Wick v. Wick

• Decision Date: 08 March 1927
• Citation: Wick v. Wick, 192 Wis. 260, 212 N.W. 787 (Wis. 1927)
• Parties: WICK v. WICK.
• Court: Wisconsin Supreme Court

192 Wis. 260

212 N.W. 787

WICK

v.WICK.

Supreme Court of Wisconsin.

March 8, 1927.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by Laurenta Wick, an infant, by Alvina Wick, her guardian ad litem, against Edward Wick. From an order overruling a demurrer to the complaint, defendant appeals. Reversed and remanded, with instructions.--[By Editorial Staff.]

Crownhart, J., dissenting.Whaley, Erikson & Paulsen, of Racine (Hannan, Johnson & Goldschmidt, of Milwaukee, of counsel), for appellant.

A. C. McHenry, of Kenosha (Roy S. Stephenson, of Kenosha, of counsel), for respondent.

OWEN, J.

This is an action brought against the defendant by his infant child, under the age of 14 years, to recover damages for personal injuries sustained by the plaintiff as a result of an automobile accident due to the negligence of the defendant. A demurrer to the complaint was overruled, and the appeal from the order overruling the demurrer presents the question of whether an infant child may maintain an action in tort against its parent.

It is conceded that English decisions afford no precedent for this action. It has often been said that this fact affords strong ground for the belief that no such action was maintainable at common law. Judge Cooley, writing in the 70's, in the second edition of his work on Torts, at page 197, *171, said:

“In principle there seems to be no reason why such an action should not be sustained; but the policy of permitting actions that thus invite the child to contest the parent's authority is so questionable that we may well doubt if the right will ever be sanctioned.”

No case involving this question appears to have come before any appellate court in England or America prior to 1891. In that year the Mississippi court considered the question in Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L. R. A. 682, where it was held that such an action cannot be maintained. That decision has been followed in Tennessee, Washington, Minnesota, North Carolina, Indiana, Rhode Island, and New Jersey. McKelvey v. McKelvey, 111 Tenn. 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130;Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L. R. A. 893, 107 Am. St. Rep. 805, 3 Ann. Cas. 1;Taubert v. Taubert, 103 Minn. 247, 114 N. W. 763;Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135;Smith v. Smith, 81 Ind. App. 566, 142 N. E. 128;Matarese v. Matarese (R. I.) 131 A. 198, 42 A. L. R. 1360;Mannion v. Mannion (N. J. Civ. Ct.) 129 A. 431. The only discordant note in the otherwise judicial harmony upon this question is that of the dissenting opinion of Clark, C. J., who dissents in the case of Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135. The case of Clasen v. Pruhs, 69 Neb. 278, 95 N. W. 640, 5 Ann. Cas. 112, is cited in opposition to this rule. But that was not a case in which the child sued its natural parent. In that case the action was brought against an aunt with whom the child was temporarily living.

The reasons in support of this doctrine may be summarized as follows: The family is a social unit. The members thereof are of the same blood. They are bound together by the strongest natural ties. Naturally, mutual love and affection obtain between the members thereof. There is mutual interest in one another's welfare. The family fireside is a place of repose and happiness. Society takes its caste from the character of its homes. It has a deep interest in maintaining in its integrity and stability the natural conception of the family unit. This imputes authority to the parent and requires obedience of the child. To question the authority of the parent or to encourage the disobedience of the child is to impair the peace and happiness of the family and undermine the wholesome influence of the home. To permit a child to maintain an action in tort against the parent is to introduce discord and contention where the laws of nature have established peace and obedience. Natural instinct condemns such proceedings as most unseemly, and the laws of society will not, to the detriment of society, defeat the benign influence of the laws of nature. That public policy which looks to the public welfare will not encourage discord and rebellion in the family unit, and thus destroy that wholesome influence of the home in moulding the character of our future citizens. Generally speaking, filial affection is ample protection to the child from excessive punishment at the hands of the parent, but where the authority of the parent is abused in the way of excessive or brutal punishment a child will be protected through the criminal laws of the state. True, this does not redress the child for permanent injuries which thus may be inflicted. But it is deemed better public policy that occasional injuries of this kind go unrequited rather than encourage or tolerate proceedings so repugnant to natural sentiments concerningfamily relations. We find ourselves thoroughly in accord with courts holding that an action of this kind cannot be maintained, and indorse the doctrine as one founded in a wholesome public policy.

It is suggested that a contrary conclusion is made necessary in this state by our decision in Wait v. Pierce, 209 N. W. 475. But the decision in that case does not reach the question here under consideration. That case touched only one aspect of the family relation; namely, that of husband and wife. While it may be conceded, and perhaps is to be regretted, that the decision of that case (made necessary by statute) mars somewhat the symmetry and beauty of the family conception, it does not destroy it, and this court is not disposed to impair it further than is necessary to carry out apparent legislative policies.

Neither does this case conflict with nor affect the doctrine of Steber v. Norris, 188 Wis. 366, 206 N. W. 173, 43 A. L. R. 501, where it was held that one standing in loco parentis is liable to the child for excessive punishment. In all such cases the family relation, which is the foundation of the public policy governing the disposition of this case, does not obtain.

Order reversed and cause remanded, with instructions to sustain the demurrer.

CROWNHART, J. (dissenting).

The court holds that a child under custody of the parent may not sue the parent for injuries or wrongs committed by the parent resulting in damages. Article 1, § 9, of the Wisconsin Constitution, provides:

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.”

This provision of the Constitution declares a public policy of the state, and courts are not at liberty to disregard it and substitute their own ideas of what public policy should be. This provision has been held to be mandatory as to property. City of Janesville v. Carpenter, 77 Wis. 288, 301, 46 N. W. 128, 8 L. R. A. 808, 20 Am. St. Rep. 123.

It is conceded that, in principle, there is no reason in the common law why an infant may not sue a parent. The maxim of the common law is ubi jus ibi remedium--there is no wrong without a remedy. No court at common law has ever held that an infant is without a remedy in case of injury to his person through the negligence of the parent or any other person. Indeed, there is no doubt that the infant may sue the parent to preserve its property rights. The court now declares a public policy that forbids an infant from suing for wrongs inflicted upon the infant by the parent. But courts may not make public policy contrary to the organic law of the land. The constitutional provision quoted is as broad and comprehensive as the English language is capable of expressing. It is as inclusive as to injuries or wrongs to the person as it is to property or character.

The opinion of the court is put squarely on the ground of public policy, now for the first time judicially declared. The court sees dangers to the family life, the social unity of the family, and denies the infant the right to sue the parent for tort solely on that ground. But is there any more danger of disrupting the family life by permitting an infant to sue for injury to his person than for injury to his property rights? At common law an infant could sue the parent to maintain his property rights. An infant's personal rights are as sacred as his property rights. Why not the same rule as to injuries to his person as to his property? The Constitution classifies the rights together and on an equality.

Courts may prophesy, but the practice often leads them to embarrassment. In 1875, this court, in an opinion by its then great Chief Justice, denied women the right to practice law, on the ground of public policy. In language which now seems most extravagant it was predicted that permission to practice law would work the gravest injury to women and to their social and moral relations. And yet, at the 1878 session of the...