Possibly Vermont may also be in that group, as was indicated by the United States District Court for that District, Xaphes v. Mossey, 224 F. Supp. 578.
Thus the overwhelming weight of authority in this country favors parental immunity as to suits in tort by a minor unemancipated child, with certain exceptions which do not apply to the instant case. It is also necessary to give some consideration to the policy of the theory of immunity. The basis of the doctrine is to protect parental discipline, domestic felicity, and family tranquility and concord. It is argued by the opponents of the rule that these purposes are not realistic. Attention is directed to the fact that an unemancipated child may sue a parent for breach of contract as well as in a controversy over title or possession of property and that, therefore, no reason is perceived for not permitting suits in tort. It is also urged that modern developments lead to widespread use of liability insurance. The result is said to be that most actions for personal injuries are actually defended by counsel for an insurance company and in fact the very bringing of such an action is frequently motivated by the existence of such insurance.
The last argument, however, is a double edged sword. It is indeed a fact that a great majority of actions for personal injuries, especially those arising out of automobile accidents, are defended by counsel for liability insurance companies and involve cases covered by liability insurance. This very fact, however, is an argument against the abolition of the principle of immunity. The presence of liability insurance in such instances may lead to fraud, or at least collusive, or at best friendly suits. A parent may encourage his minor child to bring such an action against him. This is not a far-fetched possibility. Not only is it contrary to good faith but it also has the tendency of promoting cynicism and lack of integrity on the part of the child. The law should not encourage such activities. The parent in such a situation may be at times tempted to bring such a suit, because the judgment, if any, would have to be paid by the insurance company. He is likely to put himself into a position of conflict of interest for he probably would not lend that cooperation to the insurance company, which his policy requires. Both on principle and authority this Court reaches the conclusion that the law of the District of Columbia should adopt the doctrine of parental immunity against suit in tort on the part of a minor unemancipated child, subject, however, to the exceptions heretofore enumerated, none of which are applicable to the instant case.
We may now revert to the major premise of the syllogism, namely, the scope of the right of contribution. Should the right of contribution be limited to cases in which both the defendant and the person from whom contribution is sought are joint tort feasors and are also jointly liable to the plaintiff? Or, does the right of contribution extend to all cases of joint tort feasors, even though because of some bar such as immunity or the statute of limitations, the person against whom contribution is sought is not subject to liability to the plaintiff? Applying the problem specifically to the instant case, does the fact that parental immunity saves one joint tort feasor from liability to the plaintiff, likewise liberate him from the duty to pay contribution to the other joint tort feasor?
The District of Columbia is one of those progressive jurisdictions in which the common law rule that precluded contribution between joint tort feasors, was abandoned by judicial decision. It adopted the more modern doctrine which permits contribution as between joint tort feasors, except in the case of intentional and wilful wrongdoers. This epoch-making and far-reaching step was taken in 1942 by the decision in George's Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219, in which the opinion was written by Chief Justice Groner. Vinson, J., later Chief Justice of the United States, concurred, but Edgerton, J., dissented. Chief Justice Groner, summarized his discussion as follows (p. 191, 126 F.2d p. 223):
"* * * we adopt for the District of Columbia the rule that when the parties are not intentional and wilful wrongdoers, but are made so by legal inference or intendment, contribution may be enforced."
There is no suggestion or intimation that contribution may not be enforced against a joint tort feasor merely because some bar such as immunity or the statute of limitations liberated him from liability to the plaintiff.
Such a limitation was, however, later introduced in Yellow Cab Co. of D.C. v. Dreslin, 86 U.S.App.D.C. 327, 181 F.2d 626, 19 A.L.R.2d 1001. In that case it was held that there is no right of contribution as against a tort feasor who is the spouse of the original plaintiff, because due to marital immunity, the spouse is not liable to the plaintiff. The opinion in that case assumes the proposition without, however, any discussion, that the right of contribution depends on joint liability to the plaintiff. It imports into the doctrine of George's Radio case the limitation that "an injured party plaintiff in the suit from which a right of contribution develops must have had a cause of action against the party from whom contribution is sought." The Court concluded that since the person against whom contribution was sought, was the plaintiff's husband, and because of that relation his wife, the plaintiff, had no right of action against him, there was no basis for a right of contribution. This decision has not been overruled either directly or sub silentio, and is binding on this court.
It may well be argued, however, that the right of contribution is based on a principle of equity and good conscience. Justice requires that when two or more persons by their negligence cause the plaintiff's injuries, they should share in paying the damages. If one is subject to liability for the entire amount, another should contribute his proportionate share. The mere fact that one may not be subject to liability to the injured party because of some bar, does not detract from the fact that his negligence may have been one of two or more proximate causes of the unfortunate result. If the right of contribution among joint tort feasors is to exist at all, it seems unjust to shift the entire burden on one of two joint tort feasors, merely because the other is fortunate enough to be freed from liability to the plaintiff by some extraneous principle of law.
There is a trend toward limiting the effect of the Yellow Cab case, as shown by a later decision in Keleket X-ray Corp. v. United States, 107 U.S.App.D.C. 138, 275 F.2d 167, in which strangely enough, Judge Edgerton wrote the opinion, even though he had dissented in the George's Radio case. In the Keleket case, an action for personal injuries was brought against two defendants, one of whom was the United States. The Federal Tort Claims Act prescribed a shorter statute of limitations in such actions against the United States than the period fixed by the general statute of limitations as to tort actions in the District of Columbia. Under the circumstances of the case, the period of limitations had run against the United States and, therefore, there could be no recovery from the United States. The period of limitations had not expired as against the other defendant. Nevertheless, the Court of Appeals held that the United States was liable for contribution and expressly distinguished the Yellow Cab case, supra. The distinction drawn was that in the Yellow Cab case, the injured party could not at any time successfully have sued the person from whom contribution was sought, whereas in the case before the Court, there had been a time when such an action could have been maintained. In allowing the right of contribution, the Court of Appeals held that so long as the person against whom contribution was sought was at any time subject to liability to the plaintiff, his duty to pay contribution continues, even if his obligation to the original plaintiff had become extinguished for one reason or another. It may well be that on another presentation of the matter, the Court of Appeals may overrule the Yellow Cab Company case, in which a conclusion was reached without a thorough discussion. In the meantime, however, the Yellow Cab case is binding on this Court, and no contribution may be allowed in the case at bar.
Accordingly, the counterclaim for contribution must be dismissed. Plaintiffs' motion for summary judgment is granted.