characterizing that purpose as "futile" because when a child brings suit the family harmony either already has been disturbed beyond repair by the injury-causing conduct or will not be threatened because of liability insurance
How later courts described this case
- characterizing that purpose as "futile" because when a child brings suit the family harmony either already has been disturbed beyond repair by the injury-causing conduct or will not be threatened because of liability insurance
- limiting the doctrine of parent-child immunity and rejecting an argument that the change of rule was a legislative, not judicial, function
- no parental immunity when a child suffers injury due to parental negligence when the parent is acting in his business capacity
- the rule of stare decisis is less compelling in the context of deciding the scope of the common law parental immunity rule
Written by the judges who cited it.
The opinion
Schwellenbach, C. J.,
(dissenting)—This five-year-old boy, through his guardian ad litem,- is suing his father and uncle, as partners, for the modest sum of one hundred thousand dollars. The complaint alleges that the boy’s father operated a tractor and trailer “in a reckless and unlawful manner” and “wantonly, wilfully and without regard for said plaintiff drove said tractor and trailer over the person of plaintiff.” We assume that this action is brought in good faith as an adversary proceeding. The fact that a child would charge that his father did “wantonly, wilfully and without regard” for his five-year-old son, drive a tractor and trailer over the child, would be absolutely contrary to the interest which society has in preserving harmony in domestic relations. Members of the family could not help but take sides in such a proceeding, and some would rise up in righteous indignation against such a father. This is the kind of a situation which the salutary rule in the Roller case would prevent.
*659 On the other hand, if this is not an adversary proceeding in good faith, but rather a so-called “friendly” suit, it would be fraught with danger of fraud and collusion. The complaint alleges that the defendants are common carriers. Under state law, a common carrier is required to either procure and file liability and property damage insurance, or deposit such security as the department shall require. The majority states, with reference to the fraud and collusion problem, that the courts must depend upon the efficacy of the judicial processes to ferret out the meritorious from the fraudulent in particular cases. This may be a theoretical solution, but we know that it just simply cannot be done. The only practical solution is to stop it at its source.
The majority opinion sets a precedent, which will open the flood gates for hundreds of cases of this kind. The result will be either the irreparable disturbance of the family relations in adversary actions brought in good faith, or fraud or collusion in so-called “friendly” suits.
Olson, J., concurs with Schwellenbach, C. J.