Canen v. Kraft , 41 Ohio App. 120 ( 1931 )

Mae Canen, a minor, by Sarah Canen, her mother and next friend, brought an action against Ollie Kraft and S. Louis Canen, her father, to recover damages sustained by her in a collision between an automobile driven by Ollie Kraft and an automobile in which she was riding which was driven by her father.

Plaintiff in her amended petition sets out facts in detail showing that her father, S. Louis Canen, carried liability insurance in the Celina Mutual Casualty Company, covering the car driven by him. The amended petition prays for judgment against S. Louis Canen, and that the Celina Mutual Casualty Company be made a party defendant and required to answer; and further prays that, if the Celina Mutual Casualty Company be found by the court to be the real party in interest, and the real defendant engaged in the defense of this action, judgment be rendered against it in the sum of $5,000, in favor of the plaintiff. No judgment, however, is asked against Ollie Kraft. The defendant S. Louis Canen filed a motion to strike from the amended petition all the allegations relating to liability insurance and the Celina Mutual Casualty Company. The court of common pleas sustained the motion, and the journal entry recites that the plaintiff not desiring to plead further, the defendant S. Louis Canen then moved for an order dismissing plaintiff's petition. This motion was also sustained, and the plaintiff's petition dismissed. Plaintiff in error contends that in sustaining these motions the court of common pleas committed reversible error.

Two questions are presented by the record: Whether a liability insurance company can be joined with the automobile owner in a suit for personal injury sustained by reason of the negligence of the latter; and whether a minor child may maintain an action against her father for personal injuries sustained by negligence of the father in operating the car in which they were riding.

The amended petition contains no allegations which show that the policy given by the insurance company to the father by its terms made the insurance company directly liable to the person injured. It appears that it was an ordinary policy, and under the provisions of Sections 9510-3 and 9510-4, General Code, no proceeding may be had against the insurance company by the injured person until the right of action for personal injury is reduced to judgment.Stacey v. Fidelity Casualty Co. of N.Y., 114 Ohio St. 633,151 N.E. 718.

The court below therefore committed no error in sustaining the motion to strike matter from the amended petition.

If the amended petition stated a cause of action against the defendant S. Louis Canen, dismissal of the petition constituted prejudicial error. The question is therefore presented whether or not the daughter, Mae Canen, eleven years of age, could maintain an action against her own father. By the weight of modern authority, an unemancipated minor child cannot maintain an action for a personal tort against its natural parent. The rule is stated in 20 Ruling Case Law, 631, and the authorities are collected in the following annotations: 71 A.L.R., 1071; 31 A.L.R., 1157.

The reason upon which the rule is based is the safeguarding of the family relation and the preservation of harmony and good will among its members. We are aware that a controversy has arisen in adjudicated cases with respect to the proper rule, and pursuit of the inquiry is interesting and instructive.

In the case of Sorrentino, an Infant, v. Sorrentino, 248 N.Y. 626, 162 N.E. 551, decided July 19, 1928, a boy eleven years of age brought an action against his father for personal injuries sustained on account of the negligence of the father in driving an automobile in which they were both riding. The full report of the case is as follows:

"Judgment affirmed, with costs. Held, that an action for personal injuries resulting from negligence may not be maintained against a parent by an unemancipated minor child.

"Pound, Lehman, Kellogg and O'Brien, JJ., concur.

"Cardozo, C.J., Crane and Andrews, JJ., dissent."

A very excellent discussion of the question may be found inDunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R., 1055. In this case, the minor child was working for the father under an agreement between them by which the child was to work during the summer vacation in the father's business at the same wage paid other workmen, less a deduction for the value of his board at home. It appears that premiums on employers' liability insurance were computed in part on the child's wages. The court held that the father intended to assume full responsibility of a master toward his servant and release parental control so far as was necessary to attain that end, and was liable for personal injury to the son.

Upon this phase of the inquiry, the dissenting opinion in the case of Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R., 1135, is worthy of perusal.

An elaborate discussion of the whole question of torts between persons occupying the domestic relation may be found in 43 Harvard Law Review, 1030. On the concluding page (1082) of this discussion may be found the following:

"In the case of parent and minor child, the matter has been and still is one of common law. Authority is in favor of recognition of a cause of action in respect to property injuries, and a denial thereof in respect to personal injuries. In most states the personal injury situation has not been adjudicated, and the few clear decisions we have go back no further than 1891.

"In view of the paucity of authority, the unsatisfactory and inconsistent character of the reasons advanced, the different and inconsistent treatment of husband and wife and parent and child, in several instances by the same court, and the changed economic conditions of the present day, the problem of a cause of action for personal injury should be considered an open question, meriting a more careful and exhaustive analysis, a more critical appreciation of the factors involved, and a more rational treatment than it has received in the past."

Notwithstanding the difference of opinion as shown by the references to these authorities, we are satisfied that the great weight of authority in modern adjudicated cases is that the unemancipated minor child cannot sue the natural parent for personal injuries arising out of the negligence of the parent.Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753; Elias v.Collins, 237 Mich. 175, 211 N.W. 88, 52 A.L.R., 1118; Mannion,Jr., an Infant, v. Mannion, 3 N.J. Misc. R., 68, 129 A. 431;Damiano v. Damiano, 6 N.J., Misc. R., 846, 143 A. 3; Sorrentino,an Infant, v. Sorrentino, 248 N.Y. 626, 162 N.E. 551; Ciani, anInfant, v. Ciani, 127 Misc. Rep., 304, 215 N.Y.S., 767; Matarese v. Matarese, 47 R.I. 131, 131 A. 198, 42 A.L.R., 1360, 25 N.C.C.A., 737; Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R., 1113; Zutter v. O'Connell, 200 Wis. 601, 229 N.W. 74. We feel constrained to follow these authorities.

This court, in the case of Finn v. Finn, 19 Ohio App. 302, held that, where a husband and wife are living together, the wife cannot maintain an action against her husband for personal injury growing out of his negligence. It appears that a motion to certify the record was overruled by the Supreme Court March 3, 1925. While at common law the husband and wife were one, and the husband was that one, and in that respect the marital relation would be different from the relation of parent and child, yet under the modern acts relating to the rights of married women the wife is quite free in Ohio, and Finn v. Finn, supra, is entitled to weight. At least, the reason for the rule that the wife cannot sue the husband under such circumstances is based upon the same reason as the rule between minor child and parent; namely, the preservation of the home ties.

It appears that in the instant case the daughter was living with her father and was under his care, custody, and control, and it does not appear from the amended petition that she had been emancipated.

We are of the opinion that the minor daughter could not maintain the action against her father, and that the court below did not err in dismissing the plaintiff's petition.

For the reasons given the judgment will be affirmed.

Judgment affirmed.

LLOYD and RICHARDS, JJ., concur.