Appeals, Nos. 1 and 2, May T., 1957, from judgments of Court of Common Pleas of Mifflin County, Aug. T., 1954, No. 88, in case of Karen Ann Parks, a Minor, by Luther F. Parks, her guardian, and Luther F. Parks, in his own right, v. Helen Parks. Judgments affirmed.
Robert Siegel and John Idomir, with them Harry L. Siegel and Siegel & Siegel, for appellants.
Thomas D. Caldwell, with him Carl B. Stoner, Albert Houck and Caldwell, Fox & Stoner, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The principal question raised upon these appeals is whether an unemancipated minor child*fn1 can maintain an action against her parent to recover damages for negligence arising from the parent's operation of a motor vehicle.
Karen Ann Parks, then a child less than six months of age, on June 5, 1952 was a guest passenger in an automobile owned by her father, Luther F. Parks, and
operated by her mother, Helen Parks. An accident occurred*fn2 as the result of which the minor child allegedly received injuries resulting in total and permanent physical and mental disability and requiring that she be placed in a state institution.
A complaint in trespass, containing two counts, was filed: In the first count, the minor child's father, as guardian of the child and on her behalf, claimed compensation for pain and suffering, mental and physical disabilities and loss of future expectable earnings; in the second count, the father, in his own right, claimed compensation for past, present and future medical, hospital, surgical and other expenses and for loss of the child's earnings during her minority. The trespass action was instituted against the mother of the child.
Helen Parks (actually an insurance carrier)*fn3 filed preliminary objections asking judgment in her favor on the grounds that an unemancipated child could not maintain a tort action against her parent and that a husband could not maintain a suit against his wife. The Honorable JOHN J. PENTZ, specially presiding, sustained the preliminary objections and from his orders appeals were taken. After the appeals had been filed, it appearing that the orders appealed from were not final orders, a petition to remand the record was filed so that judgments could be entered in accordance with
the orders of the court below. The record was remanded, judgments were entered and these two appeals ensued.
During the pendency of the proceedings in the court below, Luther F. Parks filed an affidavit setting forth that he carried insurance with the State Automobile Insurance Association of Indianapolis, Indiana, covering liability for bodily injuries in the amount of $10,000 for each person and $20,000 for each accident arising from the operation of his automobile; that this insurance covered Helen Parks in her operation of the automobile; that, as guardian and as father, he agreed to limit the amount of any recovery from the trespass action to $10,000, the face amount of the policy.
Appellant's argument is four-fold: (1) that an unemancipated child should be permitted to maintain a tort action for damages sustained as the result of parental negligence where the damages have been sustained under circumstances not arising from the exercise of parental discipline and control or in the conduct of the domestic establishment; (2) since the minor child in this situation is confined in a state institution where, in all likelihood, it will remain for the balance of its life, the family relationship is dissolved and, therefore, the public policy fostering the maintenance of family unity is inapplicable to bar this action; (3) if it has been the policy of the law in Pennsylvania to forbid a tort action between a child and parent such policy has been changed by several Acts of the General Assembly requiring all operators of motor vehicles to maintain public liability insurance so as to provide protection to all persons injured by the operation of such vehicles; (4) a rule of law forbidding a tort action by an unemancipated minor child against its parent should not apply where liability insurance covers the negligent acts of the parent.
There was no common law rule that a child could not sue its parent: Griggs et al. v. City of Philadelphia et al., 112 Pa. Superior Ct. 50, 55, 170 A. 871; Dunlap v. Dunlap, supra. The rule that a child cannot sue its parent has arisen within the past six decades.*fn4 The vast majority of courts in the United States deny any right to an unemancipated child to maintain a tort action against its parent: Alabama (Owens v. Auto Utual Indemnity Co., 235 Ala. 9, 177 So. 133); Arkansas (Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468); California (Perkins v. Robertson, 140 Cal.App.2d 536, 295 P.2d 972); Connecticut (Shea v. Pettee, 19 Conn.Supp. 125, 110 A.2d 492); Delaware (Strahorn v. Sears, Roebuck & Co., 123 A.2d 107); Georgia (Wright v. Wright, 85 Ga.App. 721, 70 S.E.2d 152); Illinois (Meece v. Holland Furnace Co., 269 Ill.App. 164); Kentucky (Harralson v. Thomas, Admr., 269 S.W.2d 276); Maine (Skillin v. Skillin, 130 Me. 223, 154 A. 570); Maryland (Zaccari v. U.S., 130 F.Supp. 50); Massachusetts (Luster v. Luster, 299 Mass. 480, 13 N.E.2d 438); Michigan (Elias v. Collins, 237 Mich. 175, 211 N.W. 88); Minnesota (London Guarantee and Accident Company v. Smith, 242 Minn. 211, 64 N.W.2d 781); Mississippi (Durham v. Durham, 85 So.2d 807); Missouri (Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29); Montana (Ball v. Ball, 73 Wyo. 29, 269 P.2d 302); New Hampshire (Levesque v. Levesque, 99 N.H. 147, 106 A.2d 563); New Jersey (Reingold v. Reingold, 115 N.J.L. 532, 181 A. 153); New York (Epstein v. Epstein, 283 App.Div. 855, 129 N.Y.S.2d 54); North Carolina (Lewis v. Farm Bureau Mut. Auto Ins. Co.,
N.C. 55, 89 S.E.2d 788); Ohio (Krohngold v. Krohngold, 37 O.L.R. 86, 181 N.E. 910); Oregon (Cowgill v. Boock, 189 Or. 282, 218 P.2d 445); Rhode Island (Matarese v. Matarese, 47 R.I. 131, 131 A. 198); South Carolina (Kelly v. Kelly, 158 S.C. 517, 155 S.E. 888); Tennessee (Graham v. Miller, 182 Tenn. 434, 187 S.W.2d 622); Texas (Aboussie v. Aboussie, 270 S.W.2d 636); Virginia (Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170); West Virginia (Securo v. Securo, 110 W.Va. 1, 156 S.E. 750); Wisconsin (Cronin v. Cronin, 244 Wis. 372, 12 N.W.2d 677); Wyoming (Ball v. Ball, 73 Wyo. 29, 269 P.2d 302). See also: 79 U. of Penn. L. Rev. 80-84; 9 Vand.L.Rev. 832-837 ("No case was found in which the court repudiated the rule of disability altogether and held that children could sue their parents for personal torts as they could strangers"); 19 ALR2d 423-462.
In Pennsylvania our courts have had occasion to consider this question. The first case involving this question was Briggs et al. v. City of Phila. et al., supra. A minor child was injured on a sidewalk in front of a property leased by her father and a trespass action was instituted by her father, on her behalf, and by her parents, in their own right, against the City of Philadelphia which, in turn, joined the father as an additional defendant. It was the City's contention that, since the minor child could not sue her father, and, since the City had the right of indemnity against the father as lessee of the premises upon which the accident occurred, the child could not maintain a suit against the City for that would permit the minor child to do indirectly that which she could not do directly. The Court, recognizing that the minor child "did not and could not obtain in this action a recovery against her father" (p. 55), allowed the minor child to maintain its suit against the City. In the course of its opinion
the Superior Court stated: "There never has been a common law rule that a child could not sue its parent. But, there is substantial decisional authority that it is not permitted, on the theory that it is disruptive of the family peace, destructive of the enforcement of discipline, and, therefore, against public policy. We recognize the wisdom of these rulings as the state and society are vitally in terested in the integrity of, and harmony in, the family ...".
In Duffy v. Duffy, 117 Pa. Superior Ct. 500, 178 A. 165, the converse of the present situation was considered: could an action for personal injuries resulting from negligence be maintained by a parent against an unemancipated child? The Court refused to permit the parent to maintain the action, assigning as its reasons therefor that the allowance of such an action would result in "discord in the home, disorganization of the family relation and the severing of the natural ties of affection" all of which the "state desires to prevent rather than promote" (p. 502).
In Detwiler et al. v. Detwiler, supra, the Superior Court considered whether a parent could maintain a suit against un unemancipated minor for injuries resulting from the minor's tortious conduct and the circumstances under which the minor could be considered emancipated. On the right of the parent to maintain suit the Court said (p. 385): "It is settled beyond question in this State that parents cannot maintain a suit against an unemancipated minor son for injuries resulting from his tortious act. Both parents are barred on broad principles of public policy on the ground that such actions are disruptive of family peace and destructive of filial discipline. The roundness of the doctrine which jealously seeks to maintain peace, harmony and good will in the family relation can no longer be questioned. ..."
The appellants urge that Minkin (et al., Appellant) v. Minkin, 336 Pa. 49, 7 A.2d 461, supports their position. In that case an eight year old child brought suit against his mother to recover damages for the death of his father alleged to have resulted from the mother's negligent operation of an automobile. The court below, being of the opinion that public policy prohibited a suit by a minor against his mother and that the Death Statutes gave no right of action to the minor when one parent survived, entered a judgment for the defendant. This Court, by a 4-3 vote, reversed the court below. The majority of the Court were of the opinion that the Death Statutes, which allowed a minor to share in compensation payable by one whose negligence caused his parent's death, indicated a legislative intent in this type of action to displace the public policy which disallowed generally actions by a minor against a parent. It will be noted that the majority of the court limited its ruling to that type of actions wherein the Death Statutes apply. Mr. Justice (later Chief Justice) HORACE STERN, while concurring in the result, disagreed with the reasoning of the majority (p. 56): "I am of opinion, however, that it is not against public policy for a minor to sue his parent, whatever the form of the action, where the suit is to vindicate property rights and not to recover damages for acts of violence or negligence affecting the person. For example, if a parent were to embezzle his child's money, or physically destroy his property, there is no reason why suit should not be permitted even though the action be in trespass. An action for damages resulting from a parent's death is to recover for a property loss - the deprivation of support that would have been received from the deceased had he lived."*fn5 The dissenting opinion takes
the position that the Death Statutes were passed "... not to overturn, but in subservience to the common law public policy ..." and that only such statutory modification or change of public policy will be recognized as the statute clearly and definitely prescribes. Mr. Justice (later Chief Justice) SCHAFFER, speaking for the minority, said (p. 58): "I would not make the departure from what I believe to be a most sound public policy leading to the maintenance of the family relation. I cannot seal with my approval that which I believe will have a tendency to disrupt it until the legislature, which declares the public policy of the State, shall overturn that which has existed time out of mind by giving to unemancipated minors the right to sue their parents for their alleged negligence".
An analysis of the Minkin decision indicates its purport is to allow a minor to sue its parent only where the right affected is a property right granted by the Death Statute and it does not sanction generally the maintenance of a tort action by an unemancipated minor child against its parent for damages for acts of negligence affecting the person. See also: Silverstein v. Kastner et al., 342 Pa. 207, 20 A.2d 205.
The lower courts in Pennsylvania have all disallowed the maintenance of this type of action: York Trust Co., Guardian v. Blum, Administrator, 22 D. & C. 313; Morris et al. v. McKinley et al., 33 D. & C. 696; Samborski v. Beck et al., 41 D. & C. 387; Dunlevy v. The Butler County National Bank, Admr., et al., 64 D. & C. 535; Frank et al. v. Lebow et al., 84 D. & C. 561; Chesonis v. Chesonis, 4 D. & C.2d 449; Brower et al. v. Webb, Admx., 5 D. & C.2d 193.
We have, however, recognized that the doctrine of intra-family immunity from suit by a member of the family expires upon the death of the person protected and does not extend to a decedent's estate for the reason that death terminates the family relationship and there is no longer a relationship in which the state or public policy has an interest. Kaczorowski v. Kalkosinski, Admr., 321 Pa. 438, 184 A. 663; Davis v. Smith, 126 F.Supp. 497. Thus, although there may be immunity from suit between parent and child during life, the immunity does not extend to the personal representative of a deceased parent or child.
Furthermore, we have recognized the right of a minor child to maintain a tort action against a person who has the right of indemnity from or contribution from the child's parent in the event the child recovers damages in the action: Briggs et al. v. City of Phila. et al., supra. Cf: Koontz v. Messer and Quaker State Oil Refining Company, 320 Pa. 487, 181 A. 792; Fisher v. Diehl, 156 Pa. Superior Ct. 476, 40 A.2d 912.
The rule that an unemancipated child cannot maintain an action in tort for damages against its parent because of any negligent conduct on the part of the parent is sound. It is a rule based on the sound principle of public policy to promote family unity and avoid family discord and disturbance, it prevents possible collusive action between parent and child in situations where the liability of either parent or child is covered by insurance and it is in line with the great weight of judicial authority represented by practically every court of every state in this country.
Appellants next urge that, even if this rule be applied generally, yet this particular situation calls for a qualification of the rule because of the peculiar circumstances involved. The minor child, Karen Parks, is now in a state institution and, therefore, appellants
argue that there is not and cannot be any family relationship which would be disrupted by permitting this suit. Granted that the Complaint avers that "it will be necessary that KAREN ANN PARKS be maintained in an institution for the remainder of her life", that fact alone does not call for a relaxation of the rule. We know of no court which has ever recognized an exception to the rule based on such a fact. Appellants lose sight of the fact that there is always a possibility of a resumption of the family relationship. With death there comes an irreversible end and termination of the family relationship and such relationship lives only in memory; confinement in an institution may be only temporary and it lacks the finality of death in the severance of the family relationship. Family relationship is a two-way affair: parental devotion and care and affection may still flow toward the member of the family confined in the institution and this phase of family relationship may well be severed by litigation between the child and the parent. The grave possibility of collusive action between a representative of the child and the parent is not at all affected by confinement of the child in the institution. We can see no valid reason for a relaxation of the rule in this situation.
Appellants next submit that the rule is no longer sustainable because of certain Acts of the General Assembly requiring insurance coverage for the operation of motor vehicles and further because where there is liability insurance the reason for the rule ceases to exist.
The Motor Vehicle Safety Responsibility Act of June u, 1945, P.L. 1340, as amended, 75 PS § 1277.1 et seq., requires that all persons involved in any accident resulting in bodily injury or death or property damage in excess of $100 are required to file accident reports with the Secretary of Revenue; within sixty (60) days after receipt of a motor vehicle accident report, the
Secretary is required to suspend the license of each operator and all registrations of each owner of a motor vehicle in any manner involved in such accident unless the owner or operator deposits security in the amount determined by the Secretary to cover all claims which might be presented. This provision of the statute is inapplicable if the owner at the time of the accident had in effect an automobile liability policy with respect to the motor vehicle involved in such accident. Appellants argue that this Act is tantamount to a legislative declaration of public policy requiring all motor vehicle owners and operators to carry liability insurance and by this declaration of public policy changed the previous law (under the theory of the Minkin case, supra) so as to permit minor children to sue their parents. This argument loses sight of the rationale of the majority in the Minkin case, i.e. that by the Death Statutes the minor was expressly given a property right and therefore, impliedly at least, the minor could enforce that right even as against a parent, thus effecting a change in the previous law on the subject. The instant statute simply represents an attempt by the use of a sanction - to-wit, the suspense of the right to drive and registration of the vehicle - to secure for those injured in an action by an uninsured driver some redress after the happening of the accident. This statute does not require compulsory insurance on the part of the operator or owner of a motor vehicle; it is a legislative attempt to provide financial responsibility after an accident has happened so that the person injured may secure from a wrongdoer redress for his injuries. Appellants forget that even if the operator or owner, in compliance with the statute, posts security, it is still incumbent upon the person injured to establish that the operator or owner of the motor vehicle by which he was injured was liable for the happening of the accident
before the security can be utilized for the payment of the damages incurred. This statute deals with the collectibility of damages recovered, not with liability for the happening of the accident; it is still necessary to prove liability before redress can be had. It would be farfetched indeed to hold that by this statute the legislature intended any change in the rule of immunity from suit of a parent or a child.
Even though it be established - as in the instant case by appellants' affidavit - that the parent is covered by liability insurance, such fact should not require a relaxation of the rule. The fact that the particular parent who is the defendant is protected by insurance against legal liability should not enable the minor child to maintain the action if he could not otherwise have maintained it: Lund v. Olson, 183 Minn. 515, 237 N.W. 188; Norfolk S.R. Co. v. Gretakis, 162 Va. 597, 174 S.E. 841; Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708; Rambo v. Rambo, supra; Elias v. Collins, supra; Perkins v. Robertson, supra; Zaccari v. U.S., supra; Levesque v. Levesque, supra; Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743; Brumfield v. Brumfield, supra.
In Duffy v. Duffy, supra, the Superior Court refused to adopt an identical argument in the following language (p. 503): "Without a legislative mandate, we see no justification for making such a discrimination, thus segregating automobile cases from other actions by a parent growing out of the negligent conduct of an unemancipated minor, because in many automobile cases insurance might be carried that would give protection. That distinction has never been recognized in any of the decisions called to our attention, and we refuse, as that court did, to adopt such a theory." In Silverstein v. Kastner, supra, this Court adopted the language in the Duffy case and stated (p. 208), "The
fact, therefore, that there was insurance in the instant case was of no moment".
The presence or absence of insurance should be of no importance in determining the general rule of immunity. The fact that a parent carries accident liability insurance does not create as against the parent any liability which would not exist were he insured. That a parent is covered by insurance is irrelevant since liability must exist before such insurance becomes applicable and a policy of insurance should not and cannot establish liability. That there was insurance in the instant case and that the father of the child limited recovery to the amount of the policy is not a valid reason for removing from the child its disability to maintain this action.
Automobile liability insurance imposes upon the insurer the duty to pay all sums for which the insured shall become obligated by reason of any liability imposed by law upon the insured. Absent legal liability on the insured's part, under the insurance contract no liability is imposed upon the insurer: Kesman et al. v. Fallowfield Twp. School District, 345 Pa. 457, 29 A.2d 17. When the instant contract of insurance was issued the law imposed no liability upon the insured father nor mother for their negligent conduct resulting in damages to their child. The parties to the contract never contemplated any such coverage. Appellants would have the existence of insurance create a liability upon insured's part where none previously existed. To create such a post-contractual liability would be to vary the contract and thus "change the rules while the game is in progress". We refuse to impose a liability where none existed when the contract of insurance was issued.
While the existence of insurance coverage would relieve the possibility that the parent might suffer pecuniary
loss and to this extent lessen the possibility of family discord, yet at the same time the insurance coverage would impose upon the insured parent the duty of cooperating with the insurer. How could this clause be faithfully complied with without disturbing the family relationship which the policy of the law seeks to preserve? How could a parent conscientiously comply with the cooperation clause of the insurance policy and at the same time be mindful of his natural love and affection for the child, particularly when, as in the instant case, it is the parent who has become obligated for the medical, hospital and surgical expenses of the child? The self interest of the parent and his natural love and affection for the child would render nigh impossible any degree of cooperation with the insurer. The possibility of collusive action in such a situation in itself is sound reason for not rejecting the general rule where liability insurance is present.
Another and serious question confronts us in the present situation. Not only do we have a child, through its guardian, the father, maintaining a suit against the mother for the recovery of damages which belong to the child, but we have the husband-father maintaining a suit, in his own right, against the wife-mother for the recovery of damages ...