Glaskox By and Through Denton v. Glaskox

• Decision Date: 29 October 1992
• Docket Number: Nos. 07-CA-59659,07-CA-59660 and 89-CA-1316,s. 07-CA-59659
• Citation: 614 So.2d 906
• Parties: Heather GLASKOX, a Minor, By and Through Her Grandfather, Guardian and Next Friend, Billy H. DENTON v. Luther GLASKOX. Tabatha GLASKOX, a Minor By and Through Her Grandfather, Guardian and Next Friend, Billy H. DENTON v. Luther GLASKOX. Gina Gayle BIGELOW, a Minor, By and Through Her Mother and Next Friend, Carron BIGELOW v. Carron BIGELOW.
• Court: Mississippi Supreme Court

Page 906

614 So.2d 906

Heather GLASKOX, a Minor, By and Through Her Grandfather, Guardian and Next Friend, Billy H. DENTON v. Luther GLASKOX.

Tabatha GLASKOX, a Minor By and Through Her Grandfather, Guardian and Next Friend, Billy H. DENTON v. Luther GLASKOX.

Gina Gayle BIGELOW, a Minor, By and Through Her Mother and Next Friend, Carron BIGELOW v. Carron BIGELOW.

Nos. 07-CA-59659, 07-CA-59660 and 89-CA-1316.

Supreme Court of Mississippi.

Oct. 29, 1992.

Rehearing Denied April 8, 1993.

John L. Hunter, David O. McCormick, Cumbest Cumbest Hunter & McCormick, Pascagoula, for appellant in No. 07-CA-59659.

Ernest R. Schroeder, C.M. Lanford, H. Benjamin Mullen, Bryan Nelson Schroeder Backstrom Castigliola & Banahan, Raymond L. Brown, Brown & Watt, Pascagoula, for appellee in No. 07-CA-59659.

Charles G. Copeland, Copeland Cook Taylor & Bush, Jackson, for amicus curiae in No. 07-CA-59659.

John L. Hunter, Cumbest Cumbest Hunter & McCormick, Pascagoula, for appellant in No. 07-CA-59660.

Ernest R. Schroeder, Bryan Nelson Schroeder Backstrom Castigliola & Banahan, Pascagoula, for appellee in No. 07-CA-59660.

Dempsey M. Levi, Levi & Denham, Ocean Springs, for appellant in No. 89-CA-1316.

John A. Banahan, Bryan Nelson Schroeder Backstrom Castigliola & Banahan, Pascagoula, for appellee in No. 89-CA-1316.

EN BANC.

BANKS, Justice, for the Court:

This appeal represents the consolidation of three cases wherein we are asked to revisit and overrule our decision in Hewlett v. George, 68 Miss. 703, 9 So. 885 (Miss.1891), ¹ adopting the doctrine of parental immunity for negligent injury to children. We accept the invitation, abolish the doctrine and, consequently reverse the judgments entered in favor of defendants.

I.

Heather Glaskox (Heather), minor, by and through her grandfather, Billy H. Denton, filed a complaint in negligence against Mississippi Export Railroad Company (Railroad) and Luther Glaskox (Glaskox), her father, in the Circuit Court of Jackson County, Mississippi. Heather alleged that on April 11, 1985, at approximately 3:30 p.m., she was injured when a truck being driven by her father, in which she was a passenger, was negligently struck by a train being operated by the railroad. The direct and proximate result of the defendants' negligence was "severe, permanent, painful and disabling personal injuries" to Heather's body. She demanded judgment against the defendants in the amount of $800,000.00.

On July 27, 1988, the defendants filed a "Motion for Protective Order" seeking refuge from having to complete discovery. The defense theory was that such protection should be afforded, pending decision on its "Motion to Dismiss", for failure to state a claim given that the Heather's case against her father was barred by the doctrine of parental immunity.

On the same date, Glaskox, filed a "Separate Answer" to the complaint filed against him. He denied all material allegations of By Order dated August 31, 1988, the court found that there were serious questions regarding the state law "as it might apply to parental immunity from a suit filed by a child in view of the most recent Supreme Court decision of Burns v. Burns, 518 So.2d 1205 (Miss.1988), which abrogated interspousal immunity in tort suits." It found further that "although serious questions are raised regarding the status of the law in Mississippi, in view of Burns v. Burns, that the doctrine of parental tort immunity for an unemancipated child suing its parent has not been overruled, and the Court is thereby bound by the doctrine of stare decisi [sic] to dismiss this cause of action and hereby grants a dismissal." Finally, the court stayed and terminated all proceedings against the railroad "until a determination is made from the ruling of This Court by a decision from the Supreme Court regarding the issues of parental tort immunity, as the ruling is likely to dispose of the case on its merits and would create judicial economy and efficiency and would not create any prejudice or any undue burden on the parties to await a ruling from the Supreme Court regarding the issues of parental tort immunity." Pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, the judgment entered against Glaskox was final and rendered the Court's Order appealable.

                the complaint and claimed that the injuries sustained by Heather were caused by "the negligence of others."    He affirmatively alleged that the "sole proximate cause of the accident and injuries complained of by the Plaintiff was the negligence and lack of due care of the Defendant, Mississippi Export Railroad Company...."
                

From the order of dismissal, Heather filed a Notice of Appeal to the Supreme Court on September 16, 1988.

Tabatha Glaskox

Tabatha Glaskox, (Tabatha), with the aid of her grandfather, filed a complaint in negligence against her father, Luther Glaskox ². She alleged that Glaskox was negligent in some, if not all, of the following: (1) failure to keep a reasonable and proper look-out for a train; (2) failure to control his vehicle; (3) driving at an unsafe speed; (4) failure to yield the right-of-way to the train. She demanded $800,000.00 judgment against her father. The record in Tabatha's case was identical to Heather's in all other respects.

Gina Gayle Bigelow

Gina Bigelow (Gina), by and through her mother, Carron Bigelow (Bigelow), filed a complaint in which she alleged that her mother's negligent operation of a car resulted in painful and disabling physical and mental injuries and suffering. She demanded a judgment of $300,000.

Bigelow filed an "Answer" on November 8, 1989, denying all the material allegations of the complaint and alleging, affirmatively, that the complaint failed to state a cause of action as she was immune from suit. On the same date, Bigelow filed a Motion to Dismiss averring that the law in Mississippi on parental immunity did not afford Gina any relief. Gina filed an Answer to Motion to Dismiss on November 16, 1989, denying all the allegations in Bigelow's motion. Additionally, in her Brief in Support of Answer to Motion to Dismiss, Gina argued that parental immunity to a tort suit from an unemancipated minor should be abolished as was the concept of interspousal immunity in Burns v. Burns, 518 So.2d 1205 (Miss.1988). She contended that the allowance of such suit in no way interferes with or strains the relationship between parent and child; instead it provides a means for compensation to the injured child and insures equal treatment for children.

On August 26, 1988, a hearing was had on the motions to dismiss filed by Glaskox. During the hearing, defense counsel contended that the cases involved questions of law more appropriate for the legislature or Supreme Court and the Burns decision on Plaintiff's counsel responded that Mississippi got on the wrong track a hundred years ago and without precedent recognized parental immunity from suits brought by unemancipated minors. He stated further that disallowing the suit filed by Heather and Tabatha denies them equal protection and due process of law; additionally, article 3, section 24 of the Mississippi Constitution (1890) which provides for open courts, applies to minors.

which plaintiff's relied was a five-four decision with a strong dissent.

The court ruled that pursuant to stare decisis it was obliged to follow the doctrine of parental immunity since such immunity had not been abrogated by the Supreme Court. It held that if the law is to be changed, then it is the decision of the Supreme Court or the legislature and until changed, the court was obliged to follow and apply the doctrine of parental immunity and bar these cases.

On November 17, 1989, the court held a hearing on Bigelow's motion to dismiss suit filed by her daughter, Gina. For the same reasons that it stated in Glaskox v. Glaskox, the court granted the motion.

II

The principle of parental immunity bars an unemancipated minor from suing her parent for injuries caused by the negligence of the parent. Hewlett v. George, 68 Miss. 703, 9 So. 885 (Miss.1891); Durham v. Durham, 227 Miss. 76, 85 So.2d 807 (1956). Parental immunity did not originate in the English common law; instead, it was a creation of our predecessors. See, Durham, 227 Miss. at 82, 85 So.2d 807. In 1891, in the seminal case of Hewlett v. George, this Court, without relying on any precedent, established a rule of law that would be followed in jurisdictions throughout our land and not be abrogated until some seventy years later ³.

After its introduction in Hewlett, the rule began to spread quite rapidly. The Hewlett Court premised its opinion, and consequently the rule of parental immunity, on the obligations of parents to care for, guide, and control children and the children's duty to obey their parents. Emerging from these reciprocal obligations was the preservation of domestic tranquility.

The peace of society, and of the families composing society, and a sound public policy, designed to sub-serve 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. The state, through its criminal laws will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.

Hewlett, 9 So. at 887.

The rule, however, has not been without its critics. Legal writers have almost universally condemned the doctrine, and the trend judicially is toward a steady erosion of the rule by "exception and repudiation." Williams v. Williams, 369 A.2d 669, 673 (Del.1976). Prosser, Law of Torts, indicates that the doctrine has no foundation in English common law. Courts in Canada and Scotland permit actions by children for personal torts resulting from parental negligence. Id. Sec. 122 (4th Ed.1971); accord, Harper and James, Law of Torts, Vol. 1, Sec. 8.11 (1956).

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