Brennecke v. Kilpatrick

• Decision Date: 13 June 1960
• Docket Number: No. 47577,47577
• Citation: 336 S.W.2d 68
• Parties: Judy Linn BRENNECKE, by her next friend, Ray Jesse Brennecke, and Ray Jesse Brennecke, Appellants, v. Billy KILPATRICK, Administrator of the Estate of Juanita Brennecke, Deceased, Respondent.
• Court: Missouri Supreme Court

Page 68

336 S.W.2d 68

Judy Linn BRENNECKE, by her next friend, Ray Jesse Brennecke, and Ray Jesse Brennecke, Appellants, v. Billy KILPATRICK, Administrator of the Estate of Juanita Brennecke, Deceased, Respondent.

No. 47577.

Supreme Court of Missouri, En Banc.

June 13, 1960.

Frederick E. Steck, Sikeston, for appellants.

Oliver & Oliver, by Allen L. Oliver, Cape Girardeau, for respondent.

ELMO B. HUNTER, Special Judge.

This is an action for personal injury. In Count One recovery is sought in the sum of $9,600 for Judy Linn Brennecke, a six year old minor, by her father, Ray Jesse Brennecke, as next friend. In Count Two Ray Jesse Brennecke is suing for $5,000 for the medical and hospital bills and impaired value of the services of Judy, his unemancipated daughter.

According to the petition, Ray Jesse Brennecke and Juanita Brennecke were husband and wife and Judy Linn was their daughter. They resided in the State of Oregon. Mrs. Brennecke and Judy were visiting relatives in Bollinger County, Missouri. While so visiting on September 14, 1956, Mrs. Brennecke was driving a 1949 Chevrolet automobile with Judy as a passenger, and the car collided with a gravel truck instantly killing Mrs. Brennecke and injuring Judy.

On October 20, 1958, Billy Kilpatrick was appointed administrator of the estate of Mrs. Brennecke by the Circuit Court of Lane County, Oregon. This suit is against the named administrator. Service was obtained under the 'Long Arm' statute.

The trial court sustained defendant's motion to dismiss and dismissed the petition with prejudice on the ground 'that an unemancipated minor child cannot recover against its parent where the action is based on negligence.'

More precisely stated, and as presented by the parties, the question raised on this appeal is whether a minor child by next friend can successfully sue the estate of her deceased parent in tort for the alleged negligence of that parent in the operation of an automobile resulting in the death of the parent and injury of the child.

This precise question is one of first impression in this court. ¹ Other jurisdictions have found it to be a difficult one, and there is considerable controversy as to the proper rule. A survey of their opinions will serve to illustrate the various considerations pro and con on the subject. ²

At the outset it is to be noted that insofar as is known no English case dealing with the question has ever been reported.

In this country prior to 1891 only three cases covering tort liability of parents and persons in loco parentis had appeared. They gave support to a liability result, at least as applied to cases of gross neglect, unreasonable punishment inflicted, mistreatment amounting to cruelty or constituting a public offense. Annotation, 19 A.L.R.2d 425.

In 1891 a Mississippi case appeared holding an unemancipated minor could not maintain against her (living) mother an action for false imprisonment because 'the peace of 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.' Hewlett v. George, 68 Miss. 703, 9 So. 885, 887, 13 L.R.A. 682.

Although exceptions and distinctions have been made the Mississippi case has been generally followed by most of the courts of this country that have ruled on the subject. 67 C.J.S. Parent and Child Sec. 61, pp. 787-790; 39 Am.Jur., Parent and Child, Sec. 90, p. 736. In Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29, we held that an unemancipated child could not maintain a suit against its living parent based on mere negligence in backing his authomobile so as to strike and injure the child.

The rule is not an absolute one as indicated in the Baker case, but generally exists or is adhered to only when the court concludes that to hold otherwise would seriously disturb the family relations and thus be contrary to public policy. The immunity of the parent usually has been predicated upon the premise that to allow such an action against a parent would either disrupt the tranquility of the domestic establishment or subvert parental control and discipline.

Nor is the rule without its numerous and serious critics. Prosser, Law of Torts, (2nd Ed.) Sec. 101, pp. 676-77, states: 'The courts which deny the action have relied heavily on the analogy of husband and wife, which seems quite inapplicable because of the difference in the common law concept of the relations, and the absence of statutes to be construed. In addition, they have invented much the same variety of unconvincing reasons as in the case of the marital relation. The danger of 'fraud' has been stressed, although it is difficult to see why it is any greater, as between the parties themselves, than in any other tort action involving an infant; and likewise the possibility that the defendant might inherit the amount recovered in case of the plaintiff's death, or that the family exchequer might be depleted at the expense of other children--neither of which reasons seems to outweigh the desirability of compensating the injured one for his damage. But again, as in the case of husband and wife, the chief reason offered is that domestic tranquillity and parental discipline and control would be disturbed by the action--and again on the theory that an uncompensated tort makes for peace in the family and respect for the parent, even though it be rape or a brutal beating, and even though the relation itself has been terminated by death before the suit. On this basis the action has been allowed where the child has been 'emancipated' by the parent's surrender of the right to his earnings and services, and to parental control. But none of these arguments has been held sufficient to bar an action by or against an unemancipated minor where property is involved, although they are all equally applicable in such a case; and an action for a personal tort has been permitted between minor brother and sister.' See, also, Annotation, Infant, Tort Action Against Parent, 122 A.L.R. 1352; Note, 64 Harv.L.Rev. 1208; Annotation, 19 A.L.R.2d p. 432; Annotation, Parent, Tort Action Against Child, 60 A.L.R.2d 1285; McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030; Brawner v. Brawner, Mo.Sup., 327 S.W.2d 808, 816 (Dissent).

As indicated, many who adere generally to the rule recognize some exceptions, such as when the tort was intentional and aggravated or brutal, or there is involved an additional relationship beyond that of parent and child, such as master and servant, or carrier and passenger. Annotation, 19 A.L.R.2d loc. cit. 433-434; Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218. For basically there is a feeling that injustice results from a broad and complete application of the doctrine of parental immunity as a bar to any suit against a parent for a personal injury to a child.

This court in Ennis v. Truhitte, Mo.Sup., 306 S.W.2d 549, 550, had before it a suit by a wife, a minor, against the administrator of the estate of her deceased husband for injuries she received resulting from the operation of an automobile in which she was a passenger and her husband was the driver. The action was in two counts, the first seeking damages for negligence in the operation of the automobile and the second seeking damages because the husband's conduct, in the circumstances, was so "gross and reckless' as 'to impute willfulness and wantonness and intentional wrong doing' to him.' In ruling that the petition should not have been dismissed by the trial court we said: 'In this case, the husband being dead and the action having been instituted against his administrator, the reasons of policy upon which the rule is based, the fact of their being husband and wife, have vanished. 1 Harper & James, Torts, Sec. 8.10, p. 645; Prosser, Torts, Sec. 101, p. 674. Hamilton v. Fulkerson, Mo.Sup., 285 S.W.2d 642, which permits recovery for a pre-marital tort, inflicted two days before the marriage, bites further into the common-law rule and its basic theory than does this case in which there is no longer marital relation to disturb.'

In the Ennis case we also stated that:

'In the cases involving the liability of a parent for personal torts against a minor child it is said that the true theory of the cases denying the minor's right to recover 'seems to be that of disability to sue the parent rather than absence of violated duty.' Annotation, 19 A.L.R.2d 423, 426. In the Rogers case [Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382], an action for false imprisonment in causing the plaintiff to be confined in an insane asylum, the court did not say that there was no tort; the court, in discussing the married women's acts, said, '* * * we hold that an action for a personal tort committed by a husband against a wife during coverture cannot be maintained under our statutes.' Rogers v. Rogers, 265 Mo. loc. cit. 208, 177 S.W. loc. cit. 384. In the Willott case [Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114], a suit for personal injuries sustained in an automobile accident, the court, while purporting to follow the Rogers case, said, 'At common law neither husband nor wife had a cause of action against the other for injuries to his or her person.' Willott v. Willott, 333 Mo. loc. cit. 898, 62 S.W.2d loc. cit. 1085. In Hamilton v. Fulkerson, supra, the court specifically returned to the quotation from the Rogers case. If there was a tort, even though one spouse could not maintain an action against the other for the wrong, the cause of action, as of course, accrued at the time of injury or when the damage 'is capable of ascertainment' (V.A.M.S., Secs. 516.100, 537.100), and so, contrary to the respondent's argument, there was 'a cause of action in being to survive.'

'* * * In addition * * * the survival statutes, as indicated, provide...