Wilkins v. Kane, L--12367
| Decision Date | 16 May 1962 |
| Docket Number | No. L--12367,L--12367 |
| Parties | Christine WILKINS, Individually, and as Guardian ad Litem of Katherine Marsh, an Infant, and Claude Wilkins, Plaintiffs, v. Joseph J. KANE, Defendant. |
| Court | New Jersey Superior Court |
Francis J. O'Dea, Rutherford, appeared for plaintiffs (Gaffey & Webb, Newark, attorneys).
Edward R. Gaverny, New Brunswick, appeared for defendant (Lynch & Gavarny, attorneys).
HALPERN, A.J.S.C.
The undisputed facts indicate that the six-year-old infant plaintiff, Katherine Marsh, was injured while riding as a passenger in her grandmother's car when it collided with a car owned and operated by the defendant, Joseph J. Kane. At the time of the accident Katherine had been abandoned by her parents and she was living at the home of her grandparents, the plaintiffs, Christine and Claude Wilkins, and being supported by them. No adoption proceedings, however, had ever been instituted by the grandparents.
The infant, by her grandmother as guardian Ad litem, and her grandparents individually, instituted suit against the defendant Kane charging him with responsibility for the accident. Kane filed an answer denying liability and in his answer cross-claimed against the grandmother, Christine Wilkins, seeking contribution under the Joint Tortfeasors Act, N.J.S. 2A:53A--1, N.J.S.A. The present motion is made by the grandmother to strike the cross-claim for contribution based upon the doctrine in Hastings v. Hastings, 33 N.J. 247, 163 A.2d 147 (1960).
The issue presented is whether an unemancipated infant, who lives with her grandparents, may sue her grandmother for injuries resulting from the grandmother's negligence, where the grandparents are the sole support of the abandoned infant. If such suit is maintainable by the infant, then the cross-claim by the defendant is proper; if not, then the motion to strike the cross-claim should be granted. See Chosney v. Konkus, 64 N.J.Super. 328, 165 A.2d 870 (Law Div.1960).
The philosophy of the majority in Hastings was to deny to an unemancipated infant, living at home, the right to sue its natural parents for personal injuries arising out of negligence, because of the principles of public policy involved. The court was of the opinion that to permit it would have a tendency to break up the family unity, it would promote family discord, and might possibly result in collusive actions between parents and children. Unfortunately, in the instant case, the...
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...v. Underwood, 101 N.J.Super. 448, 244 A.2d 538 (Law Div.1968), or where grandparents had acted in loco parentis, Wilkins v. Kane, 74 N.J.Super. 414, 181 A.2d 417 (Law Div.1962). See France, 56 N.J. at 504, 239 A.2d We further recognized in France that the reasons typically given for retaini......
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...where the grandparents were the sole support of the abandoned infant and where they stood in Loco parentis. Wilkins v. Kane, 74 N.J.Super. 414, 181 A.2d 417 (Law Div. 1962). And there is no doubt that an emanicipated child can sue his parents for a negligent wrong. Finally, our courts have ......
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