For affirmance -- Justices Burling, Francis, Proctor and Hall. For reversal -- Chief Justice Weintraub, and Justices Jacobs and Schettino. The opinion of the court was delivered by Hall, J. Jacobs, J. (dissenting). Mr. Chief Justice Weintraub and Mr. Justice Schettino join in this dissent.
This appeal presents the single clear-cut question whether an unemancipated minor child may maintain a cause of action against her father for personal injuries caused by his simple negligence in the driving of an automobile in which she was a passenger when he was insured by a policy of liability insurance obligating his insurer to pay all sums for which he was legally obligated as damages because of injury to others arising out of the ownership, maintenance and use of the car.
The child was four years of age at the time of the mishap and had lived with her parents since birth. Her father was her sole support. The suit, prosecuted by her mother as guardian ad litem, was instituted in the Bergen County District Court. The complaint alleged that injuries to face and head resulted from the father's operation of the car in a careless manner so that he ran into the rear of a
vehicle in front of him, and specifically set forth the insurance coverage. The insurer was not made a party. There is no suggestion the car was being driven for business rather than family purposes.
The trial judge granted defendant's motion for summary judgment before answer filed, and plaintiff's appeal was certified on our own motion before argument in the Appellate Division.
There is no doubt that the ruling below is strictly in accord with the present law in this State as laid down in the leading case of Reingold v. Reingold, 115 N.J.L. 532 (E. & A. 1935). See also Radelicki v. Travis, 39 N.J. Super. 263 (App. Div. 1956). It may be noted, in view of the significance which plaintiff attaches to the actual existence of insurance in the instant case, that the court in Reingold expressly mentioned the common practice of carrying automobile liability insurance, showing it was not unaware of the bearing of that factor on the problem.
Plaintiff frankly concedes the controlling authority of Reingold and laudably further admits that no case holding to the contrary, where only simple negligence in a purely family relationship was involved, can be found in any other jurisdiction. Our own research confirms this and therefore extensive citations of outside authority become unnecessary. See cases collected in Annotation, 19 A.L.R. 2 d 423, 439 (1951). See also Prosser, Law of Torts (2 d ed. 1955), § 101, n. 61 and 77; Harper and James, The Law of Torts, § 8.11, n. 6 and 7 (1956). The case probably most often relied upon, as here, in contending for the opposite rule is Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 (Sup. Ct. 1930). There the factual situation was one of employment of the child by the defendant father in the latter's business, and an injury sustained in the course of employment. When a case exactly like ours came before the New Hampshire court, however, it refused to follow the reasoning and rationale of Dunlap and specifically held the child could not maintain the action. Levesque v.
Levesque, 99 N.H. 147, 106 A. 2 d 563 (Sup. Ct. 1954). See also Worrall v. Moran, 101 N.H. 13, 131 A. 2 d 438 (Sup. Ct. 1957).
Plaintiff's position is that we should now overturn the rule, and sole reliance in support of the contention is placed on expressions of theoretical opinion by text writers and authors of law review articles and notes during the past 30 years. While this court has not been hesitant or backward in overruling judge-made principles and concepts that have become outmoded in the light of modern thought, knowledge and conditions (see, for example, in the present term in the tort field, Faber v. Creswick, 31 N.J. 234 (1959); Smith v. Brennan, 31 N.J. 353 (1960); Duffy v. Bill, 32 N.J. 278 (1960); McAndrew v. Mularchuk, 33 N.J. 172 (decided June 28, 1960)), we have done so only when we have been thoroughly convinced that there is no longer any sound reason to retain the old rule and that essential justice compels a change. Sydney Grossman Hotel Corporation v. Lakewood Water Co., 27 N.J. 91 (1958). We, along with every other court of last resort apparently, are not so convinced in the present situation.
The question is not one of the absence of a duty of reasonable care owed by the father to his child, but rather of immunity from suit thereon. Matters of immunity must be determined, in the absence of specific legislation, on the basis of policy or, perhaps more accurately, on the weighing of competing policies. Here we think the weight of a combination of policies dictates the result. In situations other than the precise one before us, consideration of the policies in the light of the specific facts may lead to different results, but it will be time enough to announce a conclusion on them when the occasion is specifically presented to us.
A succinct expression of the policies which have led other courts to reach the result we adhere to in this case is found in a recent opinion of the Pennsylvania Supreme Court where it was called upon to decide the precise question for
the first time. The case is Parks v. Parks, 390 Pa. 287, 135 A. 2 d 65 (Sup. Ct. 1957), where it was said:
"It is a rule based on the sound principle of public policy to promote family unity and avoid family discord and disturbance, it prevents possible collusive action between parent and child in situations where the liability of either parent or child is covered by insurance and it is in line with the great weight of judicial authority ...