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Bush v. Bush

Decided: June 2, 1967.

JUDY BUSH AND ELLEN BUSH, INFANTS, BY THEIR GUARDIAN AD LITEM BELLE BUSH, AND BELLE BUSH, INDIVIDUALLY, PLAINTIFFS,
v.
ARLEEN BUSH, DEFENDANT



Pindar, J.s.c.

Pindar

This is a motion for summary judgment by defendant Arleen Bush for dismissal of an action in negligence brought by her sisters Judy Bush and Ellen Bush, by their guardian ad litem Belle Bush, for personal injuries sustained in an automobile accident. Belle Bush also sues individually as mother of the said infants for reimbursement of medical expenses and loss of services.

The facts succinctly stated are as follows: On November 28, 1963 defendant Arleen Bush, who was then 20 years of age, was driving a motor vehicle owned by and with the permission of her father Herman Bush, not a party to this action. Accompanying Arleen as passengers were her sisters Judy and Ellen, then 19 and 13 years old, respectively. All three sisters were members of the same household, living under the same roof with their mother and father. It is alleged that Arleen lost control of the vehicle because of a tire blowout resulting in striking a utility pole and both sisters being injured.

All three sisters were unemancipated at the time, and there is nothing before this court which changes that status except the incident of increased ages. The court is cognizant of the fact that the status of non-emancipation could change subsequent

to this application, and therefore this contingency must be considered in ruling upon the motion for summary judgment.

The motion includes all claims. Initially noticed is that the relief sought is directed to the doctrine of interfamily immunity in two aspects. First, Arleen is an unemancipated sister of Judy and Ellen and, as a matter of common law, immune from an action in simple negligence brought by them against her. Second, Arleen as a matter of law is immune from any action against her by Belle, her mother. Additionally presented is the mother's action for damages per quod. Can such action be brought by her, where the father, as head of the family, is under legal obligation to pay necessarily incurred family expenses. Finally, Arleen alleges as a matter of law that she is free of all negligence since the sole cause of the accident was a tire blowout, of which she had no notice or control. These stated contentions must, of course, be separately considered.

I

Whether an unemancipated sibling is immune from suit in simple negligence brought by another unemancipated sibling has never been precisely ruled upon by our courts. Diligent research by counsel and this court has uncovered no reported New Jersey case dispositive of the issue. Since this is a question of first impression, the court relies upon the applicable principles of law as determined in our State, Di Giendemonica v. Pennsylvania Reading Seashore Lines, 123 N.J.L. 296, 299 (E. & A. 1939), and upon decisions of our sister states that are in conformity with the general principles of law recognized by our courts. Stanbery v. Aetna Life Ins. Co., 26 N.J. Super. 498, 503 (Law Div. 1953). It is significantly apparent that the majority of our sister states hold that no bar exists which would prevent the proposed litigation between the unemancipated siblings.

In Rozell v. Rozell, 281 N.Y. 106, 22 N.E. 2 d 254, 123 A.L.R. 1015 (Ct. App. 1939), a 12-year-old boy sued his

16-year-old sister for injuries sustained while riding in an automobile negligently operated by her. The court held that while an action cannot lie between a parent and an unemancipated child, there being an interfamily immunity from suit, there is no immunity from suit as between unemancipated brothers and sisters. While cognizant of the fact that liability insurance was necessarily involved, the court nevertheless rested its decision upon the right of recovery premised upon injury. Later, in Becker v. Rieck, 19 Misc. 2 d 104, 188 N.Y.S. 2 d 724 (Sup. Ct. 1959), New York extended this wording to include the father's action against an unemancipated sibling to recover loss of services and medical expenses.

The Supreme Court of Wisconsin, in Munsert v. Farmers Mutual Automobile Ins. Co., 229 Wis. 581, 281 N.W. 671, 119 A.L.R. 1390 (1938), allowed a wrongful death action to be brought by the special administrator of an infant sibling against his 16-year-old brother, stating, "We perceive no sound reason for holding that a brother should not be liable to a brother for a tort committed upon him." See also Beilke v. Knaack, 207 Wis. 490, 493-494, 242 N.W. 176 (Sup. Ct. 1932).

Immunity of suit between unemancipated siblings has also been uniformly rejected in Emery v. Emery, 45 Cal. 2 d 421, 289 P. 2 d 218 (Sup. Ct. 1955); Overlock v. Ruedemann, 147 Conn. 649, 165 A. 2 d 335 (Sup. Ct. Err. 1960); Silverman v. Silverman, 145 Conn. 663, 145 A. 2 d 826 (Sup. Ct. Err. 1958); Midkoff v. Midkoff, 201 Va. 829, 113 S.E. 2 d 875, 81 A.L.R. 2 d 1150 (Sup. Ct. App. 1960). And see Prosser, Law of Torts (2 d ed. 1955), ยง 101, p. 677.

In support of defendant's contention that no cause of action can be maintained by her sisters, counsel relies on Hastings v. Hastings, 33 N.J. 247 (1960), wherein that court rejected an effort to overturn precedent that an unemancipated minor child could not maintain a cause of action against her father for personal injuries caused by his simple negligence in the driving of ...


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