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ATTWOOD v. ESTATE OF ATTWOOD5/24/1982
hild 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 quote's 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 he 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.
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