Frye v. Frye

Decision Date01 September 1985
Docket NumberNo. 98,98
Citation505 A.2d 826,305 Md. 542
Parties, 54 USLW 2491 Barbara J. FRYE, Ind. and as Next Friend and Guardian of George L. Frye III v. George L. FRYE, Jr. and Selected Risks Insurance Company. ,
CourtMaryland Court of Appeals

John R. Webster (Miller & Webster, on brief), Clinton, for appellant.

Stephen J. Kleeman (David D. Patton, on brief), Baltimore, for appellee.

Argued before SMITH, Senior Judge, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge.

The doctrine usually called the parent-child immunity rule exists in Maryland. It evolved through judicial decision and has been followed for over half a century. We are now asked whether it should be abrogated by this Court. We do not believe that it should be.


George L. Frye, Jr., was driving an automobile owned by his wife, Barbara J. Frye and insured by Selected Risks Insurance Company, when it veered off the road and struck a culvert. Barbara and George L. Frye, III, their infant, unemancipated son, were injured. Barbara, individually and as guardian and next friend of George III, 1 filed suit in the Circuit Court for Prince George's County against George Jr. for damages resulting from the father's negligence in the operation of the automobile (1st count) and against Selected Risks Insurance Company for damages resulting from breach of contract in denying a claim based on the uninsured motorist provision of its insurance policy (2nd count). Upon motion, the court dismissed the action as to Barbara individually because no relief could be granted on her claim due to the operation of the interspousal immunity rule, which although not then in effect, had been applicable when her action accrued. See Boblitz v. Boblitz, 296 Md. 242, 275, 462 A.2d 506 (1983). Upon a second motion to dismiss, the court dismissed the action as to George III because no relief on his behalf could be granted due to the operation of the parent-child immunity rule. The court also dismissed the action against the insurance company. Final judgment as to all parties, under both counts, was rendered and Barbara noted an appeal to the Court of Special Appeals. She promptly requested that this Court cause the record and proceedings to be certified to it before decision by the intermediate appellate court. We granted the request. Her petition asked:

(1) Whether the parent-child immunity rule as to cases sounding in negligence should be abrogated in light of Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506;

(2) Whether, if the parent-child immunity rule is upheld ... George L. Frye, Jr. would be rendered an uninsured motorist, giving [George L. Frye, III] rise to a claim under the uninsured motorist provision of the motor vehicle policy.


"[T]here is nothing in the [old] English decisions to suggest that at common law a child could not sue a parent for a personal tort." Mahnke v. Moore, 197 Md. 61, 64, 77 A.2d 923 (1951). But near the end of the last century a court in this country held flatly that a child could not maintain such an action. Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891) involved a suit in tort for damages brought by a minor child against her mother for "wilfully, illegally and maliciously" having the child confined in an insane asylum in order for the mother to obtain the child's property. The Supreme Court of Mississippi decided that the minor child could not maintain the action. It opined that "[t]he 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." 68 Miss. at 711, 9 So. at 887. It baldly declared that "[t]he peace of society, 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." Id. The court made no distinction between acts which were negligent due to an error of judgment and wilful, wanton or malicious acts. The opinion did not cite any judicial decision or any other authority for its broad holding, but for forty years it was blindly followed by many courts throughout the country, both with respect to negligent acts and malicious acts. See, for example, McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) (minor daughter severely injured by cruel and inhuman treatment inflicted by her father and stepmother); Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905) (father raped his 15-year-old daughter and was convicted of the crime); Matarese v. Matarese, 47 R.I. 131 131 A. 198 (1925) (minor child injured as a result of parent's negligence in the operation of an automobile). Five years later, this Court broadened the Hewlett rule that a minor child has no right to assert any claim to civil redress for personal injuries suffered at the hands of the parents while adhering to its basic concept. In Schneider v. Schneider, 160 Md. 18, 152 A. 498 (1930), this Court held that a mother cannot sue her minor child for injuries sustained in an automobile accident in which she was a passenger and the child was the driver. So the rule was construed as applying not only to actions by the minor child against the parent, but also to suits by the parent against the minor child. We clung to the Hewlett rule in Yost v. Yost, 172 Md. 128, 190 A. 753 (1937) in holding that a minor child cannot maintain a suit in equity against a father for failure to provide support or for neglect.

Shortly before our decision in Schneider, the Supreme Court of New Hampshire repudiated the absolute rule of Hewlett with respect to wilful acts as distinguished from negligent acts. In Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930), the court said:

On its face, the rule is a harsh one. It denies protection to the weak upon the ground that in this relation the administration of justice has been committed to the strong and that authority must be maintained. It should not be tolerated at all except for very strong reasons; and it should never be extended beyond the bounds compelled by those reasons. * * * The father who brutally assaults his son or outrages his daughter ought not to be heard to plead his parenthood and the peace of the home as answers to an action seeking compensation for the wrong. The relation is rightly fortified by certain rules. Outside that relation, the rules are inapplicable; and any attempt to apply them leads to irrational and unjust results. 150 A. at 909-910.

In Mahnke v. Moore, supra, we were obviously persuaded by the view in Dunlap, cited earlier by this Court in Schneider, 160 Md. at 22, 152 A. 498. We also departed from the absolute rule of Hewlett in holding that a minor child had a right of action against the father for cruel and inhuman treatment or for malicious and wanton wrongs. 2

In Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617 (1957), we refused to extend the Hewlett rule to include an emancipated child. We held that a mother could maintain a suit against her adult son for injuries sustained in an accident caused by the alleged negligence of the son in the operation and control of an automobile.

The Court of Special Appeals has applied the parent-child immunity rule in several cases. See Latz v. Latz a/k/a Shafer, 10 Md.App. 720, 272 A.2d 435, cert. denied, 261 Md. 726 (1971) (mother killed while a passenger in an automobile negligently driven by her unemancipated minor daughter); Sanford v. Sanford, 15 Md.App. 390, 290 A.2d 812 (1972) (minor child injured when an automobile was negligently driven by father); Montz v. Mendaloff, 40 Md.App. 220, 388 A.2d 568 (1978) (minor child injured when an automobile was negligently driven by mother even though the mother's negligence may have been gross). But see id. at 226-229, 388 A.2d 568 (Gilbert, C.J., concurring). In Shell Oil Co. v. Ryckman, 43 Md.App. 1, 403 A.2d 379 (1979) the court stated the rule enunciated in Schneider as ordinarily denying recovery for damages for negligence between parent and child. 43 Md.App. at 3, 403 A.2d 379. The court refused to carve an exception to the immunity rule for claims arising when the parent and child are engaged in a business activity. Id. at 4-5, 403 A.2d 379. It recognized, however, that immunity does not apply when the child reaches maturity and is emancipated or when the parent's conduct is cruel and inhuman or wanton and malicious. Id. at 3, 403 A.2d 379.


A common theme appears in the rationale advanced by the courts which championed the parent-child immunity rule. The rule is founded upon the relation in which the parent and the unemancipated minor child stand to each other. The reciprocal dependence and entitlement of that relationship promotes a public policy which the rule reflects. The court in the seminal case of Hewlett v. George, supra, declared that the rule furthered

[t]he peace of society, and of families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society.... 68 Miss. at 711, 9 So. at 887. 3

In Schneider v. Schneider, supra, we set out in more detail our reasons for adopting the rule. We said:

The obstacle to the mother's recovery ... is in the fact that she sues a minor son, of whom she, jointly with the father, is the natural guardian.... The ordinary position of parent and guardian of a minor, and that of plaintiff seeking to recover from the minor, are positions which cannot both be occupied by one person at one and the same time. Maintenance of the suit is inconsistent with the parent's status or office, and the dependence of the minor upon her, and also with the dependence of the law upon her for the fulfillment of necessary legal and social...

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