Tucker v. Tucker
| Decision Date | 14 April 1964 |
| Docket Number | No. 39680,39680 |
| Citation | 395 P.2d 67 |
| Parties | Juell LaWayne TUCKER, a minor, who sues by and through his father and next friend, Juell Elmo Tucker, Plaintiff in Error, v. Ruey TUCKER, Leslie Paul Oltmanns, and John G. Oltmanns, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
A minor child may not recover damages from a parent for personal injuries suffered while unemancipated as a result of said parent's ordinary negligence in the operation of an automobile in which the child was riding as a guest passenger; and the fact that an insurance company has contracted to pay on behalf of the insured parent all sums which the insured parent may become legally obligated to pay does not give rise to a cause of action based on the parent's ordinary negligence where no cause of action exists against the parent if not so insured.
Appeal from the District Court of Logan County; R. L. Hert, Judge.
Action by plaintiff Juell LaWayne Tucker, an unemancipated minor child, suing by and through his father and next friend, for damages for personal injuries, against defendants including his mother, Ruey Tucker. From a judgment sustaining the defendant mother's motion for judgment on the pleadings, plaintiff appeals. Affirmed.
B. H. Carey, Berry & Berry, Oklahoma City, for plaintiff in error.
Charles A. Moser, Guthrie, Edgar Fenton, Oklahoma City, for defendants in error.
The plaintiff in the trial court, Juell LaWayne Tucker, a thirteen year old boy, sustained personal injuries while riding as a guest passenger in an automobile driven by his mother. The plaintiff (by and through his father and next friend) brought this action against his mother, Ruey Tucker, basing his right of recovery upon 'ordinary' negligence. He also sued the owner and driver of the other automobile involved in the accident, but since they are not involved in the issues argued in this appeal, they will be disregarded hereinafter. After the filing of petition, answer, and reply, the defendant mother filed motion for judgment upon the pleadings. This motion was sustained and from judgment dismissing the action as to the mother the plaintiff appeals.
The plaintiff presents the issue to this court, as follows:
'Under the statutes, constitution, and law of Oklahoma, does the minor plaintiff Juell LaWayne Tucker (emancipated at the time the action was brought but unemancipated at the time the cause of action arose), have an enforceable cause of action in tort against the defendant in error parent Ruey Tucker (especially where liability of defendant in error parent is covered by public liability insurance), for injuries and damages inflicted upon the minor boy by negligence of defendant in error parent in the operation of the automobile in which the minor plaintiff in error was riding as guest passenger at the time of the wreck?'
It seems significant that the common law of England reveals no case law wherein the question has been considered. Hewlett v. George (1891), 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, appears to be the first case where the question has been considered in any reported decision in the United States. In the Mississippi case the court said:
'* * * [t]he peace of 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.'
The rule expressed in the Mississippi case appears to have been acceptable to the courts in about thirty five states. 19 A.L.R.2d 423, and Supplement Service. However, it is apparent that in the more recent decisions exceptions to the rule are being carved out. Some of those exceptions are noted in 19 A.L.R.2d 423, supra.
In those cases discussing the reasons for the general rule we find manifested, either expressly or by implication, the concern of the sovereign for the preservation and protection of the family unit in general, and of the parent-child relationship in particular. It is said in 67 C.J.S. Parent and Child, § 10, that 'The state has an interest in the welfare of children and the authority to protect them, which goes beyond the natural right and authority of the parent to the child's custody, since the primary or paramount control and custody of children is with the state, standing in the relation of parens patriae * * *'. It is not too much to say that the concern of the sovereign is not limited to a mere altruistic and solicitous concern for the welfare of those under disability, but is actually, in a sense, a selfish concern, having for its basis its own preservation. Upon the family unit, and more particularly upon the parent-child relationship, the state depends for the care, nurture, education, and moral and spiritual training of children.
From this very real interest in the family and the parent-child relationship, based in part upon the preservation of the state itself, springs the right of the state to interfere with the child's right to sue his parent in tort. In the protection of the child's interest, the state may balance the detriment resulting to the child by the abridgement of his rights against the benefits accruing directly to the child from the continuance of the parent-child relationship unhampered by the possible shattering effect of adversary civil litigation in which damages for personal injury are sought. In the protection of its own interest, the state may balance the detriment resulting to the child against the benefits accruing to the state by reason of the additional safeguards thrown about the parent-child relationship which the state values so much.
In argument plaintiff contends that the State of Oklahoma has already expressed itself in constitutional and statutory provisions, as follows:
'The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong * * *.' Art. 2, Sec. 6, Okla. Const.
'Any person...
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