Cowgill, Adm'r v. Boock, Adm'r

ROSSMAN, J.,

SPECIALLY CONCURRING.

The law is a human institution fashioned, not by some superior being, but by the mind of man, and intended to serve human needs. Such being its nature, it can always be changed in order to adapt it to the ■service of justice. The development of the common law is the story of the constant efforts of the courts to find principles applicable to specific cases, only to discover later that the principle applied yesterday in a case, if applied today in the instant one, will produce injustice. Much of the development of the common law has consisted of first stating general principles and then, in later cases, of restating the principle or carving out of it exceptions to fit the needs of new cases. When a court states a principle, it has in mind a specific case and is unable to foresee clearly what lies ahead. If a general principle is used indiscriminately in situations that later develop, it may fail to yield justice. Society is not static and conduct is in a continuous state of flux. Mankind is constantly altering the social value it places upon different phases of life. The law must keep pace with life and develop with the expanding enlightenment of the age.

The sweep of the rule announced in Hewellett v. George, 68 Miss. 703 , 9 So. 885 , 13 L. R. A. 682, is all-inclusive. But the present case is by no means a facsimile of that one.’ If the rule employed in that *303 ease must be applied in this one, the result will be an absurdity, for if recovery is denied under a belief that we will thereby preserve the tranquillity of the home and the authority of the father over his son, we are met with the solemn fact that both father and son are dead. The father’s last act of control over his son took the life of both. We cannot restore them to life so that the father can again exercise dominion over his son. A denial of liability in this case will not preserve the peace of the home and the authority of a father. It will render obeisance to the general rule, it is true, but any rule which demands the sacrifice of justice in order that it may hold sway as a universal rule is unworthy of a place in our law.

Possibly it is difficult to state the basic rule which the Mississippi court had in mind in' such a manner that recovery will be denied in all instances in which damages should not be allowed, and jet grant recovery in the occasional case, like the present, in which damages should be granted. But the niere fact that it is hard in any case to formulate a rule applicable to all future cases constitutes no justification for doing an injustice to a litigant who has a righteous one. The dissenting opinions manifest fear of future consequences if the rule of non-liability is deprived of its status as a universal one. They foresee confusion. One is reminded of the ejaculation uttered by the eighteenth century jurist when it was proposed that a litigant be permitted to amend his pleadings. That early jurist exclaimed, “Think of the state of the record.’.’ Notwithstanding his fears, provision was made for amendments to pleadings, and no one would think today of retreating to the former practice. Allowing recovery in the instant case will cause no confusion.

*304 The opinion written by Mr. Justice Belt recognizes the following exception, to the general rule: If the death of a son results from a willful tort committed by the father, recovery can be had. It does not hold that the tort must have been a malicious one. The exception is criticized on the ground that the father, in the present case, did not intend to -kill his son. Of course, he did not intend to do so, but the rule imputes to the father the natural consequences of his willful tort. Suppose, for example, that before the father went upon the fateful trip he had willfully stripped his car of its brakes and thereby had put it beyond his power to stop his car, all would agree that he should be charged with the natural results of his act.

It is safe to assume that when the Mississippi court held, in the Hewellett decision, that the daughter could not sue her.mother [both were living], it did not visualize this case. In all likelihood, the justices who wrote the Hewellett decision would have been more circumspect in the use of words had they foreseen that their decision would be cited sixty years later by an appellant as authority for a holding that when a father, through the excessive use of liquor, destroys not only his son’s life-but his own, no action for redress can be maintained.

When the rule of non-parental liability is applied in instances of injury inflicted while the parent was discharging his duties as parent, the result of no liability is just and promotes a wholesome purpose. Thus, the parent should not be-held liable for chastisement which he administered as head of the household; and a system of jurisprudence which recognizes congressional immunity from slander should experience no difficulty in recognizing that a child should not be permitted to hold *305 a mother , or a father accountable in a slander action for words spoken by either in administering a rebuke. Likewise, the father should not be suable by his child for an injury sustained through the disrepair of the home, even though the- father was negligent. Since parenthood places grave responsibilities upon father and mother, and since society must entrust much to the parents ’ discretion, it is not difficult to justify a parental mantle of immunity. Undoubtedly wrongs will occasionally be done under the mantle, but if the latter is not recognized and if every child can sue his parents for real or fancied wrongs, the intolerable situation resulting therefrom would be far harder to bear than the occasional wrong hidden by the mantle. The ultimate result to the child and to society resulting from non-liability is good.

Immunity is accorded the parent, not because he is a parent, but because, as a parent, he pursues a course within his household which society exacts of him and which is beneficial to the state. Society expects parents to keep the home in order, to preserve within it domestic tranquillity, to see to it that the children go to school and that they deport themselves properly in the neighborhood. The parental non-liability is not granted as a reward, but as a means of enabling the parents to discharge the duties which society exacts.

No immunity from liability is universal and independent of attendant circumstances. For instance, the man on the bench is not liable for his judicial conduct even if the latter is erroneously performed, but when he casts aside his judicial robe’ he likewise casts aside his immunity from liability. The doctrine of ultra vires is another example of the manner in which immunity operates as a shield only so long as the function is per *306 formed which the law contemplated when the shield was given. Accordingly, it wonld be remarkable if the mantle of parental non-liability shields a father while dealing with his son in a non-parental transaction, or while committing an act which would not be tolerated even if committed by a stranger.

The proposition just stated has won recognition in cases involving liability in the parent-child relationship. For instance, in the carefully reasoned decision entitled Dunlap v. Dunlap, 84 N. H. 352, 150 Atl. 905 , 71 A. L. R. 1055, the court said:

“A father who brutally assaults his son or outrages his daughter ought not be heard to plead his parenthood and the peace of the home as answers to an action seeking compensation for the wrong. The relation is rightly fortified by certain rules. Outside that relation the rules are inapplicable. * * * The law does not make fetishes of ideas. It limits them to their proper spheres. ’ ’

In that case, an unemancipated son, who became his father’s employee during the school vacation period, was injured while at work. The court held that the son could maintain his tort action. The decision said:

“The present suit is not for an intentional wrong, but for a negligent one, growing out of the relation of master and servant. As to this employment the father had intentionally surrendered his parental control.”

It held that he also surrendered his parental immunity from suit. Another which adopted that line of reasoning is Wood v. Wood, 135 Conn. 280 , 63 Atl. 2d 586. In 39 Am. Jur., Parent and Child, § 90, p. 735, in referring to the doctrine of non-liability, it is said:

“In any event, it is inapplicable where there is a master and servant relation between the parent and child.”

*307 Further, when a father lays aside his parental role and enters into business transactions with his child, the latter can sue him. In that connection, it is stated in 39 Am. Jur., Parent and Child, § 88, p. 734:

‘ ‘ Thus there is no question but that a suit may be maintained between a parent and child with respect to contracts, wills, or other property rights.”

The deplorable and much-criticized result which was reached in Roller v. Roller, 37 Wash. 242 , 79 P. 788 , 68 L. R. A. 893, 3 Ann. Cas. 1, 107 Am. St. Rep. 805 , would have been avoided had the court recognized that the mantle of non-liability is available only when the father injures his child while discharging a parental duty, and is not available when he casts aside his role as parent. In that case, the father raped his minor daughter.

In the instance before us, the lamentable death occurred after the father had indulged excessively in strong liquor. When he arrived at the tavern of a friend, unsteady upon his feet and experiencing difficulty with his tongue, he applied for more beverages which he wished to quaff. His friend called his attention to his drunken condition and refused to supply the beverages which he sought to purchase. Thereupon the father resorted to a supply of whisky which he carried in his ear, and presently ordered his son to get into the car.

The question that confronts us is whether the father was acting in his capacity as parent when he took the course which brought death to himself, to his son and to his brother. Before solving the problem, let us suppose that a father, while drunk, brutally beats ■his daughter, or, seizing a gun, shoots her. Should we say that in acting in such a drunken manner he was *308 exercising a parental function, or would it not be more in keeping with the enlightened views of the day to declare that his drunken action was outside the scope of his parental prerogatives. To hold that such drunken action is within the scope of parental authority would outlaw the child and close all courtrooms to her. Surely public policy does not demand such a holding. To the contrary, it requires a holding that an injury inflicted upon an unemancipated child by the father while in a drunken condition is not within the scope of parental authority. The conduct of the father while at the tavern and his subsequent drunken driving were not parental in nature. They were, in truth, violations of the father’s duty to his son. The mantle of parental non-liability was never intended for a ease such as this.

I concur in Mr. Justice Belt’s opinion and amplify my reasons in the above manner.