overwhelming majority of courts, ^[2] including our own, Duffy v. Duffy, supra, have refused to recognize any distinguishing facts in the circumstance that the minor may have been carrying indemnity insurance. As said by the learned Superior Court in the Duffy case: "Without a legislative mandate, we see no justification for making such a discrimination, thus segregating automobile cases from other actions by a parent growing out of the negligent conduct of an unemancipated minor, because in many automobile cases insurance might be carried that would give protection." The fact therefore, that there was insurance in the instant case was of no moment.

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Notes:

^[1]Schneider v. Schneider, 160 Md. 18, 152 A 498; Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766; Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472; Crosby v. Crosby, 230 A.D. 651, 246 N.Y.S. 384; Turner v. Carter, 169 Tenn. 553, 89 S.W.2d 751. Cases involving the suit by an unemancipated minor child against its parent reach the same result on the same ground of public policy. See Annotations in 31 A.L.R. 1157, 71 A.L.R. 1071 and 122 A.L.R. 1352.

^[2]Owens v. Auto Mutual Indemnity Company, 235 Ala. 9, 177 So. 133; Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468; Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708; Schneider v. Schneider, 160 Md. 18, 152 A. 498; Luster v Luster, 299 Mass. 480, 13 N.E.2d 438; Elias v. Collins, 237 Mich. 175, 211 N.W. 88; Lund v. Olson, 183 Minn. 515, 237 N.W. 188; Small v. Morrison, 185 N.C. 577, 118 S.E. 12; ...