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

BRAND, J.,

dissenting.

Seldom, if ever, does a good surgeon saw a man’s leg half off. Yet that, I fear, is the kind of operation which my brethren of the majority are performing upon the rule of law which bars recovery by an unemancipated infant against his parent in an action for tort. They have commenced the amputation; they are unwilling to complete it, and there is no safe place to stop. We are told that law is a progressive science and that we should not be bound by the rule unless it is supported by reason and justice. We are led to anticipate the amputation of the rule from the body of the law. But not so. We are told that “it is unthinkable that a parent while acting within the scope of domestic relations should be brought into court to defend against every unintentional personal tort that might be committed against a minor child”.

Persuasive criticism is heaped upon the decisions which grant immunity to a parent who rapes or brutally beats or maliciously harms or imprisons his child in *313 an insane asylum. The peace and harmony of the family, the maintenance of which is the basis for the rule of non-liability, has already been destroyed, it is said, when a parent inflicts intentional harm upon his child. There is great weight to that argument. But the complaint in the case at bar alleges that the father while intoxicated “was guilty of gross negligence and failed to exercise any care for the safety” of his son and that “each and all of the acts of negligence herein alleged * * * caused the death” of the son. The majority holds that “there is some substantial evidence to support the allegations of gross negligence and intoxication.” But it is conceded that the father did not intentionally harm his son, and there is no evidence of any malicious or intentional infliction of harm. The majority invokes the presumption that a person intends the ordinary consequences of his voluntary act. But the presumption cannot and should not control where, as here, there is no pleading or proof that the consequences were intended and it is conceded that they were not.

The posture of the case is an awkward one. It is arguable that the entire rule of non-liability should be exercised but the court is unwilling to do so. It is arguable that a public policy grounded on the rule which guarantees to every man a remedy for wrong done him, outweighs the rule of policy which grants parental immunity at least where intentional harm is inflicted. But that question is not before us.

The majority adopts a nebulous middle position which will I fear, leave the last state of the rule worse than the first. If the rule of this case prevails, other and different charges of gross negligence will be brought and we will have the spectacle of an infant by *314 a guardian ad litem suing his parent while court and jury flounder about in a maze of uncertainty as to the difference between simple and gross negligence and attempt to determine when a wrong, neither malicious nor intentional nor merely negligent, constitutes an actionable wilful tort. The Chief Justice has adequately dealt with this aspect of the case and I concur in his comments. It is suggested that the mantle of non-liability is available “only when the father injures his child while discharging a parental duty”. Thus is added a new element of confusion. Applying that test it might be inferred that the father would be liable for injury caused by simple negligence if, at the time, he was not discharging a parental duty. It would be equally confusing to hold that violation of the criminal law is the test of liability. Many acts of mere negligence or mere intoxication resulting in harm to another are punishable as crimes.

It is argued that if the rule of non-liability is applied in this case it will result in absurdity and that the tranquility of the home cannot be disrupted by the litigation when both father and son are dead. This is true, but courts cannot decide individual cases on the basis of an intuitive sense of justice with eyes closed to the consequences which may follow the adoption of a new rule. Father and son are dead and so far as they are concerned there will be no disruption of family relationship, but the right of the plaintiff to sue depends upon the wrongful death statute, O. C. L. A., § 8-903. The administrator can sue only if the son “might have maintained an action, had he lived”, against the wrongdoer (the father) “for an injury done by the same act. * * *” Difficult as it may be, we must therefore consider this case as if it were brought by a living *315 son against a living father. Nor is the disruption of the spiritual harmony of the family the only basis for the policy which denies recovery in these cases. Recovery by an infant suing by guardian against his father might in many instances result in the transfer to the infant of the family assets on which other innocent children, members of the same family, are dependent for support. It must be remembered that the law as well as parental affection imposes upon a father the duty of care for an injured child whether the injury was the result of a tortious act or of pure accident. 39 Am. Jur., Parent and Child, § 47, p. 672. Oregon statutes provide not only for the punishment of a father who without just cause fails to care for his child; procedures are also authorized by means of which he may be compelled to provide the requisite care. O. C. L. A., §§ 23-1043 to 23-1047, inclusive.

It may be believed that in this case the mother is the heir of the deceased infant and that therefore the other children in the family will not be deprived of support if the plaintiff prevails. But would the majority say that the right of recovery should depend on the identity of the heir of a deceased infant? And what would be the decision if a living son recovered where death did not intervene? Again, if only the son had died in the accident, the surviving father would be one of the heirs of the son and as such entitled to share in the proceeds of the judgment against himself.

The plaintiff argues that “the fact” that the father carried insurance is relevant to the issue and that recovery would consequently enhance rather than deplete the assets of the surviving widow and children. It is arguable that recovery should be allowed when there is insurance, though the authorities are to the contrary, *316 but that issue is not presented by the pleadings nor shown by the evidence and we have no right to indulge in speculation as to the fact; much less have we the right to base a theory of recovery on speculation. The majority opinion properly declines the plaintiff’s invitation to base the decision on assumptions unwarranted by the record.

Again, I know of no basis for a distinction which would maintain the immunity of a parent for torts committed in and around the home but would allow recovery for like “wilful” torts if committed in an automobile.

I agree with the following statement in the concurring opinion of Mr. Justice Rossman: “The ultimate result to the child and to society resulting from non-liability is good. ’ ’

Finding no basis on which the’ purported rule announced by the majority could be fairly and justly administered in future cases, I am constrained to doubt the soundness, if not the existence, of such rule and to dissent from the decision, notwithstanding a natural sympathy for the bereaved widow and mother.

Mr. Justice Bailey joins in this dissent.