Fugate v. Fugate

• Decision Date: 19 June 1979
• Docket Number: No. 60357,60357
• Citation: 582 S.W.2d 663
• Parties: Denise FUGATE, a minor by her next friend, Carl Edward Stroup, Plaintiff-Appellant, v. Harold FUGATE, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 663

582 S.W.2d 663

Denise FUGATE, a minor by her next friend, Carl Edward Stroup, Plaintiff-Appellant, v. Harold FUGATE, Defendant-Respondent.

No. 60357.

Supreme Court of Missouri, En Banc.

June 19, 1979.

Keith Brown, James R. Bickel, Nevada, Mo., for plaintiff-appellant.

Laurence H. Flanigan, Carthage, Mo., for defendant-respondent.

BARDGETT, Judge.

The question on this appeal is whether or not the doctrine of parental immunity bars an action brought by an unemancipated minor child, aged 10, against her father, seeking damages for the negligent wrongful death of her mother in a case where the mother and father had been divorced and the general custody of the child had been placed with the mother.

The circuit court held an evidentiary hearing on defendant-respondent-father's (hereinafter defendant) motion to dismiss. The evidence on the motion indicated there had been no disruption in the harmonious relationship between defendant and his daughter (hereinafter plaintiff) because of the filing of this wrongful death action. The court so found but, nevertheless, sustained the motion to dismiss and it is obvious the ruling was on the belief that parental immunity barred this suit. Plaintiff appealed to the Missouri Court of Appeals, Southern District, and the judges ¹ of that court recommended transfer prior to opinion because the case presented a matter of statewide interest and importance. The court of appeals noted that our earlier case of Bahr v. Bahr, 478 S.W.2d 400, 402 (Mo.1972) seemed to imply, and the plaintiff in this case argued, that the rule of parental immunity would be applied subjectively on a case-by-case basis in every case in which an unemancipated minor sued a parent and observed that the bench and bar needed further and more specific guidance as to when parental immunity will be applied or relaxed.

On the recommendation of the court of appeals and pursuant to art. 5, sec. 10, Mo.Const., as amended 1970, the appeal was transferred to this court.

I.

Defendant Harold Fugate and Verla Mae Fugate (deceased) had been married. They had one child, plaintiff Denise Fugate, born August 30, 1964. Harold and Verla Mae were divorced on December 8, 1972. The divorce decree placed the general care, custody and control of Denise, then eight years old, with the mother, subject to certain visitation and temporary custody rights in the father. Harold was ordered to pay $150 per month to Verla Mae for the support of Denise. Defendant paid the child support, substantially exercised his visitation and temporary custody rights, and the relationship between Denise and her father was very good.

Verla Mae was killed March 15, 1974, while riding in defendant's car as a passenger, allegedly due to defendant's negligence. After her mother's death, Denise lived with defendant who has assumed her care and custody, and has at times lived with both sets of grandparents. Defendant had public liability insurance in effect on the car at the time of the accident.

On December 30, 1974, this wrongful death suit was filed pursuant to sec. 537.080, RSMo 1969, for the benefit of Denise, there being no surviving spouse or other minor children of Verla Mae.

As noted supra, the defendant's motion to dismiss on the ground that the doctrine of parental immunity prohibited the maintenance of this suit was sustained by the trial court.

II.

On this appeal plaintiff urges four points for reversal. (1) The trial court should have overruled defendant's motion to dismiss because Missouri's wrongful death statute abrogates the common-law doctrine of parental immunity by vesting a cause of action in minor children from the wrongful death of a parent "in every such case" that the person would have been liable if death had not ensued. (2) The trial court should have overruled defendant's motion to dismiss because prior Missouri cases have recognized intra-family lawsuits in tort. These cases preceded Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29 (1953), which discusses the doctrine of parental immunity favorably. (3) The trial court erred in applying the general rule of parental immunity to the facts of this case. The Baker case has been modified by recent cases. In Baker the court stated that the rule in Missouri opposes any disruption of family relationships and consequently applied the parental immunity doctrine to bar a suit by a child against the parent for negligence. The modern view is that a child may sue a parent in tort if two conditions are present. First, the emancipated child may sue. Wurth v. Wurth, 322 S.W.2d 745 (Mo. banc 1959). Also, the child may maintain a negligence action against the parent if the trial court concludes after an evidentiary hearing that legal proceedings will not disrupt family harmony. Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo. banc 1960). In Bahr v. Bahr, supra, the court implied that the burden of proof is on the party attempting to rely on the doctrine. Because the trial court found that the suit would not disrupt family harmony or subvert parental control and discipline, the motion to dismiss should have been overruled. (4) Even if the trial court were deemed to have properly applied the Missouri test, this court should abolish or modify the doctrine of parental immunity.

The defendant contends on the other hand that: (1) The trial court properly sustained the motion to dismiss because it is against public policy of this state to allow an unemancipated minor to sue a Living parent in tort and that while Brennecke removed the procedural bar of the parental immunity doctrine when an unemancipated child sued the parent's estate, the doctrine is still viable if the parent is living. (2) The dismissal was proper because the evidence conclusively established that plaintiff was an unemancipated minor. Under Wurth plaintiff has the burden of proving that she is emancipated and under the evidence presented at the hearing she cannot sustain that burden. Therefore, a conclusive presumption that an unemancipated child cannot sue a living parent in tort because of public policy considerations controls. Baker v. Baker, supra. (3) The cases cited by plaintiff for the proposition that a child can maintain an action for negligence against a parent are "mavericks", and that the rule in Missouri is that an unemancipated child cannot maintain a tort action against a living parent for mere negligence. (4) Defendant's insurance coverage is immaterial to the issues in this lawsuit because Missouri courts have held that the insurance coverage of a party cannot be considered in determining whether the suit can be maintained. (5) Public policy dictates that the plaintiff be barred from maintaining an action for wrongful death against her father. When presented with similar facts, other jurisdictions have held that public policy considerations bar the institution of a suit against the wrongful death statutes.

III.

Plaintiff's first point is that the Missouri wrongful death statute, sec. 537.080, RSMo 1969, the pertinent part of which reads

"Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered.

"(1) By . . . minor children . . . of the deceased . . ."

vests a cause of action in a minor child "in every case" that the decedent mother could have held a defendant father liable had death not ensued, and so abrogates the doctrine of parental immunity in such instances as the present case. The deceased mother could have sued her former husband (father) for injuries received in the accident and her personal representative could have sued for property damage resulting from this accident. Defendant maintains that the public policy of the State of Missouri demands that plaintiff be denied the right to enforce the cause of action; that public policy being recognized as the interest existing in the state to promote family harmony.

We must determine whether the doctrine of parental immunity operates as a procedural bar to plaintiff's lawsuit based on this cause of action. Most of the cases in which immunity has been posed as a bar have involved suits for direct, personal injuries. Jurisdictions are divided as to the applicability of parental immunity when the suit comes under a wrongful death statute. Plaintiff is within the class of persons entitled to entertain such action under our wrongful death statute, sec. 537.080, RSMo 1969, and several jurisdictions have allowed recovery in cases of indirect injury under similar statutes where the plaintiff-beneficiary maintains a cause of action through the death of another and where the beneficiary is so related to the defendant that the beneficiary could not have maintained suit against him for damages resulting from a direct bodily injury. ² Several jurisdictions have refused to bar suits by children against parents where the children sue under wrongful death statutes as beneficiaries of parties who could have maintained court actions had they lived. Illustrative of this approach is Fowler v. Fowler, 242 S.C. 252, 130 S.E.2d 568 (1963). Fowler involved an action brought under a wrongful death statute by the administrator of the deceased mother's estate against the father for the benefit of their minor children. The petition alleged that the father had negligently operated his automobile resulting in a collision in which the mother had been killed. The South Carolina legislature previously had authorized suits in tort between husband and wife. Since, if her death had not ensued, the wife could have brought an action for...