Eschen v. Roney

194 S.E.2d 589, 127 Ga. App. 719, 1972 Ga. App. LEXIS 1008

• Court: Court of Appeals of Georgia
• Decided: September 22, 1972
• Docket: 47452
• Status: Published

Opinions

Clark, Judge.

Does the doctrine of "parental immunity” in tort cases apply to third-party actions? That question is presented in this case which had its inception when a minor plaintiff, John W. Roney, received personal injuries while riding as a passenger in a family car owned by his mother, Mrs. June K. Roney, and being driven by his sister, which had a collision with an automobile driven by Lois W. Eschen. The instant suit was filed by the minor through his mother as next friend, to which defendant filed an answer denying negligence. She also instituted a third-party action under the family-car doctrine "for judgment over against third-party defendant, Mrs. June K. Roney, for contribution for all sums which may be adjudged against her¹.” As such third-party defendant, Mrs. Roney made a motion to dismiss based upon her son being an unemancipated minor who could not sue his mother for negligence. This appeal is from a judgment sustaining that motion to dismiss.

The trial court is sustained upon the authority of Shell v. Watts,1 125 Ga. App. 542 (188 SE2d 269), a case quatuor pedibus currit to that sub judice, differing only as to consanguineous connection in that it involved inter-spousal immunity under a third-party complaint. In Headnote 6 Judge Randall Evans wrote: "It has been many times held that the public policy of this State prevents suits between members of a family, such as an unemancipated child against a parent, or wife against a husband, as such suits tend to disrupt the family tranquillity. Bulloch v. Bulloch, 45 Ga. App. 1 (163 SE 708); Wright v. Wright, 85 Ga. App. 721 (70 SE2d 152); Stapleton v. Stapleton, 85 Ga. App. 728, 729 (70 SE2d 156). Further, it is a general rule that one cannot do indirectly that which the law does not allow done directly. To allow the defendant Shell to have judgment against Watts for all sums adjudged against him by Watts’ wife would be tantamount to allowing Watts’ wife to sue her husband in tort. The court properly sustained the motion to dismiss the third-party complaint against Watts because there could be no contribution because of marital immunity. See Heyman v. Heyman, 19 Ga. App. 634 (1) (92 SE 25); Chastain v. Chastain, 50 Ga. App. 241 (3) (177 SE 828).” See also Southern R. Co. v. Brewer, 122 Ga. App. 292 (176 SE2d 665).

Scholarly counsel for appellant argues that analysis of the reasons given by this court in Bulloch v. Bulloch, supra, for establishment of the "parental immunity” rule in Georgia as a matter of public policy shows it should not apply in the instant situation. He supplements this by further legal ratiocination supported by those cases constituting exceptions to such doctrine. These are: Farrar v. Farrar, 41 Ga. App. 120 (152 SE2d 278), which dealt with an emancipated child after reaching majority; Wright v. Wright, 85 Ga. App. 721 (70 SE2d 152), where the parent forfeited its parental authority by a wilful tort; and Stapleton v. Stapleton, 85 Ga. App. 728 (70 SE2d 156), which permitted the child to sue the parent’s employer. These cases do not apply here.

Counsel also calls our attention to two cases wherein the United States Court of Appeals for the Fifth Circuit in compliance with the Erie doctrine (Erie R. Co. v. Tompkins, 304 U. S. 64 (58 SC 817, 82 LE 1188, 114 ALR 1487)) sought to apply Georgia law on the right of a minor to maintain a negligence action against a deceased parent’s estate. In the first of these cases, Union Bank &c. Co. v. First Nat. Bank &c. Co., 362 F2d 311, the action was permitted against a mother’s estate. The court reasoned that with both parents being killed in the auto accident which brought about the suit that there could be no disruption of family unity, one of the motivations for creation of parental immunity, and that the existence of liability insurance removed the possibility of discriminatory impact upon the family finances for the benefit of one child, which had been another reason mentioned in Bulloch v. Bulloch. Then by analogy to Cox v. DeJarnette, 104 Ga. App. 664 (123 ), in which it was held that charitable immunity did not exist for tort liability to the extent of coverage afforded by liability insurance, it was ruled that the estate of the deceased mother was not immune to the extent of the coverage. It should be noted the court here recognized that Georgia law did not permit an unemancipated minor to recover against its parents for a tort caused by ordinary negligence. When this matter of liability insurance was considered in Harrell v. Gardner, 115 Ga. App. 171 (154 SE2d 265), our court did not accept the suggestion concerning the existence of liability insurance, but quoted from the Bulloch case that liability insurance would be irrelevant. In the light of this Georgia ruling, Barnwell v. Cordle, 438 F2d 236, undertook "to review the development of the Georgia doctrine of parental immunity and the foundations which support it.” P. 238. In doing so, the Federal court dealt with those exceptions which are already mentioned in this opinion, and concluded there was a cause of action for the benefit of a permanent quadriplegic² minor "which he was prevented from converting into a judgment for howsoever long his father lived because of the doctrine of parental immunity.” P. 241.

The Federal appellate court may have been influenced by a nation-wide trend towards abolition of the parental immunity doctrine³ but the Court of Appeals of Georgia does not indulge in "judicial legislation.” For example, Stovall & Co. v. Tate, 124 Ga. App. 605 (184 SE2d 834) declined adoption of the strict liability doctrine on manufactured products as being a matter for the legislature. Henry Grady Hotel Co. v. Sturgis, 70 Ga. App. 379 (28 SE2d 329), Best v. State, 109 Ga. App. 553 (136 SE2d 496) and Hyde v. Atlantic Steel Co., 112 Ga. App. 136 (144 SE2d 232) are further illustrative of our court recognizing that we are not to encroach upon the legislative domain.⁴ Where there is an established legal doctrine such as this court enunciated in Bulloch v. Bulloch, supra, "under the public policy of this State, as expressed in the public laws” and it has been consistently followed for thirty years, we regard any change as being a matter for the legislature.

Judgment affirmed.

Eberhardt, P. J., Panned, Quillian and Evans, JJ., concur. Had, P. J., concurs specially. Bed, C. J., Deen and Stolz, JJ., dissent.

1 Reversed on other grounds by the Supreme Court in Shell v. Watts, 229 Ga. 474 (192 SE2d 265).

2 As we hold our Fifth Circuit Judges in high regard and with respect, would it be lese majeste to comment "hard cases make bad law?”

3 See Briere v. Briere, 107 N. H. 432 (224 A2d 588) (1966); Brennecke v. Kilpatrick, 336 S. W. 2d 68 (Mo. 1960); Midkiff v. Midkiff, 201 Va. 829 (113 SE2d 875) (1960); France v. A. P. A. Transport Corp., 56 N. J. 500 (267 A2d 590) (1970); Gibson v. Gibson, 3 Cal. 3d 914 (92 Cal. Rptr. 288, 479 P2d 648) (1971); 3 Personal Injury Commentator 42; 22 Mercer L. Rev. 803.

4 A view to which we subscribe was stated by the late Justice Hugo L. Black in affirming the Georgia Supreme Court case of Evans v. Abney, 224 Ga. 826 (165 SE2d 160) when he concluded the majority opinion in Evans v. Abney, 396 U. S. 435, 447 (90 SC 628, 24 LE2d 634), with this statement: "The responsibility of this court, however, is to construe and enforce the Constitution and laws of the land as they are and not to legislate social policy on the basis of our own personal inclinations.”