438 F.2d 236 (5th Cir. 1971), 29328, Barnwell v. Cordle

Docket Nº:29328.
Citation:438 F.2d 236
Party Name:Howard BARNWELL, Jr., a Minor, by next friend, Patricia Barnwell, Plaintiff-Appellant, v. Sam L. CORDLE, Administrator of the Estate of Howard Barnwell, Sr., Deceased, Defendant-Appellee.
Case Date:February 04, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 236

438 F.2d 236 (5th Cir. 1971)

Howard BARNWELL, Jr., a Minor, by next friend, Patricia Barnwell, Plaintiff-Appellant,


Sam L. CORDLE, Administrator of the Estate of Howard Barnwell, Sr., Deceased, Defendant-Appellee.

No. 29328.

United States Court of Appeals, Fifth Circuit.

February 4, 1971

Rehearing Denied April 13, 1971.

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A. Cecil Palmour, Cook & Palmour, Summerville, Ga., Morgan & Garner, Chattanooga, Tenn., for plaintiff-appellant.

John T. Minor, III, Minor, McCamy, Phillips & Tuggle, Dalton, Ga., Joseph E. Loggins, Summerville, Ga., James D. Maddox, Matthews, Maddox, Walton & Smith, Rome, Ga., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, WISDOM and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This appeal involves the question of whether the doctrine of parental immunity as articulated by the Georgia courts can be invoked by the estate of a deceased parent to prevent an unemancipated child from recovering damages for injuries sustained in an automobile accident as a result of the deceased parent's negligence. The district court decided that the doctrine could be invoked by the estate and, accordingly, granted the administrator's motion for summary judgment. We reverse and remand.

Howard Barnwell, Jr., the appellant, was seriously injured when the automobile in which he was riding and which was being driven by his father, Dr. Howard Barnwell, Sr., left an Interstate highway near Calhoun, Georgia, in the early morning hours of December 26, 1967, while he, his father, and his sister were returning to Chattanooga, Tennessee, from a visit to Dr. Barnwell's father's farm in Edneyville, North Carolina. Dr. Barnwell died as a result of the accident, and Howard Barnwell, Jr., age 20, was rendered a permanent quadriplegic. 1

In his two-count complaint, the appellant alleges that his father was guilty of both ordinary negligence and gross negligence and seeks to overcome the bar of parental immunity by alleging the presence of public liability insurance and that the appellant had become an emancipated minor as a result of the accident since it also resulted in the death of his father. The district court granted the administrator's motion to strike the allegations regarding the presence of liability insurance and granted summary judgment on the issue of parental immunity.

The only reported decision applying Georgia law to the precise question here 2 is a 1966 decision of this court, Union Bank & Trust Co. of Mt. Holley, N.J. v. First Nat. Bank, 5 Cir., 1966, 362 F.2d 311, in which the court, speaking through Judge Tuttle in a cogent and scholarly opinion, took note of the recent developments in Georgia dealing with the doctrine of charitable immunity in tort where a policy of liability insuranc is held by the charitable institution, 3 and reasoning by analogy, held:

We are impelled to conclude that the erosion by the Georgia courts of the charitable exemption doctrine long

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made applicable to charitable institutions, forecasts similar action by the State court with respect to the right of a child to sue the estate of its deceased parents where a public liability policy is extant, notwithstanding the continued validity of the nonsuability principle when the facts remain as they were in the Bulloch case.

Where, in addition to the existence of a public liability policy, there can be no interference with the family tranquility or unity by reason of a suit against deceased parents, we think the Georgia courts would apply the same modifying influence to the no-liability principle in actions of this kind that it has applied in relation to suits against charitable trusts. 362 F.2d at 316.

The court did not reach the question of whether the estate could invoke the immunity without regard for the presence of liability insurance.

While we agree with the result in Union Bank, we feel that a cloud was placed on the correctness of its rationale by the recent reaffirmation of dicta from the early, leading case of Bulloch v. Bulloch, 45 Ga.App. 1, 10, 163 S.E. 708 (1931), in Harrell v. Gardner, 115 Ga.App. 171, 175, 154 S.E.2d 265, 268 (1967), where the court said:

The recent case in the United States Court of Appeals, 362 F.2d 311 (5 Cir.), Union Bank & Co. of Mt. Holley v. First Nat. Bank & Trust Co., allowing a similar action, was based primarily upon the point that the deceased parent was covered by liability insurance (alleged in the petition). In Bulloch v. Bulloch, 45 Ga.App. 1, 10, 163 S.E. 708, this court stated: 'Something has been said of liability insurance, but the petition shows nothing as to such insurance, and we cannot presume its existence. Moreover, the fact that the defendant father may have carried liability insurance upon his automobile would be irrelevant, since liability must exist before such insurance would be applicable, and a policy of insurance could not establish that fact'.

In light of this, it is necessary, in reaching our decision, to review the development of the Georgia doctrine of parental immunity and the foundations which support it.

The immunity of parents from liability for torts committed against their children is clearly not absolute in Georgia. In the leading Georgia case of Bulloch v. Bulloch, supra, the court held that an unemancipated minor cannot maintain an action against his father for personal injuries caused by the father's negligence 4 on the principal ground that the maintenance of such an action would be unduly detrimental to the authority and obligations of the parent with respect to his children as expressly provided for in the positive statutory law of Georgia, 5 but also on

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grounds of preventing fraud, harassment and preserving the financial integrity of the family. 6 In doing so, the court strongly suggested that the immunity is limited by the public policy expressed in Georgia statutory law regarding parental authority.

We have referred to section 3021 of the Civil Code which states the conditions upon which the parental authority may be lost, and it may be that in this section is to be found the dividing line between liability and no liability in cases of this kind. In other words, if the father should so violate his obligations as to work a forfeiture of his right of control, as by cruelty or otherwise, and the child sustains injury thereby, may not the child maintain an action against the father for the legal wrong thus committed? It is abhorrent to think that he could not be sued for the 'heinous offense of rape,' and all other acts of cruelty, regardless of degree, would seem logically to stand upon the same footing as regards the question of liability. 45 Ga.App. at 10, 163 S.E. at 712.

The approach taken in Bulloch is consistent with the decision of the preceding year in Farrar v. Farrar, 41 Ga.App. 120, 152 S.E. 278 (1930), which held that there is no immunity running to the parent of an adult child who continues to live in the home of his parents, because 'there is no legal obligation resting upon parents to support a child after it reaches its majority, nor is there any legal obligation resting upon a child, after reaching majority, to remain in the home of the parents and perform, in return for the care and attention given by them, the duties usually performed by a child who is unemancipated'.

The dicta in Bulloch to the effect that there is no immunity where the parent commits a wilful or malicious tort against his child and by the same act forfeits his right of parental authority 7 became law in Georgia with the decision in Wright v. Wright, 85 Ga.App. 721, 70 S.E.2d 152 (1952), where an unemancipated minor was allowed to recover damages from her father for personal injuries sustained in an automobile accident caused by his drunkenness. See also, Buttrum v. Buttrum, 98 Ga.App. 226, 105 S.E.2d 510 (1958).

In the case of Stapleton v. Stapleton, 85 Ga.App. 728, 70 S.E.2d 156 (1952), the Georgia Court of Appeals held that an unemancipated child may recover against his parent's employer for injuries sustained by the child due to the negligence of the parent while acting within the service of the employer, although the child could not recover from the parent, relying on such authorities as Chase v. New Haven Waste etc. Corp., 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497; Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293; Mi-Lady Cleaners v. Mrs. Daniel, 235 Ala. 469, 179 So. 908; Wright v. Wright, 229 N.C. 503, 543, 50 S.E.2d 540; and 1 Restatement...

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