Smith v. Kauffman

• Decision Date: 01 September 1971
• Citation: 183 S.E.2d 190,212 Va. 181
• Parties: Christine Margaret SMITH, an infant, etc. v. Jay G. KAUFFMAN, Administrator, etc., et al.
• Court: Virginia Supreme Court

Page 190

183 S.E.2d 190

212 Va. 181

Christine Margaret SMITH, an infant, etc. v. Jay G. KAUFFMAN, Administrator, etc., et al.

Supreme Court of Virginia.

Sept. 1, 1971.

Rehearing Denied Oct. 13, 1971.

James A. Eichner, Richmond (Allen, Allen, Allen & Allen, Richmond, on brief), for plaintiff in error.

Richard W. Schaffer, Richmond (A. Scott Anderson, Sands, Anderson, Marks & Clarke, Richmond, on brief), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

GORDON, Justice.

A seven year old child brought this action against the administrator of her stepfather's estate to recover for injuries suffered in an automobile accident, allegedly as a result of the stepfather's negligence. The trial court held that the plaintiff-child could not maintain the action because her stepfather, who stood in loco parentis to the child, was immune from liability. ¹ The court held alternatively that if the plaintiff could maintain the action, her stepfather owed only slight care because she was a gratuitous guest-passenger. Va.Code Ann. § 8--646.1 (1957). The court dismissed the action, and this appeal ensued.

We are called on to reexamine the rule of intra family tort immunity. If the plaintiff passes that barrier, we will decide whether the operator of an automobile owes the duty of ordinary care or only slight care to a seven year old passenger who is gratuitously transported.

I

In 1934 we adopted the rule that an unemancipated minor child cannot maintain an action against his parent to recover for personal injuries caused by the parent's negligence. Norfolk Southern R.R. v. Gretakis, 162 Va. 597, 174 S.E. 841 (1934). ²

Other courts have reasoned that intra family tort actions should be proscribed because of the possibility of fraud or collusion. W. Prosser, Law of Torts, § 122 at 865--66 (4th ed., 1971). But we rejected that theory in Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875 (1960), involving an action between brothers. We pointed out that '(i)f actions were barred because of the possibility of fraud many wrongs would be permitted to go without redress'. Id. at 833, 113 S.E.2d at 878. In the same vein, the Supreme Court of New Jersey recently said: 'We do not believe that the judiciary should continue to refuse to hear an entire class of actions simply because some of these claims may be the product of venality'. France v. A.P.A. Transport Corp., 56 N.J. 500, 505, 267 A.2d 490, 493 (1970).

Courts have also reasoned that parental immunity could be supported on an analogy to the common law rule proscribing interspousal personal injury actions. W. Prosser, Law of Torts, Supra. We rejected that theory in Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939).

The rule in this State is therefore grounded solely on the theory that a suit by a child against his parent 'tends to disturb the peace and tranquillity of the home, or disrupt the voluntary and natural course of disposal of the parents' exchequer'. Worrell v. Worrell, supra at 19, 4 S.E.2d at 346.

The intra family immunity rule applies only to personal injury actions, not to property damage actions. See Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875 (1960). Within the family, the rule encompasses only actions between husband and wife and between parent and child, not actions between two children. Id. And exceptions have been carved out of the rule of immunity in actions by child against parent. An emancipated child can maintain a personal injury action against his parent, See Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170 (1953), and, even though unemancipated, a child can bring a personal injury action against his parent if they stand in the relation of servant and master, see Norfolk Southern R.R. v. Gretakis, supra.

In Worrell v. Worrell, supra, we added another exception to the rule of parental immunity. That case involved an action by an unemancipated child against her father for personal injuries suffered when a bus collided with another motor vehicle. The plaintiff-child was a ticketed passenger in the bus; the defendant-father was the owner of the bus, which was operated as a common carrier.

Speaking of the rule of parental immunity adopted five years earlier, we said in Worrell:

'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.'

Id., 174 Va. at 20, 4 S.E.2d at 346--347.

In view of the changed circumstances in 1939, we held in Worrell that an unemancipated child could maintain an action against her parent for personal injuries incurred while riding as a passenger on a common carrier:

'(W)e think that the statutes of this State providing for compulsory insurance indemnity to passengers of a common carrier for damages resulting from the negligent operation of its vehicles, evidence a purpose and policy to afford protection to all such persons from damages arising in tort from the relationship of passenger and carrier.'

Id. at 28, 4 S.E.2d at 350.

The enactment of Virginia uninsured motorist laws in 1958 has effected a further and major change of circumstances. One of these laws requires an uninsured motor vehicle endorsement to each policy of automobile liability insurance issued or delivered by an insurer licensed in this State covering a motor vehicle principally garaged or used in this State. Va.Code Ann. § 38.1--381 (1970). Under the endorsement, the insurer must agree to pay to the insured all sums that he may be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle or unknown operator of a motor vehicle, within the limits prescribed by statute: $20,000 for bodily injury to or death of any one person and $30,000 for bodily injury to or death of two or more persons in any one accident, and $5,000 for damage to property in any one accident. Va.Code Ann. §§ 38.1--381(b) (1970) and 46.1--1(8) (Supp.1971). ³

A complementary law, first enacted in 1958, encourages the obtaining of insurance coverage by requiring that every person who seeks registration of an 'uninsured motor vehicle' pay a $50 fee to the State Uninsured Motorists Fund. This fee must be paid as a prerequisite to registration of a motor vehicle unless the vehicle has liability insurance coverage up to the limits described in the preceding paragraph or unless the owner (i) qualifies the vehicle as an 'insured motor vehicle' by giving a bond or depositing cash or securities in lieu of insurance or (ii) qualifies as a self-insurer. Va.Code Ann. §§ 46.1--167.2(b) (1967), --395 (1967), --504 (Supp.1971). According to the records of the State Division of Motor Vehicles, only 1.57% Of the motor vehicles registered in Virginia are 'uninsured motor vehicles'. ⁴

The very high incidence of liability insurance covering Virginia-based motor vehicles, together with the mandatory uninsured motorist endorsements to insurance policies, has made our rule of parental immunity anachronistic when applied to automobile accident litigation. In such litigation, the rule can be no longer supported as generally calculated to promote the peace and tranquillity of the home and the advantageous disposal of the parents' exchequer. A rule adopted for the common good now prejudices the great majority.

What the New Jersey Supreme Court said while abrogating interspousal immunity in automobile accident litigation is equally pertinent to this case:

'(R)ealistically, it must be remembered when dealing with the question of conjugal harmony that today virtually every owner of a motor vehicle with a sense of responsibility carries liability insurance coverage. ³ The presence of insurance

militates against the possibility that the interspousal relationship will be disrupted since a recovery will in most cases be paid by the insurance carrier rather than by the defendant spouse. In fact, it is ironic that the presence of insurance has spawned the second rationale, I.e., that of protecting the insurance carriers against fraud and collusion. That rationale relies the possibility that domestic harmony will be disturbed since its very premise is that the interspousal relationship is so harmonious that fraud and collusion will result. Domestic harmony may be more threatened by denying a cause of action than by permitting one where there is insurance coverage. The cost of making the injured spouse whole would necessarily come out of the family coffers, yet a tortfeasor spouse surely anticipates that he will be covered in the event that his negligence causes his spouse injuries. This unexpected drain on the family's financial resources could likely lead to an interference with the normal family life. And it is doubtful that this void in insurance coverage would comport with the reasonable expectations of the insured that this Court has so often sought to protect. * * * In short, the immunity doctrine cannot be fairly sustained on the basis that negligence suits between husbands and wives will disrupt the harmony of the family.

Immer v. Risko, 56 N.J. 482, 489--490, 267 A.2d 481, 484--485 (1970); See France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970) (abrogating parental immunity in automobile accident litigation).

Recognizing that today's changed circumstances vitiate the underlying reason for a rule of parental immunity in automobile accident litigation, we follow the precedent of Worrell v. Worrell, supra, and abrogate that rule. The plaintiff can...