JOHN W. BARRON, Jr., Special Justice.
Janice Attwood, individually and as mother and next friend of Richard Breck Attwood, brings this appeal contending that the court below erred in dismissing her complaint against the estate of Richard Breckenridge Attwood. The suit was dismissed pursuant to Arkansas Rules of Civil Procedure, Rule 12(b)(6) for failure to state facts upon which relief can be granted. The lower court found that the family immunity doctrine was a bar to the claim asserted in the complaint.
In her complaint, appellant pled that she and Richard Breckenridge Attwood were divorced some time prior to July 3, 1979 and that he had visitation rights with respect to their child, Richard Breck Attwood. Appellant further pled that on July 3, 1979, Richard Breckenridge Attwood became willfully and intentionally intoxicated and drove a vehicle while so intoxicated with the child as a passenger and also drove at a speed greatly in excess of the posted speed limit, thereby causing the vehicle to leave the roadway and overturn, killing himself and injuring the child, Richard Breck Attwood.
On appeal, appellant urges reversal on two grounds:
As we have held many times that we do not rule on constitutional questions if the litigation can otherwise be resolved, we first consider the second of appellant's two points for reversal. County of Searcy v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968).
Appellee's motion to dismiss, filed pursuant to Arkansas Rules of Civil Procedure, Rule 12(b)(6), is essentially the same as filing a demurrer before enactment of the new rules. A demurrer admits any well pled fact. Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980); L. A. Green Seed Company of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969). We, therefore, assume for purposes of resolving the issues presented herein that the facts recited in the complaint are true.
This appeal again brings into focus the family immunity or parental immunity doctrine. This Court in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), held that an unemancipated minor child could not sue a parent for an involuntary tort. The court reasoned that to permit such a suit would interfere with the parent's authority over the child and would, therefore, encourage disobedience. This in turn would interfere with the family harmony. When next called upon to rule on this doctrine, this Court refused to extend the doctrine to include an intentional tort committed by an adoptive father on his adopted son. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245 (1939).
This Court has stated its belief that it approves of the so-called family immunity doctrine because it promotes family harmony, preserves discipline and prevents fraud and collusion. It should be pointed out, however, that since Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957) spouses have been permitted to sue each other for unintentional torts. In that case, this Court expressly rejected the argument that preservation of family harmony required the prohibition of suits between spouses. It is interesting to note that the Arkansas Legislature has never seen fit to change the law permitting such suits. It is also noteworthy that brothers can sue sisters and adult or emancipated children can sue their parents. So perhaps more appropriately this should be called the parental immunity doctrine.
A review of cases in various jurisdictions around the country pertaining to the parental immunity doctrine reveals that there has been a change in the philosophy of this country and that the right of the individual to be free from injury is perhaps paramount in many instances to the reasons behind the parental immunity doctrine. Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1970). This was stated in Black v. Solmitz, 409 A.2d 634 (Me.1979) in the following manner:
That such a trend has mushroomed is evidenced by the fact that thirteen states have now abrogated the doctrine at least insofar as motor vehicle accidents are concerned.
In addressing the issue presented herein, we assume the following allegations to be true. Appellant and the child's father were divorced and the father was exercising his visitation privilege. While so doing, he willfully and intentionally became intoxicated and drove his vehicle while so intoxicated with his child as a passenger and did drive at a speed greatly in excess of the speed limit and of what was prudent and thereby caused the vehicle to leave the roadway and overturn, causing his death and injury to the child. Certainly these allegations if true are tantamount to willful and wanton conduct. This brings us to the issue at hand. That is, should the parental immunity doctrine preclude a child from suing a parent for willful and wanton conduct? This Court in Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964) described such conduct as follows:
Willful and wanton conduct is also defined in AMI Civil 2d 401 as follows:
The issue of whether the parental immunity doctrine should bar a suit by an unemancipated minor against a parent for a willful tort is one of first impression in Arkansas, but has been addressed in other jurisdictions. Every case we have found has made such conduct an exception to the
The issue of preserving the right of the parent to discipline his minor children was addressed in Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955). That court noted that the parent's right to discipline his minor children is the basic policy behind the rule. In commenting on this, the court stated as follows:
We believe this to be an excellent statement as to the limits of a parent's right to discipline.
In Nudd, supra, it was acknowledged that for the sake of family harmony, suits for negligence should be prohibited but that public policy also required that suits for willful and wanton misconduct should be permitted. The court stated its position as follows:
The fact that willfullness has to be proven should preclude fraud or collusion from being a problem. We think it is clear that a willful tort is beyond the scope of the parental immunity doctrine as it is applied in Arkansas. This Court in Ellis, supra, stated that if a person perpetrates a willful tort which injures a person, a constructive intent to injure the person will be imputed. That case also points out that willful conduct is more than mere negligence. This distinction is also described in Cowgill, supra, wherein the court stated:
For the reasons stated above, we conclude that an unemancipated minor may sue his parent for a willful tort.
The judgment is reversed and remanded.
ADKISSON, C.J., and GEORGE ROSE SMITH and HICKMAN, JJ., dissent.
HOLT, J., not participating.
GEORGE ROSE SMITH, Justice, dissenting.
Our only three precedents discussing the family immunity doctrine have adhered to a simple and clear distinction: A child can maintain a suit against his parent or against a person in loco parentis for an intentional or voluntary injury to the child, but not for an unintentional or involuntary injury. In the pioneer case, involving simple negligence, we held the action was not maintainable. Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938). In the next instance we upheld an action based upon an adoptive father's having deliberately poisoned his adoptive son—an intentional tort. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245, 122 A.L.R. 1348 (1939). In the third case, involving mere negligence, we refused to abandon the family immunity doctrine despite arguments similar to those now presented. Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980).
In today's opinion the present majority quotes in support of its conclusion dictum from one Arkansas case—dictum because it was a guest statute case presenting only simple negligence, with the judgment being reversed and the cause being dismissed. Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964). But the controlling distinction laid down by our two guest statutes is not that between unintentional and intentional torts. Instead, it is the difference between simple negligence and willful and wanton misconduct in disregard of the rights of others. Ark.Stat.Ann. §§ 75-913 and -915 (Repl.1979). For that reason guest statute cases should not be even persuasive precedents with regard to the family immunity rule.
In the case at bar we can feel sure from the record before us that this father did not drive his car with the intention of killing himself and injuring his child. Had the father lived it is doubtful that any cause of action against him would have been asserted in behalf of his injured son. That is so because the family immunity rule fairly represents the attitude that prevails within the overwhelming majority of American families—an attitude so firmly held that even human greed will not induce the members of the family to engage in the mockery of a collusive lawsuit having as its sole purpose the enrichment of the family and its lawyers at the expense of an insurance company. Here, however, the situation is not typical, because the father is dead. Even so, the decision may become a precedent, a precedent so fundamentally wrong and so contrary to our prior cases that I cannot let it go into the books without protesting it as best I can.
ADKISSON, C.J., and HICKMAN, J., join in this dissent.