Teramano v. Teramano

BROWN, J.

Neither the allegations of the petition nor the representations of prospective proof contained in the opening statement by plaintiff’s counsel, considered together and in a light most favorable to the plaintiff, make this case one of willful or malicious tort.

“Malicious” means “indulging or exercising malice; harboring ill will or enmity.” Webster’s New International Dictionary, 2 Ed.

If we had such a case before us we might agree with the opinion in the excellently reasoned case styled Dunlap v. Dunlap, 84 N. H. 352, 150 A. 905 , 71 A. L. R. 1055, where, at page 361, the following appears:

“ * * * The father who brutally assaults his son or outrages his daughter, ought not be heard to plead his parenthood and *119 the peace of the home as answers to the action seeking compensation for the wrong.” That conrt went on to say that in the ease of “malicious injuries” abandonment of the parental relationship should be implied.

In searching for a rationale which can be applied in this and other such eases and by which tortious conduct of a parent toward a child can be judged as actionable or nonactionable, we note the reoccurrence of the phrase, “abandonment of the parental relationship,” in most of the well-reasoned eases. If the parental relationship is abandoned, the reason for the immunity ceases to exist. A corollary of this rule is that, where there exists a dual relationship between parent and child such as master and servant, or carrier and passenger, the domestic relationship is merely incidental and becomes so logically irrelevant as to prevent immunity from attaching. See annotation, 19 A. L. R. 2d 423, Infant-Tort Action Against Parent, at page 432.

This was the real basis of the judgment of this court in Signs, a Minor, v Signs, 156 Ohio St. 566 , where it was decided that a parent in his business or vocational capacity is not immune from a personal-tort action by his unemancipated minor child.

Numerous cases gathered in the A. L. R. annotation (19 A. L. R. 2d 423) indicate substantial agreement that no action lies by the unemancipated minor against the parent unless the acts done by the parent are in his vocational capacity or show a malicious intention to injure (rape, murder, punishment inflicted in malo animo).

Cowgill, Admr., v. Boock, Admr., 189 Ore. 282 , 218 P. 2d 445 , 19 A. L. R. 2d 405, an automobile case which supports the position taken by appellee, involved facts so aggravated that the court presumed an intention of the father to injure the child, saying that a person is presumed to intend the ordinary consequences of his voluntary act.

There are no facts in the instant case upon which such a presumption can be based.

We are unable to see where the plaintiff’s physical disability (considering that his car was modified to accommodate it) was of such factual significance as to raise a presump *120 tion that plaintiff’s act in colliding with Ms son was intentional or malicious in the absence of a claim that the injury was in fact intentional or malicious.

The plaintiff incorporated in his opening’ statement the allegations of the third amended petition that the acts of the defendant were willfully done. However, the actual detailed statement of the evidence that plaintiff proposed to offer in support of the allegations of the petition made it apparent that the facts proposed to be proved would not authorize a verdict ; that there would be no evidence of actual intent to injure; and that there would be no evidence upon which a jury would be justified in presuming malicious intent or abandonment of the parental relationship. The trial court correctly directed a verdict for the defendant at this stage of the proceedings. Cornell v. Morrison, 87 Ohio St. 215 .

The judgment of the Court of Appeals is reversed, and the judgment of the Court of Common Pleas is affirmed.

Judgment reversed.

Taut, C. J., Zimmermah, Matthias, 0’Neill and Schheider, JJ., concur.