Minkin v. Minkin , 336 Pa. 49 ( 1938 )

I am unable to agree with the conclusion of the majority that an unemancipated minor can maintain a tort action against his parent. As I understand the majority opinion, the conclusion is reached that such a suit can be maintained, because, in their view, the public policy which forbade such a suit has been set aside by the death statutes of 1851 and 1855. It has been the opinion of bench and bar since the passage of these acts, that is to say for almost a century, that such an action does not lie, because public policy, jealous of the maintenance of good will in the family relation, denied it. It seems to me that, in concluding otherwise, my brethren who differ in view from me must be of the belief that no public policy can now stand against the statutes, but there are, at least there have been, instances in which we have maintained until quite recently the rule that, notwithstanding these statutes, public policy forbids the pursuit of death actions against certain classes of tort-feasors, as in the cases of public charities, schools, religious institutions and municipal corporations carrying on a governmental function, so that it is not for all torts resulting in death that actions can be maintained: Devers v. Scranton City, 308 Pa. 13,161 A. 540; Carlo v. Scranton School Dist., 319 Pa. 417, 179 A. 561. The public policy forbidding actions for negligence by unemancipated minor children against parents has quite recently (March 1, 1938) been fully discussed by the Supreme Judicial Court of Massachusetts in Luster v. Luster, ___ Mass. ___,13 N.E.2d 438, which, calling attention to many cases, held that public policy forbids such suits.^*

It would seem that there is some inconsistency in the majority view that the death statutes set aside the public policy. It recognizes this effect so far as the maintenance of the action is concerned, but denies the effect of the statute which would give damages to the mother by its express terms. The ruling is that she may not recover in damages from herself, although the statute expressly confers upon her a right of recovery. The opinion in this respect, therefore, upholds the public policy that a person may not recover damages for his own wrong.

In my view, the death statute was passed, not to overturn, but in subservience to the common law public policy. Statutes in derogation of the common law must be strictly construed and only such modifications will be recognized as the statute clearly and definitely prescribes: Heaney v. Mauch Chunk Boro.,322 Pa. 487, 185 A. 732; Wilson v. Wilson, 126 Pa. Super. 423,191 A. 666; Petit v. Fretz's Executor, 33 Pa. 118.

I would not make the departure from what I believe to be a most sound public policy leading to the maintenance of the family relation. I cannot seal with my approval that which I believe will have a tendency to disrupt it until the legislature, which declares the public policy of the State, shall overturn that which has existed time out of mind by giving to unemancipated minors the right to sue their parents for their alleged negligence.

Mr. Justice DREW and Mr. Justice BARNES concur in this dissent.

^* To the many cases cited by the Massachusetts court, we add:Briggs v. City of Phila., 112 Pa. Super. 50, 170 A. 871;Martens v. Martens, 11 N.J. M. 705, 167 A. 227; Damiano v.Damiano, 6 N.J. M. 849, 143 A. 3; Mannion v. Mannion, 3 N.J. M. 68, 129 A. 431; Krohngold v. Krohngold, 181 N.E. 910 (Ohio App.); Lund v. Ulson, 183 Minn. 515, 237 N.W. 188;Bulloch v. Bulloch, 456 Ga. A. 1, 163 S.E. 708; Lusk v. Lusk,113 W. Va. 17, 166 S.E. 538; Restatement, Torts, Vol. 1, p. 344, Topic 2, "Privilege to Discipline Children." The cases cited in the Massachusetts decision are from twenty States.