The opinion of the court was delivered by: HOLTZOFF
The question arises out of the following facts. The minor plaintiff Tyresa Dennis was a passenger in an automobile driven by her mother, the plaintiff Dorothy L. Dennis, and owned by her father, the plaintiff Robert Dennis. The vehicle is said to have been in a collision with another automobile driven by the defendant Louis Lee Walker and owned by the defendant Thomas H. Jackson. All three occupants of the plaintiff's vehicle brought suit against the defendants on the ground that the injuries sustained by them were caused by the negligence of the defendant Louis Lee Walker. In their answer to the complaint the defendants interposed a counterclaim for contribution against the adult plaintiffs, asserting that injuries sustained by the minor plaintiff were caused, in part at least by the contributory negligence of the adult plaintiffs.
The plaintiffs move for summary judgment
on the ground that no claim for contribution may be maintained by the defendants against the infant plaintiff's parents because parents were immune from suit by their minor unemancipated child. They contend further that the right of contribution as between joint tort feasors is limited in the District of Columbia to a tort feasor who is jointly liable with the defendant to the original plaintiff. Counsel for the defendants responds by urging this Court to adopt what he argues is the more progressive doctrine, namely, that the immunity of parents from suit in tort by their infant children should be abrogated.
We shall consider separately the major and the minor premises of this syllogism. Taking up first, the minor premise, the problem is whether immunity of parents to suit in tort by their minor children should be adopted or rejected in the District of Columbia. We find that this question has never been authoritatively determined in this jurisdiction. In the absence of any appellate court decision, this Court is, of course, free to initiate and adopt a rule in the first instance. In fact, in bygone days, the common law developed very largely from decisions by trial judges. In view of the importance of this question, this Court found it desirable to make an independent study of the subject.
The common law originally did not recognize any parental immunity from suit in tort by a minor unemancipated child. It developed in this country toward the end of the Nineteenth Century. The earliest decision appears to be that of the Supreme Court of Mississippi. In Hewellette v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, the Court indicated that no action for damages in tort may be maintained by a minor child against a parent so long as the latter was under obligation to care for, guide and control the child. The Court added that the peace of society and of families, as well as a sound public policy designed to subserve the repose of families and the best interests of society, bar the minor child from asserting a claim to civil redress for personal injuries suffered at the hands of the parent. Many other States followed and reached the same result. Among the numerous decisions on this point are Norfolk So. Railway Co. v. Gretakis, 162 Va. 597, 174 S.E. 841; Purcell v. Frazer, 7 Ariz.App. 5, 435 P.2d 736; Downs v. Poulin (Me.) 216 A.2d 29. One of the latest cases is Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718, where the immunity of a parent against suit for damages in tort on the part of a minor child is reasserted. Chief Judge Desmond in the majority opinion referred to the settled New York rule that an unemancipated minor child has no right of action against his parents for non-wilful injuries, and made the following pointed observations (p. 474, 215 N.Y.S.2d p. 36, 174 N.E.2d p. 719):
"It is a direct application of a concept that cannot be rejected without changing the whole fabric of our society, a fundamental idea that is at the bottom of all community life. The basic principle is that children and parents form a unique kind of social unit different from all other groups."
A vigorous dissenting opinion was written by Judge Fuld, who ably aligns the arguments in favor of an abolition of the immunity, but he stood alone.
Special attention should be directed to the law of Maryland, in view of the fact that the District of Columbia, having been carved out of Maryland, derives its common law from that State. This point was not determined by any decision of the Court of Appeals of Maryland until 1950. It is interesting to observe, however, that previously the Court of Appeals for the District of Columbia was confronted with this question under the law of Maryland, Villaret v. Villaret, 83 U.S.App.D.C. 311, 169 F.2d 677. On a thorough review of the law of that State on cognate topics, the Court of Appeals in an opinion by Judge Wilbur K. Miller reached the conclusion that the law of Maryland would adopt the rule of parental immunity and would not permit a minor child to maintain an action against a parent for damages for personal injuries caused by the parent's negligence. This decision proved to be prophetic. Subsequently, in Mahnke v. Moore, 197 Md. 61, 77 A.2d 923, the Court of Appeals of Maryland reached that conclusion and formally adopted the doctrine, that a parent is not liable to damages to a child for a failure to perform a parental duty. At the same time it adopted an exception which will be hereafter discussed.
Certain limitations, which are not applicable to the case at bar, have been developed to the rule of parental immunity. First, the immunity does not extend to a parent's wanton or wilful misconduct, Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718; Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405; Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525; Teramano v. Teramano, 6 Ohio St.2d 117, 216 N.E.2d 375; Rodebaugh v. Grand Trunk Western R.R. Co., 4 Mich.App. 559, 145 N.W.2d 401; Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193; Aboussie v. Aboussie (Tex.Civ.App.), 270 S.W.2d 636; Mahnke v. Moore, supra. Second, the immunity does not apply if the child's injuries occurred while the parent was engaged in a business or employment not connected with his parental duty, Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149; Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640; Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16; Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538. Third, the immunity is not applicable to actions brought against the estate of a deceased parent, or on behalf of the estate of a deceased minor child, Palcsey v. Tepper, 71 N.J.Super. 294, 176 A.2d 818; Parks v. Parks, 390 Pa. 287, 135 A.2d 65; Harlan National Bank v. Gross (Ky.) 346 S.W.2d 482; Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766.
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 ...