Emery v. Emery

of action against defendants, assuming that the latter are not immune from suit because of their family relationship to these plaintiffs. , Since the accident occurred in the State of Idaho, the law of that state is determinative of the answer to this question. (Grant v. McAuliffe, 41 Cal.2d 859 , 862 [ 264 P.2d 944 ]; Loranger v. Nadeau, 215 Cal. 362 , 366-367 [ 10 P.2d 63 , 84 A.L.R. 1264 ]. The applicable Idaho statute provides, “No person transported by the owner or operator of a motor vehicle as his guest without paying for such transportation shall have a cause of action for damages against such owner or operator for injuries, death or loss, in ease of accident, unless such accident shall have been intentional

and the right to sue.” In a somewhat analogous situation, many courts have held in tort actions between husbands and wives that questions of capacity to sue and be sued should be governed by the law of the forum. (See Ford, Interspousal Liability for Automobile Accidents in the Conflict of Laws, 15 U.Pitts.L.Eev. 397, 419, and cases cited.) It should be noted, however, that in many of these cases, as in Fowlkes v. Bay-O-Vac, supra, the state of the forum was also the state of the domicile. Although tort actions between members of the same family will ordinarily be brought in the state of .the family domicile, the courts of another state will in some cases be a more convenient forum, and thus the question arises whether the choice of law rule should be expressed in terms of the law of the forum or that of the domicile. We think that disabilities to sue and immunities from'suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile. That state has the primary responsibility for establishing and regulating the incidents of the family relationship and it is the only state in which the parties can, by participation in the legislative processes, effect a change in those incidents. Moreover, it is undesirable that the rights, duties, disabilities, and immunities conferred or imposed by the family relationship should constantly change as members of the family cross state boundaries during temporary absences from their home. Since all of the parties to the present case are apparently domiciliaries of California, we must look to the law of this state to determine. whether, any disabilities or immunities exist.

Defendants contend that Trudell v. Leatherby, 212 Cal. 678 [ 300 P. 7 ], and Myers v. Tranquillity Irr. Dist., 26 Cal. App.2d 385 [ 79 P.2d 419 ], are controlling on the question of Duel’s immunity to suit by his unemancipated minor daughters, Barbara and Joyce. In Trudell v. Leatherby it was stated that a “ ‘minor child has no right of action against a parent for the tort of the latter’ ” ( 212 Cal. at 680 ), but plaintiff points out that both Trudell v. Leatherby and Myers v. Tranquillity Irr. Dist. involved actions for injuries caused by the parent’s negligence, whereas in the present case Barbara and Joyce state causes of action for wilful misconduct. To sustain their contention, plaintiffs cite a number of cases from other jurisdictions holding that, although a parent is not responsible to his minor child for negligence, he is responsible for wilful and malicious torts. (Wright v. Wright,

85 Ga.App. 721 [ 70 S.E.2d 152 ,155-156] [wilful misconduct] ; Treschman v. Treschman, 28 Ind.App. 206 , 210-212 [ 61 N.E. 961 ] [assault and battery]; Siembab v. Siembab. 202 Misc. 1053 , 1056 [ 112 N.Y.S.2d 82 ] [wilful misconduct]; Meyer v. Ritterbush, 196 Misc. 551 , 554 [ 92 N.Y.S.2d 595 ] [wilful misconduct], aff’d 276 App.Div. 972 [ 94 N.Y.S.2d 620 ] ; Mahnke v. Moore, 197 Md. 61 , 68 [ 77 A.2d 923 ] [intentional mental cruelty] ; Dix v. Martin, 171 Mo.App. 266 , 274 [ 157 S.W. 133 ] [assault]; Cowgill v. Boock, 189 Ore. 282 , 293-301 [ 218 P.2d 445 ] [wilful misconduct] ; see also Cannon v. Cannon, 287 N.Y. 425 , 429 [ 40 N.E.2d 236 ] ; Baker v. Baker, 364 Mo. 453 [ 263 S.W.2d 29 , 30-31] ; Levesque v. Levesque, 99 N.H. 147 [ 106 A.2d 563 , 564] ; Matarese v. Matarese, 47 R.I. 131 , 134 [131 A.198, 42 A.L.R. 1360 ]; Aboussie v. Aboussie, (Tex.Civ.App.) 270 S.W.2d 636 , 639; Brumfield v. Brumfield, 194 Va. 577 , 583 [ 74 S.E. 170 ]; Securo v. Securo, 110 W.Va. 1 , 2 [ 156 S.E. 750 ].)

Although there are no California cases involving an action by a minor child against its parent for a wilful or malicious tort, the modern trend of decisions (see anno. 19 A.L.R.2d 423 , 427 and cases cited; Prosser on Torts [2d ed.] 675-677; Davis v. Smith (E.D.Pa.), 126 F.Supp. 497 , 502-506 and cases cited; Dunlap v. Dunlap, 84 N.H. 352 [ 150 A. 905 ] ; Borst v. Borst, 41 Wn.2d 642 , 647-654 [ 251 P.2d 149 ] and cases cited; 29 N.Y.U.L.Rev. 1302 ; 39 Va.L.Rev. 389 ) is to mitigate the rule of absolute immunity established by the early cases of Hewlett v. George, 68 Miss. 703 [ 9 So. 885 , 13 L.R.A. 682 ] [false imprisonment of minor child in an insane asylum], and Roller v. Roller, 37 Wash. 242 [ 79 P. 788 , 107 Am.St.Rep. 805 , 3 Ann.Cas. 1, 68 L.R.A. 893 ] [rape of a minor child by her father]. The rationale of the eases refusing to extend immunity to the parent for wilful or malicious torts against his minor children is that the lack of such immunity does not conflict with or inhibit reasonable parental discipline. (See Cowgill v. Boock, supra, 189 Ore. 282 , 293, 297-298; Borst v. Borst, supra, 41 Wn.2d 642 , 656; McCurdy, “Torts Between Persons in Domestic Relations,” 43 Harv.L.Rev. 1030 , 1079; 64 Harv.L.Rev. 1208 .) Preservation of the parent’s right to discipline his minor children has been the basic policy behind the rule of parental immunity from tort liability. / (See McCurdy, supra, 43 Harv.L.Rev. 1030 , 1076-1077.)/ Since the law imposes on the parent a duty to rear and discipline his child and confers the right to- prescribe a course of reason

able conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental discipline.

No sound public policy would be subserved by extending -it beyond those limits. While it may seem repugnant to allow a minor to sue his parent, we think it more repugnant to leave a minor child without redress for the damage he has suffered by reason of his parent’s wilful or malicious misconduct. A child, like every other individual, has a right to freedom from such injury. Accordingly, we conclude that an unemancipated minor may sue his parent for a wilful or malicious tort, and thus that Buel is not immune from suit for the causes of action pleaded by Barbara and Joyce in the complaint in the present action.

In support of their contention that James is not immune from suit, plaintiffs Barbara and Joyce cite Rozell v. Rozell, 281 N.Y. 106 [ 22 N.E.2d 254 , 123 A.L.R 1015 ], in which the New York Court of Appeals held that an action was maintainable by a 12-year-old boy against his 16-year-old sister for injuries sustained while riding in an automobile negligently operated by her.(See also Munsert v. Farmers Mut. Auto. Ins. Co., 229 Wis. 581 , 586 [ 281 N.W. 671 ] ; Beilke v. Knaack, 207 Wis. 490 , 493-494 [ 242 N.W. 176 ].) Although defendants concede that the few reported eases involving this question all support plaintiffs’ contention that actions between minor brothers and sisters are maintainable, they nevertheless argue that those cases are unsound and should not be followed by this court. They contend that to allow tort actions to be maintained between minor brothers and sisters will (1) disrupt the family harmony, (2) encourage fraud and collusion, (3) impair the parents’ exercise of their disciplinary functions, (4) result in an uneven distribution of the family resources, and (5) encourage useless litigation since there is a possibility that the minor defendant will live to inherit the money recovered from him by the minor plaintiff. These arguments are not persuasive. Exceptions to the general principle of liability (Civ. Code, § 3523 [“For every wrong there is a remedy.”]) of minors for their torts/Civ. Code, §41; Ellis v. D’Angelo, 116 Cal.App.2d 310 , 313-315 [ 253 P.2d 675 ])are not to be lightly created, and we decline to create such an exception on the basis of the speculative assumption that to do so would preserve family harmony. An uncompensated tort is no

more apt to promote or preserve peace in the family than is an action between minor brother and sister to recover damages for that tort. Furthermore, the relationship between brother and sister is not complicated by reciprocal rights and obligations of the kind that characterize the relationships of husband and wife and parent and child and that lend some support to the immunities from tort liability that have been recognized in such cases.

Defendants’ second argument, that tort actions between minor brothers and sisters will encourage fraud and collusion, is based on assumptions opposite from those on which their first argument is based. This argument assumes that the action is not in reality directed against the minor brother or sister of the plaintiff, but is in fact directed at his liability insurer. If this assumption is correct, maintenance of such a tort action would not disturb the family peace and harmony; on the contrary, the “domestic harmony will not be disrupted so much by allowing the action as by denying it.” .(Prosser on Torts [2d ed.] 677.) Moreover, although defendants’ statement that the existence of insurance, of which there is no evidence in the present case, “gives no cause of action where one did not exist before” is correct, by the same token the mere possibility of fraud or collusion because of the possible existence of liability insurance does not warrant immunity from liability where .it would otherwise exist. The interest of the child in freedom from personal injury caused by the tortious conduct of others is sufficient to outweigh any danger of fraud or collusion. As the Supreme Court of Washington said in reply to the same argument in a case involving an analogous situaation [action by a child to recover for injuries caused by its parent’s negligent operation of a truck for business purposes], “The courts may and should take cognizance of fraud and collusion when found to exist in a particular case. However, the fact that there may be greater opportunity for fraud or collusion in one class of eases than another does not warrant courts of law in closing the door to all cases of that class. Courts must depend upon the efficacy of the judicial processes to ferret out the meritorious from the fraudulent in particular cases. Rozell v. Rozell, supra. If those processes prove inadequate, the problem becomes one for the Legislature., See Signs v. Signs, supra [ 156 Ohio St. 566 ( 103 N.E.2d 743 )]. Courts will not immunize tortfeasors from liability in a whole class of eases because

of the possibility of fraud, but will depend upon the Legislature to deal with the problem as a question of public policy.” /(Borst v. Borst, supra, 41 Wn.2d 642 , 653-654.) In California, the Legislature has dealt with the problem. Our guest statute (Veh. Code, § 403), which was enacted to protect owners and operators of vehicles from fraudulent claims of those riding as guests/"Weber v. Pinyan, 9 Cal.2d 226 , 229 [ 70 P.2d 183 , 112 A.L.R. 407 ]); grants the owner and operator of a vehicle absolute immunity from liability for injuries proximately resulting from negligence in the operation of the vehicle. Since the Legislature obviously considered that the immunity .thus granted was sufficient to protect the owner and operator from fraudulent claims, we think it improper for this court to extend that immunity further in a particular class of cases to claims for injuries proximately resulting from the operator’s wilful misconduct or intoxication.

Although defendants contend that to allow tort actions between minor brothers and sisters will impair their parents’ exercise of their disciplinary functions, they fail to make clear how that impairment will take place and we see no substance in the contention. Similarly, the contention that to allow a sister to recover a judgment against her brother will result in an uneven distribution of the family resources is without merit. A parent is not ordinarily vicariously liable for the torts of his minor child (Weber v. Pinyan, 9 Cal.2d 226 , 235 [ 70 P,2d 183 , 112 A.L.R. 407 ] ;. Martin v. Barrett, 120 Cal.App.2d 625 , 628 [ 261 P.2d 551 ] ; Ellis v. D’Angelo, supra, 116 Cal.App.2d 310 , 317). and a minor child’s property is his own and not that of his parents. (Estate of Yano, 188 Cal. 645 , 649 [ 206 P. 995 ] ; Civ. Code, §202.) Finally, we think that the possibility of a minor defendant's succession by intestacy to the damages recovered from him by a minor brother or sister is too remote and speculative a basis on which to fopnd the rule of immunity for which defendant contends. (See McCurdy, supra, 43 Harv.L.Rev. 1030 , 1073.) Accordingly, we conclude that Barbara and Joyce may maintain the present action against their minor brother, James.

In the third cause of action pleaded in the complaint Esther, the mother of the minor plaintiffs, attempts to recover for the expenses incurred in caring for and, treating the injuries received by the minor plaintiffs. Insofar as that cause of action is pleaded against herXhusband, Buel,

the pleading is defective since a cause of action for damages suffered by the parents because of injury to their minor child is community property (Flores v. Brown, 39 Cal.2d 622 , 630 [ 248 P.2d 922 ]) and Buel’s alleged wilful misconduct is imputable to Esther. (Iiid.) -Insofar as Esther attempts to state a cause of action against her minor son, James, the pleading is defective since it fails to comply with the requirements of section 376 of the Code of Civil Procedure^ A/ ■■'?< U\ f \ fr. A v'" <•-!1 j- * • . -

The judgment is Reversed.

Gibson, C. J., Shenk, J., Carter, J., and Spence, J., concurred.