Trevarton v. Trevarton
| Decision Date | 04 February 1963 |
| Docket Number | No. 20089,20089 |
| Citation | 378 P.2d 640,151 Colo. 418 |
| Parties | David Leroy TREVARTON, by his Mother and Next Friend, Betty Hazel, Plaintiff in Error, v. Lloyd TREVARTON, Defendant in Error. |
| Court | Colorado Supreme Court |
Spiro A. Fotopulos, Denver, for plaintiff in error.
Wood, Ris & Hames, Stephen E. Connor, Denver, for defendant in error.
The parties are here in the same order they appeared in the trial court.
The sole question presented for review is whether an unemancipated minor son can recover damages from his father for personal injuries suffered as a result of the alleged negligence of the father, who, it is charged, was at the time of the injuries:
'* * * cutting, felling and loading trees in Boulder County, Colorado.
'That on or about July 6, 1959, * * *, the defendant, Lloyd Traverton carelessly, negligently and recklessly allowed a felled tree, to be dragged across, upon and against the plaintiff, * * * who was sleeping near the felled tree during loading and cutting of the trees.'
The trial court concluded as a matter of law there could be no recovery under the facts set forth above, the father being immune from suit by a minor child, and granted the motion of the father for summary judgment.
Plaintiff is here by writ of error seeking reversal.
The question presented is of first impression in this court, and no judicial precedents exist in this state for resolving the problem, nor do we have a statute granting or denying relief in such circumstances.
Many decisions of sister states deal not only with the precise problem before us, but many variations thereof. The results reached by these authorities and the reasons assigned are at wide variance.
In 67 C.J.S. Parent and Child § 61b(2), p. 787, we find the following rule:
'Generally speaking, an unemancipated minor child has no right of action against a parent or a person standing in loco parentis for the tort of such parent or person unless a right of action is authorized by statute, and the child may not, even after reaching majority, maintain an action for a tort committed by the parent while the child was an unemancipated minor. * * *'
The three earliest decisions of appellate courts in this country dealt with injuries intentionally inflicted on the child by the parent, and each held that there could be no recovery. In these cases no distinction is made between ordinary negligence and intentional wrong, and the courts adopted a rule granting to parents absolute immunity from liability to their minor unemancipated children.
The three cases referred to are: Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682 (1891), a case in which the father was charged with maliciously causing his minor daughter to be imprisoned in an insane asylum; McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991 (1903), in which there were intentional physical injuries, and Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893 (1905), where it was held that a minor unemancipated daughter could not maintain an action against her father for rape.
The principal reason urged for the rule of absolute immunity is stated in Hewlett v. George, supra, as follows:
'* * * The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. * * *'
More recent decisions involving intentional torts generally reject the holdings of these cases and abound in exceptions and variations of the rule of 'absolute immunity.'
To justify any rule of immunity courts have been wont to grasp desperately for reasons, but many, if not all, fail to withstand attack when subjected to the light of logic and reason.
Reasons advanced for the rule are dealt with in a painstaking and exhaustive opinion, authored by Justice Hamley of the Supreme Court of Washington, in the case of Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952). He there enumerates the following reasons, advanced by various courts to support the rule:
(1) Public interest in maintaining family harmony and tranquility.
(2) Maintenance of parental authority and discipline.
(3) Prevention of fraud and collusion.
(4) Preservation of equal distribution of the family exchequer.
(5) Avoidance of useless litigation in that the parent may, in the event of the death of the child, inherit any money which the child may have recovered from the parent.
(6) Prevention of assertion of stale claims of minors on their reaching majority.
He then deals extensively with each reason and convincingly demonstrates that:
'* * * none of the arguments [reasons] which have been discussed above provides a logical and just basis for an absolute rule of immunity applicable to all actions arising in tort for the recovery of personal injury damages.'
Many courts in dealing with the rights of minors to recover from parents for torts, distinguish between claims arising out of the negligence of the parent in the discharge of parental duties and the...
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