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

LUSK, C. J.,

dissenting.

The rule that an unemancipated minor child may not maintain an action for a personal tort against his parent has, since it was first announced in 1891 by the Mississippi Court in Hewellett v. George, 68 Miss. 703 , 9 So. 885 , 13 L. R. A. 682, received the judicial approval of nearly every court which has had occasion to pass on the question. As the opinion of the majority discloses, however, this rule has been vigorously attacked by dissenting judges and legal scholars as unreasonable, unjust and inconsistent. And some courts have refused to apply it to cases where, under the particular circumstances, it was thought that the reason for the rule, namely, the public policy which seeks to preserve the peace and harmony of the home, did not exist; or have indicated by way of dictum that its application should thus be limited. Thus, for example, in Dunlap v. Dunlap, 84 N. H. 352, 150 Atl. 905, 7 .1 A. L. R. 1055, the court said obiter that in the case of “malicious injuries” abandonment of the parental relation should be implied. Cannon v. Cannon, 287 N. Y. 425 , 40 N. E. (2d) 236, indicates a similar view.

In the present case the court adopts the immunity rule. In that I agree. But the Court says, nevertheless, that the present action may be maintained because “the decedent-father was guilty of wilful misconduct”; that “the rule should be modified to allow an un *310 emancipated minor child to maintain an action for damages against his parent for a wilful or malicious personal tort”; and that “By the wrongful conduct of the father in overstepping the bounds of the family relationship, the peace, security and tranquillity of the home had already been disrupted. ’ ’

I assume that the Court intends to lay down a rule, and not to make a special instance decision. Except for the use of the word “malicious” in the sentence heretofore quoted from the Court’s opinion, the reasons assigned for making an exception of this case seem to me to be inadequate attempts to draw a line for this class of cases. If the evidence justified the belief that the conduct of the father was in fact malicious I might be able to go along with the majority, for the word “malicious” means “harboring malice, ill will, or enmity; having a deliberate intention to injure others; intending or determined on evil”. Funk & Wagnall’s New Standard Dictionary. In such a case a valid argument might be made that the peace of the family had already been disrupted. But the evidence does not show that the father had any ill will or enmity towards his son or that he intended to injure him any more than he intended to injure himself. However reprehensible his conduct may have been, it was not inspired by malice.

A “wilful tort” does not connote intent to injure anyone. Doubtless, it means the same thing as “wilful misconduct”, which, as shown by the authorities cited in the opinion of the majority, “necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom.” Parsons v. *311 Fuller, 8 Cal. (2d) 463, 66 P. (2d) 430 . It includes “reckless disregard of the rights of others” (Durgin’s Case, 251 Mass. 427, 430 , 146 N. E. 694 , cited by the majority) in the operation of an automobile, for which, under our statute, the owner or operator is liable to his guest. §115-1001, O. C. L. A. It includes “gross negligence”, as used in the same statute, which this court has defined as an “I-don’t-care-what-happens mental attitude”. Lee v. Hoff, 163 Or. 374, 390 , 97 P. (2d) 715 , quoted with approval in Lawry v. McKennie, 177 Or. 604 , 164 P. (2d) 444 . No decision is cited by the majority for the view that the test for determining liability or nonliability in this class of cases is whether the tort is “wilful” — which is a different thing from “malicious”. I have found no such decision, and I respectfully suggest that that view has no support in reason. Apparently, the justification for making “wilful tort” the touchstone is that the commission of such an act by a parent, resulting in injury to his child, demonstrates that the security, tranquility and peace of the home have already been disrupted; and the public policy behind the rule of parental immunity, therefore, has nothing to operate upon. But, if that be true in this case, it would be equally true in every case brought by a child-guest against a parent under the statute above referred to. There is no basis for such an assumption; nor is there for the conclusion here that the peace of the home had been disrupted because a logger, in his misguided attempt to celebrate V-J Day, got drunk, commanded his son to ride with him in his automobile, and drove so recklessly — if he did so — that the journey ended in death for both of them.

In short, I am unable to find in the facts of this *312 case a logical basis for taking it ont of the conceded rule of parental immunity, and am therefore compelled to record my dissent.

Entertaining this view, I express no opinion upon the very close and difficult question of whether or not the evidence is too uncertain and speculative to have warranted submitting the issues of negligence and proximate cause to the jury.

I am authorized to say that Mr. Justice Bailey concurs in the foregoing dissent.

I concur in the dissenting opinion of Mr. Justice Brand.