37 Wash. 242, 79 P. 788 ROLLER V. ROLLER (S. Ct. 1905).

      LULU ROLLER, by E. C. Million, her Guardian ad Litem,
                     E. W. ROLLER, Appellant

                          No. 5086
37 Wash. 242, 79 P. 788
                    February 27, 1905, Decided

Appeal from a judgment of the superior court for Skagit county,
Joiner, J., entered January 14, 1904, upon findings in favor of
the plaintiff, after a trial before the court without a jury, in
      an action for damages for the commission of rape.

1. Parent and Child -- Wrongs of Parent -- Damages -- Action by
Child Against Parent -- Rape. A minor child cannot maintain an
action for damages against a parent for injuries inflicted while
the family relation exists, and the fact that the wrong was the
heinous offense of rape, for which the father was convicted and
imprisoned, does not, in effect, emancipate the daughter or
authorize the action.

Henry McLean, for appellant.
Gable & Seabury, and Million & Houser, for respondent.

RUDKIN, ROOT, and CROW, JJ., took no part. DUNBAR
{*243} The defendant was convicted of the crime of rape,
committed upon his minor daughter, Lulu Roller, and was sentenced
to a term in the penitentiary at Walla Walla. This action was
commenced by the said Lulu Roller for the purpose of recovering
from said defendant, damages for said rape in the sum of $ 2,000,
and the homestead of the defendant upon which the minor children
of the defendant were residing was attached. The said Lulu Roller
at the time of the commencement of this action was fifteen years
old. The homestead in dispute was the community property of
Roller and his deceased wife, Emma Roller. The defendant
interposed a demurrer to the complaint of the plaintiff, on the
ground that it did not state facts sufficient to constitute a
cause of action in that the plaintiff, being the minor child of
defendant, living with him and unemancipated, had no right to sue
for a tort committed by the parent upon the child. Motion was
made to discharge the attachment, (1) because the land was the
homestead exempt under the state law, and (2) because the land
was exempt under the federal statute which exempts such property
from debts contracted before the issuance of the patent. The
motion to discharge the attachment was overruled. Upon the trial
of the cause, judgment was entered in favor of the plaintiff for
the sum of $ 2,000.
It is assigned that the court erred in overruling the demurrer of
the appellant to the amended complaint of the respondent, and in
overruling the motion to dissolve the attachment. It is the
contention of the appellant that a minor child can not sue a
parent for damages arising upon tort; that such actions are
against public policy, and not permitted by law. The rule of law
prohibiting suits between parent and child is based upon the
interest that society has in preserving harmony in the domestic
relations, an interest which has been manifested since the {*244}
earliest organization of civilized government, an interest
inspired by the universally recognized fact that the maintenance
of harmonious and proper family relations is conducive to good
citizenship, and therefore works to the welfare of the state.
This view, in effect, is not disputed by the respondent, who
admits the general proposition that the domestic relations of the
home and family fireside can not be disturbed by the members
thereof by litigation prosecuted against each other for injuries,
real or imaginary, arising out of these relations; but he asserts
that the law has well defined limitations, and that every rule of
law is founded upon some good reason, and the object and purpose
intended to be attained must be looked to as a fair test of its
scope and limitations; that in the case at bar the family
relations have already been disturbed, and that by action of the
father the minor child has in reality been emancipated; that the
harmonious relations existing have been disturbed in so rude a
manner that they never can be again adjusted, and that therefore
the reason for the rule does not apply. There seems to be some
reason in this argument, but it overlooks the fact that courts
in determining their jurisdiction or want of jurisdiction rely
upon certain uniform principles of law, and, if it be once
established that a child has a right to sue a parent for a tort,
there is no practical line of demarcation which can be drawn; for
the same principle which would allow the action in the case of a
heinous crime, like the one involved in this case, would allow an
action to be brought for any other tort. The principle permitting
the action would be the same. The torts would be different only
in degree. Hence, all the disturbing confusion would be
introduced which can be imagined under a system which would allow
parents and children to be involved in litigation of this kind.
Outside of these reasons which affect public policy, {*245}
another reason, which seems almost to be reductio ad absurdum, is
that, if a child should recover a judgment from a parent, in the
event of its death the parent would become heir to the very
property which had been wrested by the law from him. In addition
to this, the public has an interest in the financial welfare of
other minor members of the family, and it would not be the policy
of the law to allow the estate, which is to be looked to for the
support of all the minor children, to be appropriated by any
particular one. At common law it is well established that a minor
child can not sue a parent for a tort. It is said by Cooley on
Torts, p. 276, under title of "Wrongs to a Child": "For an injury
suffered by the child in that relation no action will lie at the
common law." And this has been held to be analogous to coverture,
where a husband or wife is forbidden to sue the other spouse for
torts or wrongs committed upon them to their damage during
coverture, even refusing the action after the relation, by a
divorce, has ceased to exist. See Abbott v. Abbott, 67 Me. 304,
which is simply an expression of the universal law on that
subject. See also Bandfield v. Bandfield, 117 Mich. 80.
Parallel Citations: 67 Me. 304, 24 Am. Rep. 27; 117 Mich. 80, 75
N.W. 287, 72 Am. St. 550, 40 L.R.A. 757.
Mr. Schouler, in his work on Domestic Relations, 275, after
discussing the proposition of filial relations, says:
"With reference to a blood parent, however, all such litigation
seems abhorrent to the idea of family discipline which all
nations, rude or civilized, have so steadily inculcated, and the
privacy and mutual confidence which should obtain in the
household. An unkind and cruel parent may and should be punished
at the time of the offence, if an offender at all, by forfeiting
custody and suffering criminal penalties, if need be; but for the
minor child who continues, it may be for long years, at home and
unemancipated, to bring a suit, when arrived at majority, free
from {*246} parental control and under counter-influences,
against his own parent, either for services accruing during
infancy or to recover damages for some stale injury, real or
imagined, referable to that period, appears quite contrary to
good policy. The courts should discourage such litigation; * *."
The text in this case goes beyond the circumstances of the case
at bar where the action was brought during the minority of the
plaintiff. As will be seen by the extract above quoted, it is
even forbidden after the child becomes of age if the injury sued
upon is referable to the period of minority. So well is this
principle of the law understood that there have been very few
attempts to inaugurate actions of this kind. The only one to
which we are referred by brief of counsel, or which we have been
able by independent investigation to discover, which seems to be
in point, is Hewlett v. George, 68 Miss. 703, where it was held
that a parent is not civilly liable to a child for personal
injuries, inflicted during minority and where the relation of
parent and child with its mutual obligations exist. This was an
action by the daughter against the mother for wrongful
incarceration in an insane asylum, and was brought after the
marriage of the daughter who, at the time of the alleged
injuries, was separated and living away from her husband -- a
much stronger case it will be seen in favor of entertaining an
action than the one at bar, so far as the relations of the
parties were concerned. The court, in refusing the remedy, said:
"The peace of the family, and of the families composing society,
and a sound public policy, designed to subserve the repose of
families and the best interests of society, forbid to the minor
child a right to appear in court in the assertion of a claim to
civil redress for personal injuries suffered at the hands of the
parent. The state, through its criminal laws, will give the minor
child protection from parental violence and wrongdoing, and this
is all the child can be heard to demand."
{*247} There being no authority at common law for such an action,
and it not being claimed that there is any statutory provision
for an action of this kind, we are of the opinion that the action
should not have been entertained, and that the demurrer to the
complaint should have been sustained. This conclusion renders
unnecessary a discussion of the other questions involved.
Parallel Citation: 68 Miss. 703, 9 South. 885, 13 L.R.A. 682.
The judgment is therefore reversed with instructions to the lower
court to sustain the demurrer to the complaint.