For affirmance: Chief Justice Weintraub and Justices Jacobs, Proctor and Schettino. For reversal: Justices Francis, Hall and Haneman. The opinion of the Court was delivered by Proctor, J. Francis, J. (dissenting). Justices Haneman and Hall join in this dissent.
[56 NJ Page 501] This appeal involves the question of intrafamily tort immunity. On October 16, 1967, an automobile owned and operated by the plaintiff, Carroll E. France, Jr. and a tractor-trailer, owned by the defendant, A.P.A. Transport Corp., and operated by its employee William N. Wilson, were involved in a collision. Plaintiff's wife, who was killed
in the accident, was a passenger along with the couple's two unemancipated children. Two actions were brought. In the first, Carroll E. France, Jr. and his two children by their father as guardian ad litem sued the defendants for personal injuries and property damage. In the second action, Carroll E. France, Jr., as the administrator of the estate of his wife (she having died intestate) and as administrator ad prosequendum sued the defendants under the the Executors and Administrators Act (N.J.S.A. 2A:15-3) and the Wrongful Death Act (N.J.S.A. 2A:31-1 et seq.). The action for wrongful death was for the benefit of the husband and the two surviving children. The defendants counterclaimed for contribution against the plaintiff, individually, for all sums found due to the estate of his wife under the survival and death action. The plaintiff moved for summary judgment on the claim for contribution contending that it was barred by the doctrine of intra-family immunity. The trial court denied the motion and the Appellate Division denied leave to appeal. We granted plaintiff leave to appeal from the Appellate Division's denial.
The present suit involves the validity of both interspousal and parent-child tort immunity. Because of our decision in Immer v. Risko, 56 N.J. 482 (1970), decided today, it is unnecessary to discuss interspousal immunity further. If there were no minor children involved in this case, defendants would be entitled, under Immer, to assert their counterclaim for contribution against the plaintiff under the Joint Tortfeasors Contribution Law. N.J.S.A. 2A:53A-1 et seq. Cf. Kennedy v. Camp, 14 N.J. 390, 395 (1954). But, under Heyman v. Gordon, 40 N.J. 52 (1963), defendants' claim would still be barred by the doctrine of parent-child immunity.*fn1
The doctrine of parent-child immunity was first articulated in 1891 by the Mississippi Supreme Court in Hewlett v. George, 68 Miss. 703, 9 So. 885. There the court refused to allow a child to maintain a false imprisonment action against her mother for maliciously confining her in an insane asylum. The court cited no authority but based its decision on the grounds that the peace of society and repose of families forbid a minor child to sue his parent for personal injuries. Hewlett was followed by McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) and by Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). In the Tennessee case, the court denied the minor the right to sue her parents for cruel and inhuman treatment, and in the Washington case, the court refused to entertain a suit by a minor against her father who had raped her.
These three decisions were later called "the great trilogy" upon which the American rule of parent-child tort immunity is based. Akers & Drummond, "Tort Actions Between Members of the Family -- Husband & Wife -- Parent & Child," 26 Mo. Law Rev. 152, 182 (1961). This rule, which was not previously established in either England or this country, was adopted by this state in the 1935 decision of Reingold v. Reingold, 115 N.J.L. 532 (E. & A.). In Reingold, a nineteen year old unemancipated child was barred from recovering damages for injuries suffered while a passenger in an automobile owned by her stepmother and negligently operated by her father. The opinion relied on Hewlett and the North Carolina case of Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135 (1923), which also relied on Hewlett. The philosophy behind the immunity doctrine articulated by the court was that of preserving the family relationship. Unlike interspousal immunity, there is no question of any statutory bar to suits between parent and child. Accordingly, the only question we need consider on this appeal is whether Reingold and the subsequent cases which have reaffirmed its principle (e.g., Hastings v. Hastings, 33 N.J. 247 (1960); Heyman v. Gordon, 40 N.J. 52
(1963); Franco v. Davis, 51 N.J. 237 (1968)), should remain the law of this State. In the last three decisions, this Court has been divided four to three in upholding the immunity.
It has been frequently pointed out by critics of the doctrine that parent-child immunity has numerous exceptions and qualifications and therefore leads to anomalous results. E.g., 1 Harper & James, The Law of Torts, 647 et seq. (1956); Prosser, The Law of Torts, 887 (3d ed. 1964). For example, contract and property actions between minors and their parents are freely entertained by the courts. In re Flasch, 51 N.J. Super. 1, 29 (App. Div.) certif. denied, 28 N.J. 35 (1958); Alling v. Alling, 52 N.J. Eq. 92 (Ch. 1893); Smith v. Smith, 38 Cal. App. 388, 176 P. 382 (1918). In addition, our courts have held that there is no immunity between a child and his grandparents, Cwik v. Zylstra, 58 N.J. Super. 29 (App. Div. 1959), and even allowed an unemancipated infant to sue her grandmother for injuries resulting from the grandmother's negligence, where the grandparents were the sole support of the abandoned infant and where they stood in loco parentis. Wilkins v. Kane, 74 N.J. Super. 414 (Law Div. 1962). And there is no doubt that an emancipated child can sue his parents for a negligent wrong. Finally, our courts have permitted an unemancipated minor to sue his father's estate for injuries sustained in an accident in which the father was killed. Palcsey v. Tepper, 71 N.J. Super. 294 (Law Div. 1962). See also Brennecke v. Kilpatrick, 336 S.W. 2 d 68, 69-72 (Mo. Sup. Ct. 1960). Cf. Long v. Landy, 35 N.J. 44 (1961). Thus, it is apparent that there are a large number of judicially fashioned qualifications and exceptions to the parental immunity doctrine.
The reasons given for maintaining the immunity doctrine in ordinary negligence actions vary. It has been said that such actions would deplete the family exchequer, Roller v. Roller, supra, would encourage fraud and collusion, Hastings v. Hastings, supra, would disrupt domestic harmony, Reingold
v. Reingold, supra, would interfere with parental care, discipline and control, Rodebaugh v. Grand Trunk W.R.R., 4 Mich. App. 559, 145 N.W. 2 d 401, 403 (1966); but see Goller v. White, 20 Wis. 2 d 402, 122 N.W. 2 d 193 (1963). In this State the immunity was originally based on the preservation of family harmony, Reingold v. Reingold, supra, but recent cases have emphasized the possibilities for collusion and fraud. E.g., Hastings v. Hastings, supra. Thus, the doctrine as it stands today is supported by the same rationale as interspousal immunity, and what we have said in Immer, supra, is equally applicable here. As we said there, the widespread use of ...