# Streenz v. Streenz

> Arizona Supreme Court · June 11, 1970 · 106 Ariz. 86

URL: https://www.frixlaw.com/law-library/cases/9621511

## Case

- **Full name:** Sharon STREENZ, a Minor, by Her Guardian Ad Litem, William J. Francy, Appellant, v. James T. STREENZ and Ramona Streenz, Husband and Wife, Appellees
- **Court:** Arizona Supreme Court
- **Decided:** June 11, 1970
- **Citations:** 106 Ariz. 86; 471 P.2d 282; 41 A.L.R. 3d 891; 1970 Ariz. LEXIS 359
- **Precedential status:** Published
- **Opinion:** Dissent by McFARLAND
- **Judges:** Hays, McFarland, Lockwood, Struckmeyer, Udall
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Broadbent v. Broadbent, 184 Ariz. 74 (1995).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9621511

## How later opinions describe it (automated extraction)

- rejecting parental immunity in automobile accident case

## Opinion text

McFARLAND, Justice
(dissenting).
I am forced to dissent because there has been presented no persuasive authority that the cure proposed by the majority is not worse than the disease.
The single question presented in this case is simple enough: should an uneman *90 cipated child he permitted to maintain a cause of action against its parents for damages resulting from the parents’ tortious conduct. Although this is an automobile negligence case, the striking down of the immunity doctrine is not limited to this field. The implications in the majority opinion make it plain that the area they have opened is analogous to Gertrude Stein’s famous Rose; a tort is a tort is a tort. If the immunity from suit is removed for an automobile tort, it follows logically that it is removed for all negligent acts — for example, those which may occur in the sanctity of the home. Needless to say, the “sanctity”, also includes the “secrecy” of the home.
A vacuum cleaner forgetfully kept near an entrance; an open, live toaster wire carelessly ignored by the do-it-yourself father; a teakettle or pot of boiling water unthinkingly left within the reach of a toddler, all become the elements of a suit by the infant child against his parents. It takes but little imagination to conceive of almost unlimited examples. Liability lurks in every corner of the household. And when tragedy strikes through the inadvertent, but nevertheless tortious, hand of the child’s parent (let us say the father), that same parent must decide — or at least participate in a family decision — whether or not suit should be instituted for the benefit of the child. The father must decide whether his duties as a father compel him to pass upon the possibility of a recovery against himself for accidental injuries to his child of tender years and take the child to some one to act as guardian ad litem to bring the suit against himself. The father must then assume the role of the defendant, and, presumably, assist in good faith in the defense of the suit in accordance with the terms of the “cooperation clause” of his insurance policy.
Similar fears were expressed by the majority of the New Jersey Supreme Court, in Hastings v. Hastings, 33 N.J. 247 , 163 A.2d 147 :
“* * * Again, practically speaking an action is not going to be commenced unless the family member to be sued is in-effect prepared to say that he was negligent. The decision for the child to sue will be determined within the family circle and obviously the proposed defendant is going to participate in making it, quite an unorthodox situation under our basic concept of adversary litigation, to say the least. The risk of collusion is indeed a very great and human one, when the insured’s own flesh and blood and the family pockctbook are concerned. It is unlikely in most instances that the insurance carrier, whose interests arc the only ones really at slake, can adeejuately defend itself. The defendant under the insurance contract has the obligation to cooperate with the insurer, an obligation which, unless there is absolutely no question of his sole or concurrent and proximate negligence (a somewhat rare situation in everyday life), he will find it difficult to fulfill and at the same time further the successful outcome of the suit for the benefit of the child (and incidentally his own), which in reality is what he wishes to accomplish. The possibility of collusion, and the corollary of breakdown of most desirable individual integrity within the family frequently involving children as well, is so great in so many cases of the kind before us that we feel constrained to conclude, in conjunction with the other considerations previously mentioned, that sound public policy precludes their prosecution. It may be urged that the possibility of similar fraud also exists in other situations where our law permits suits, as in actions by guest against host, but u'e are convinced that the danger is not so great and the matter of integrity within the family is not involved.”
Furthermore, the scope of the liability created here is not limited to child versus parent; if the doctrine of immunity is eliminated parents will be able to sue their children.
Many of the cases in support of the immunity doctrine stress, in its justification,, the great possibility of collusive suits be *91 tween parent and child. 1 Those cases which have overturned the doctrine properly point out that collusion is an ever-present possibility in all tort actions — particularly where the parties are related (other than parent and child) or are close friends, and only require closer scrutiny by judges and juries. I prefer not to rest my opinion solely on an assumption of illegal ■collusion by parents, together with its concomitant inferences of perjury. But how far can we strain the loyalties of a parent torn between his moral principles and his •concern for his offspring?
The other reasons give by the many cases in favor of parental immunity have been pointed out in the footnote to the majority opinion; they are that such litigation would disturb domestic tranquility; deplete the family treasury; interfere with family discipline; or to prevent the possibility of inheritance, by the offending parent, of the amount recovered on behalf of the child.
The reason to prevent the possibility of •inheritance is of dubious merit, and were it the only one presented in support of the ■doctrine of parental immunity I would have no hesitation about joining the majority in their opinion.
A dissenting opinion was filed in this ■case in our Court of Appeals, 11 Ariz.App. 10 , 461 P.2d 186 , and is quoted with approval by the majority opinion here. Both ■opinions cite cases which have tumbled these remaining principles supporting parental immunity. As for depletion of the “family exchequer” the New Hampshire Court, in Briere v. Briere, 107 N.H. 432 , 224 A.2d 588 , was quoted as follows:
“As to the depletion of the family exchequer, the court in the Dunlap case summarily rejected this argument as having no substantial weight and said that it ignored ‘the parent’s power to distribute favors as he will, and leaves out of the picture the depletion of the child’s assets of health and strength through the injury.’ [Citation omitted] To this may be added today’s reality that if the father has means, he will almost inevitably carry insurance, and if he has not, the chances of anyone bringing suit for the child are remote. [Citation omitted] We agree that the existence of insurance should not impose a duty upon a parent where none existed before. [Citation omitted] However, as a practical matter, the prevalence of insurance cannot be ignored in determining whether a court should continue to discriminate against a class of individuals by depriving them of a right enjoyed by all other individuals. [Citations omitted]”
Preservation of “domestic tranquility” and “parental discipline” are discarded by the following quotes:
“We are of the further view that although the existence of liability insurance does not create liability its presence is of considerable significance here. To persist in adherence to family-harmony and parental-discipline-and-control arguments when there is automobile liability insurance involved is in our view unrealistic. If there is insurance there is small possibility that parental discipline will be undermined, or that the peace of the family will be shattered by allowance of the action.” HebeL v. HebeL (Alaska) 435 P.2d 8
“* * * family peace and parental authority, in the overwhelming majority of cases, will be threatened less by an unemancipated minor’s suit for tort against a parent, where the latter is generally protected from loss by insurance, than by an action for breach of contract or to enforce property rights where the parent would ordinarily have to pay a verdict *92 from his own pocket. [Citations omitted]” Briere v. Briere, supra
In place of the above-enumerated principles in favor of immunity, I find the contrary argument capsuled in one phrase, to the effect that the abrogation of the immunity doctrine is “more consistent with contemporary conditions and concepts of fairness.” But nowhere — be it text writers, law-review articles, or judicial opinions— has there been a satisfactory explanation of how our present-day “concepts of fairness” differ from the past or what currently changed conditions require an immediate excision of this “diseased” organ of jurisprudence. Of course, a cursory reading of most of the cited authorities will leave little doubt in the reader’s mind that the “changed concepts and conditions” is “the wide prevalence of liability insurance in personal injury actions. * * *” Goller v. White, 20 Wis.2d 402 , 122 N.W.2d 193 . The Briere case, supra, phrases it that as a “practical matter, the prevalence of insurance cannot be ignored,” but in the same breath underscores the potential collusiveness of such suits with the statement:
“* * * To this may be added today’s reality that if the father has means, he will almost inevitably carry insurance, and if not, the chances of anyone bringing suit for the child are remote.” [Emphasis added.]
In the average family — that is, one with no pre-existing disruption — the “anyone” in the above quotation would be the child’s mother, or guardian ad litem, with the considered advice and consent of the father and then only after a careful reading of his insurance policies. This is a clarion-call to moral, of not legal, collusion, at the expense of the insurance carrier. The majority opinion frankly expresses the practical relationships in child-parent litigation:
“* * * Secondly, we cannot ignore the almost universal existence of liability insurance, particularly in the automobile accident realm. Where such insurance exists, the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and the parent’s insurance carrier. * * *”
To this can be added the converse situation that the litigation is not between parent and the child-tortfeasor, but between parent and the parent’s insurance carrier.
And, while on the topic, we may just as well be thoroughly practical and admit that in “contemporary conditions” insurance companies operate on a profit basis, delegating the risks of increase loss experience to their patrons in the form of increased premiums. Equally realistic is the prevalence of medical-payment coverage, regardless of fault, in most automobile and home-owner’s policies, together with the wide-spread custom of carrying hospitalization, surgical and dental coverage. These cover most, if not all, of the expenditures from the “family exchequer” needed to heal the unfortunate child. The superimposition of liability reimbursement — pain and suffering, loss of services, etc., as distinguished from indemnity for actual expenses — seems more to be balm for the wounded feelings of the parent-tortfeasor than for the physical suffering of the child.
I cannot believe the concept of a mother or father has materially changed with present conditions; that is, a dedicated parent is willing to suffer any deprivation, even the loss of life itself, for the well-being of his children. Even wild beasts are known to possess this trait. Now we are going to demand that parent to respond in damages, possibly after a trial, for an unintentional and no doubt greatly regretted, lapse in his diligent care for his offspring. That an insurance company may pay the money does not alter the principle. I am not prepared to concede that the value of the family relationship can be measured in dollars and cents. These concepts were expressed in Hastings, v. Hastings, supra:
“* * * It appears quite unseemly, to say the least, to suggest that a mere act or omission within the family circle *93 amounting to no more than carelessness, which the one to blame would do almost anything to avoid, should require the payment of money by one member of the group to another. We believé that true family life, so important to our civilization, should not include among its foundation stones the concept of recompensable fault between parents and unemancipated children. The idea seems utterly foreign, whether a family member or some third party is compelled to produce the money.”
Hastings contains the touchstone of the parental-immunity doctrine — the family. Terms such as “family exchequer,” “parental discipline,” and “domestic tranquility” are merely suggestive, but not truly expressive of this concept. Sir Henry Maine establishes the importance of the family thusly:
“The Roman and Hindoo systems of law from which I propose to illustrate my subject are very far indeed from being the only sources from which information can be gathered concerning the infancy of- mankind, or even concerning the Aryan race of men. But the evidence supplied by each of them is highly authentic, and, while both of them run back to what may fairly be called a vast antiquity, they both assume at their starting-point the existence of the institution, by no means apparently universal among savage men, out of which, as I said, all civilisation has grown — the Family. * * *» Maine, Early History of Institutions, p. 307
The family is the cornerstone, the very fabric of our form of government. For eighty years the immunity doctrine, with carefully carved-out exceptions, has been maintained with the intention of preserving this basic institution. Any proposal to eradicate the doctrine should be viewed critically and any action on such a proposal must come only after careful study of its potential results.
If the existence of insurance is the sole catalyst which causes the reaction against the time-honored rule of parental immunity, then I would leave it to the Legislature, with its greater ability to inquire into all facets of the problem, to revise completely this entire field of law. A statement in Badigian v. Badigian, 9 N.Y.2d 472 , 215 N.Y.S.2d 35 , 174 N.E.2d 718 , still retains its validity despite the over-ruling of the decision in Gelbman v. Gelbman, 23 N.Y.2d 434 , 297 N.Y.S.2d 529 , 245 N.E.2d 192 :
“The courts have alrady provided different treatment for situations where the injury occurs outside the normal familial relationship such as where the injury is wanton and intentional or where the tort is committed in the course of the parent’s business. Perhaps some other special provision should be made for cases where disability extends beyond infancy, but it would be a great oversimplification to attempt to deal with those instances by a simple reversal of the settled rule. Inquiry and planning for any such protection is beyond the competence of a court and belongs with the Legislature.”
Judge Burke in his opinion in Gelbman, supra, pointed out that he had agreed with the majority in Badigian, supra, but that in the seven-year interval between the two decisions there had been a continuing judicial erosion of the rule and that:
“During that same interval, legislative intervention has not been forthcoming. * * * The inactivity of the Legislature since the time of our decision in Badigian illustrates the fact that the rule will be changed, if at all, by a decision of this court.
I would treat the matter in the same way (although not necessarily for seven years) by giving our legislature “first refusal” to come to grips with the problem.
The majority opinion follows the authorities which consider the parental immunity doctrine to be a court-created rule rather than being founded in the common law, or as expressed in the opinion — “a creature of American jurisprudence.” Unfortunately, its genesis has become as controversial as *94 its continued existence. Some authorities claim it to be a rule of common law. 2
The first serious consideration given to the question in the English courts resulted in the rejection of the doctrine by a divided seven-judge court in Scotland. Young v. Rankin, Scot’s Law Times Rpts. 445 (1934). The majority of that court were of the opinion that the fact that the earlier English Reporters and text writers failed to mention the doctrine was proof that it never existed in the English Common Law. On the other hand, the minority were equally certain that this failure to comment on the doctrine was proof that the existence of the doctrine was so well taken for granted that it required no comment. Regrettably, the existence of the doctrine in Scotland was rejected, but its paternity was left in doubt.
Here in the United States there seems little doubt that parental immunity first saw the light of day with the Mississippi case of Hewlett v. George, 68 Miss. 703 , sub nom. Hewellette v. George, 9 So. 885 (1891). Unfortunately, it involved malicious treatment by a mother and stepfather —an element which would not have been condoned in the later and more enlightened stages of the doctrine. See e. g., Goller v. White, supra. Soon Hewlett was joined by McKelvey v. McKelvey, 111 Tenn. 388 , 77 S.W. 664 (1903); and Roller v. Roller, 37 Wash. 242 , 79 P. 788 (1905). Both decisions were as regrettable as their progenitor.
The former denied recourse, on the grounds that it would cause family disharmony, to a child who was the victim of what we today term the “battered child syndrome.” The latter, with no excuse and even less reason, refused to disturb the domestic tranquility on behalf of a young girl who was raped and ravaged by her father. From this sordid background emerged the doctrine of parental immunity. Eventually, parental immunity became one of the established laws of the land; but not without a severe process of judicial refinement which, over many years and many decisions, struck away the sharp edges of severity spawned by the original trilogy, and honed it into a workable law. The majority opinion views this process as “evincing hostility for the doctrine.” T consider this continued engraftment of exceptions on the application of any rule to be normal, judicial procedure. Judicial exceptions are equally compatible with the concept of improvement as they are with destruction.
However, it seems immaterial now, whether parental immunity descended from the Common Law, or is a creature of the American judiciary. The doctrine has become firmly imbedded in our jurisprudence over a span of eighty years by virtue of innumerable decisions from almost every State in the Union. I do not believe that courts should slavishly follow precedents. Judges are not eternally shackled to the decisions of their predecessors. On the other hand, T do not believe that precedents can be lightly disregarded. Mr. Justice Jackson aptly describes this in an article in Col.L.Rev. 45:1, at 26:
“* * * While Judge Cardozo pointed out with great accuracy that the power of the precedent is only ‘the power of the beaten track,’ still the mere fact that a path is a beaten one is a persuasive reason for following it. * * *"
I find it inconceivable that so many courts have walked in error for so many years, even up to the present.
However, if there are now valid and pressing social reasons for the abrogation of the doctrine, the legislature should have the opportunity of inquiring into them, and, if necessary, revising this area of tort law.
UDALL, J., concurs in this dissent.
. There is no need to burden this opinion with a reiteration of the cases which hold this and the other reasons given in ■support of the doctrine. Several are ■cited in the majority opinion and, as .there pointed out, the earlier cases are collected in 19 A.L.R.2d 423 , and are supplemented in 3 A.L.R.2d, Later Case Service, 34. A lengthy compilation of articles condemning the doctrine can be found in the dissenting ojnnion in Hastings v. Hastings, supra.
. See cases cited in 10 A.L.R.2d 423 , n. 20 at p. 431.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9621511. Public record. Not legal advice.