Vaughan v. Vaughan, 1--574A81

• Decision Date: 18 September 1974
• Docket Number: No. 1--574A81,1--574A81
• Citation: 316 N.E.2d 455,161 Ind.App. 497
• Parties: Douglas Franklin VAUGHAN, a minor by his grandfather and next friend, Ralph Franklin Vaughan, Plaintiff-Appellant, v. James F. VAUGHAN and Linda Joyce Vaughan, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 455

316 N.E.2d 455

161 Ind.App. 497

Douglas Franklin VAUGHAN, a minor by his grandfather and next friend, Ralph Franklin Vaughan, Plaintiff-Appellant, v. James F. VAUGHAN and Linda Joyce Vaughan, Defendants-Appellees.

No. 1--574A81.

Court of Appeals of Indiana, First District.

Sept. 18, 1974.

Rehearing Denied Oct. 21, 1974.

Brent E. Dickson, Lafayette, for plaintiff-appellant.

Aribert L. Young, Stephen L. Brown, John W. Cotner, Indianapolis, for defendants-appellees; Kightlinger, Young, Gray & DeTrude, Indianapolis, of counsel.

ROBERTSON, Presiding Judge.

Four year old Douglas Vaughan received head injuries when struck by a falling tombstone while visiting a cemetery with his parents, the defendant-appellees. The plaintiff-appellant, Douglas' grandfather, filed suit alleging that the parents were negligent in supervising Douglas.

The trial court sustained a motion to dismiss by ruling that the parents were immune from suit and that the complaint failed to state a claim upon which relief could be granted.

The overruled motion to correct errors, whose overall purpose is to seek an abrogation of the doctrine of parental immunity in Indiana, presents three issues. ¹

We affirm the trial court's ruling.

The first of the three major assignments of error alleges that the case of Smith v. Smith (1924), 81 Ind.App. 566, 142 N.E. 128 (the Indiana progenitor of parental immunity) is judicially unsound for the reason it is based upon neither statute or English common law. We are not persuaded that Smith, supra, should be overruled for those reasons. A case, such as Smith, supra, loses none of its efficacy simply because of its judicial creation.

Concomitant with the foregoing is the assertion that Brooks v. Robinson (1972), Ind., 284 N.E.2d 794 (absolute abrogation of interspousal immunity in Indiana) philosophically opens the door to an overturning of Smith v. Smith, supra.

It would be folly not to recognize that immunity, as an avoidance of liability for tortious conduct, has diminished substantially in this jurisdiction over recent years. In addition to Brooks, supra, many of the vestiges of governmental immunity are of no more than historical interest. See: Campbell v. State (1972), Ind., 284 N.E.2d 733 and authorities cited therein.

Brooks, supra, contains two primal reasons for doing away with interspousal immunity.

One was a rejection of the idea that husband and wife litigation founded on negligence, would serve to spawn 'fraud, collusion, and trivial litigation', especially where insurance was involved. Smith, supra, was silent about such reasoning in reaching its decision, although foreign cases cited by the parties have relied, pro and con, on the possibility. It would seem, therefore, that Brooks, supra, is supportive in this regard, in that one of the reasons for maintaining parental immunity has lost its validity in Indiana.

The second reason presented in Brooks, supra, was another rejection of a long standing idea that tort litigation between husband and wife was disruptive of 'peace and harmony of the marriage.' It is here that we feel Brooks, supra, does not support the effort to terminate parental immunity. Assuming for the moment that nuptial peace and harmony no longer requires judicial enforcement, it is quite another thing to reject much of the patent truth in the seemingly ageless observation of Smith, supra:

'From our knowledge of the social life of today, and the tendencies of the unrestrained youth of this generation, there appears to be much reason for the continuance of parental control during the child's minority, and that such control should not be embarrassed by conferring upon the child a right to civil redress against the parent, under the circumstances stated in the question we are now considering. In our opinion, much reason exists for maintaining the sound public policy, which, as stated, underlies the rule which denies such redress.' 81 Ind.App. 569, 570, 142 N.E. 128, 129.

The court does continue that under extreme circumstances the immunity may not exist, however, a failure to supervise, as in this case, would not be sufficient, in our opinion to qualify.

We are of the opinion that Smith v. Smith, supra, remains valid, and binding law.

It is next argued that the doctrine of parental immunity is an unconstitutional denial of equal protection as well as a denial of access to the courts.

The equal...