Elam v. Elam

Littlejohn, Justice

(concurring and dissenting) :

I concur in that portion of Mr. Justice Ness’s opinion which holds that § 15-5-210, Code of Laws of Nouth Carolina (1976) is unconstitutional.

I dissent from that part of his opinion which holds that an uneman-cipated minor may sue his parents.

In the Elam case, the sole issue for determination by the court was whether § 15-5-210 was constitutional, and the only exception in that case reads as follows:

“His Honor, the trial judge, erred in finding that S. C." Code of Laws § 15-5-2101 (1976) is constitutionally defective in its limitation to actions arising out of motor vehicle accidents.”

In the Maw case, this same .issue plus an additonal issue were before the lower court. In Maw, the court held that parental immunity involved a proper classification and followed the rule apparently first enunciated by this court in Kelly v. Kelly, 158 S. C. 517, 155 S. E. 888 (1930). This case has been consistently followed since that time, as recently as Hyder v. Jones, 271 S. C. 85, 245 S. E. (2d) 123 (1978). Counsel for the plaintiff-appellant in the Maw case, appreciating the fact that the circuit judge’s order as relates to the immunity issue was consistent with the rulings of this court over the years, petitioned this court on December 11, 1979, to be allowed:

“. . . to attack or argue against previous decisions of this Court and respectfully request this Court to review, modify or overrule the same upon the following reason:

1. That the Parental Immunity Doctrine is based upon an unreasonable classification and is violative of the Equal Pro *139 tection Clause of Article I § 3 of -the South Carolina Constitution and the Fourteenth Amendment of the United States Constitution.”

On behalf of the court, the Chief Justice overruled the petition, stating, “Petition denied. Petition insufficient.”

Rule 8 § 10 of the Rules of this court reads as follows:

“Counsel desiring to attack or argue against a decision of this Court, with a view to asking the Court to review, modify, or overrule the same, must petition the Court in writing, at least four days before the call of the case in which such argument is sought to be made, asking permission to do so, and set forth the reasons why the decisions in question should be reviewed, modified, or overruled.”

This court, having denied Maw the right to argue against the child-parent immunity opinions should not now even consider overruling our previous decisions.

This court may, of course, overrule its immunity opinions without reaching -the constitutional equal protection argument ; no request has been made for permission to attack our common law made immunity rulings. I do not. consider a review of our previous rulings appropriate; first, because we have denied to counsel the right to argue that the parental immunity doctrine is based on an unreasonable classification and, secondly, because no request has been made to be permitted to ask this court to reverse its previous common law rulings.

Independent of the fact that the matter is not proper for consideration by this Court, I would adhere to our previous rulings. Classifications are oftentimes difficult, but I have no trouble in agreeing with the lower court, which held:

“The doctrine of Parental Immunity is a well established doctrine of common law in this State and does not violate ¡the constitutional guarantee of equal protection of the laws which requires that all persons be treated alike under like circum *140 stances and conditions, both in the privileges conferred and in the liability imposed. Special treatment to minors is evidenced in many legislative enactments ranging from consumption of alcoholic beverages to parents liability for the intentional torts of their minor children under Section 15-75-30 of the South Carolina Code of 1976. The adoption of the parental immunity doctrine with the espoused policy of preserving family unity and harmony and parental discipline is in no way a denial of equal protection under the laws, but rather is a reasonable classification whereby all those persons within that class who are under a like circumstance are treated similarly with regard to privileges and habilites.”

The common law rule was enunciated by this court in 1930 because the issue was submitted to the court. When such issues are brought to the court, a ruling is required and the court is sometimes accused of legislating. If it is legislation, it is legislating of necessity. Since that time the General Assembly of South Carolina has met in 50 regular sessions, plus a few special sessions, and has apparently been satisfied with the doctrine as is indicated by a failure to statutorily abolish parental immunity. If this court, as now composed, may now change the rule of law, the court ten years from now, as then constituted, can change it again. For that matter, this same court could, next year or next case, change it again. The original ruling in 1930 was of necessity. A change of the rule is not of necessity, but is merely a matter of choice or declaration of policy. Under the separation of powers doctrine, the declaration of the rule enunciated should be left to the General Assembly.

I am not unaware of the fact that the courts of some states have abolished parental immunity, but I am simply not impressed by the logic. Such is inconsistent with the declared policy of this court.

I would affirm the orders of the lower court in both the Elam and the Maw cases.