Jilani By and Through Jilani v. Jilani, 07-87-0114-CV
| Decision Date | 16 March 1988 |
| Docket Number | No. 07-87-0114-CV,07-87-0114-CV |
| Citation | 747 S.W.2d 504 |
| Parties | Wagas JILANI, Ammad Jilani, and Saher Jilani, By and Through Their Next Friend, Khawar JILANI, Appellants, v. Ahmad F. JILANI, Appellee. |
| Court | Texas Court of Appeals |
Patrick C. Simek, P.C., P.C. Simek, Lubbock, for appellants.
Purdom Law Offices, Thomas J. Purdom, Lubbock, for appellee.
Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.
In this suit, appellants Wagas Jilani, Ammad Jilani and Saher Jilani, acting by and through their next friend, Khawar Jilani, seek to recover damages for personal injuries from their father, appellee Ahmad F. Jilani. Those injuries were allegedly caused by the negligent operation by Ahmad F. Jilani of an automobile in which the plaintiffs were passengers. The question presented is whether such a suit by an unemancipated minor is prohibited by the Parental Immunity Doctrine. From a summary judgment in favor of appellee, appellants bring this appeal. We affirm the judgment of the trial court.
Deposition testimony shows that this suit arises from a one-car accident in which appellants, as noted above, were passengers in a car driven by appellee, their father. The accident occurred while the parties were on a family vacation. By deposition, appellee testified that he lost control of the car when it slid on gravel on the side of the road. The car subsequently hit a high line pole and rolled upside-down.
The doctrine of parental immunity is judge-made law, generally considered not to have existed in this country prior to 1891. In that year, the Supreme Court of Mississippi, in Hewelette v. George, 68 Miss. 703, 9 So. 885 (1891), held that a minor daughter could not recover damages from her mother for wrongful imprisonment in a hospital for the mentally ill. Without citation of prior authority, the Hewelette Court reasoned that:
[S]o long as the parent is under obligation to care for, guide and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The 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.
9 So. at 887. Most American courts followed Mississippi's lead and adopted some form of parental immunity. Various reasons were advanced in support of the doctrine, but the one most frequently cited by the courts, and the most persuasive, was that parental immunity preserved domestic tranquility and family unity. See Aboussie v. Aboussie, 270 S.W.2d 636, 639 (Tex.Civ.App.--Fort Worth 1954, writ ref'd).
In Felderhoff v. Felderhoff, 473 S.W.2d 928, 929-33 (Tex.1971), the Supreme Court had occasion to consider the parental immunity doctrine at some length. That case involved a personal injury suit filed on behalf of a minor for damages arising out of injuries sustained by him while employed by a farming partnership of which his father was a member. In the course of its discussion, the Court noted with approval the developing trend in exempting from parental immunity torts arising from the parent's business activity, as distinguished from the discharge of a parent's parental duties. In its holding, the Court declined an invitation to abolish the immunity doctrine in its entirety. However, it significantly limited the application of that doctrine in Texas to instances pertaining to "alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child." Id. at 933. The continuation of the doctrine in those respects, the Court reasoned, was necessary to prevent judicial disruption of "the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care and discipline for their children." Id. The Court explicated those parental duties as those usually pertaining to "the provision of a home, food, schooling, family chores, medical care and recreation." Id.
Parenthetically, we note that even prior to the Felderhoff decision, in Littleton v. Jordan, 428 S.W.2d 472, 475 (Tex.Civ.App.--Texarkana 1968, writ ref'd), the Court held that the parental immunity rule did not bar recovery by the estate of a deceased unemancipated child from the employer of the deceased child's father, where the father's negligence proximately caused the death of the child, even though the father (employee) was himself immune from suit.
In Farley v. M M Cattle Company, 529 S.W.2d 751, 758 (Tex.1975), citing the Felderhoff decision, the Supreme Court allowed an unemancipated minor's action against his employer, a ranch owner. The action was for injuries sustained when a horse ridden by the minor collided with another horse ridden by a co-worker, while the two were rounding up cattle. The owner contended that the rule of parental immunity protected the minor's father, the ranch foreman, from suit and, likewise, protected the owner from derivative liability. In discussing that contention, the Court noted that the action of the father in directing the minor to ride the horse and in failing to supervise him in his activities was acting in the conduct of the owner's business and wholly outside the sphere of his parental duties and responsibilities. That being the case, the Court relied upon the Felderhoff decision and held the action was not barred by the parental immunity doctrine. Id.
In the recent case of Sneed v. Sneed, 705 S.W.2d 392, 396-97 (Tex.App.--San Antonio 1986, writ ref'd n. r. e.) the Court of Appeals had occasion to examine the status of the parental immunity rule in Texas. In Sneed, an unemancipated minor sought to recover damages from the estate of her deceased father for the wrongful death of her mother and brother and for bodily injury suffered by the minor as a result of the crash of an airplane piloted by her father. In the course of its discussion, the Court reviewed in some detail the present state of the parental immunity rule as explicated and limited in the Felderhoff and M M Cattle Company cases. It characterized the present status of parental immunity as being limited to acts of ordinary negligence which involve a reasonable exercise of parental authority or discretion with respect to provisions for the care and necessities of the child. It noted that the doctrine was not applicable where the tortious conduct was a part of the parent's business activity and wholly outside the sphere of the parent's parental duties and responsibilities. 705 S.W.2d at 396-97.
In allowing the minor's suit, the Sneed Court initially noted that parental immunity has never applied to prevent a suit by a minor for negligent damage to the minor's property. The Court suggested that the portion of the action under the wrongful death statute was not a suit seeking redress for bodily injury inflicted on the child by the parent and was beyond the ambit of the immunity rule. Id. at 397. The Court went on to emphasize that the father's conduct resulting in the occurrence was not referable to his parental responsibilities. It scrutinized the Felderhoff explication of the basis for the rule as being designed to prevent disruption of the "wide sphere of reasonable discretion which is necessary in order for parents to provide nurture, care and discipline for their children." Id. at 397 (citing Felderhoff v. Felderhoff, 473 S.W.2d at 933). Since, the Court said, in the Sneed case, there was no possibility that a recovery by the appellant would disrupt a familial relationship which terminated at the time the appellant's action accrued, no public policy existed which should prevent recovery by that minor plaintiff. Id.
In pursuance of that reasoning, the Court reversed the trial court's judgment dismissing appellant's suit insofar as it covered her claims for personal injury and for her mother's death. Id. at 398. Since her action for her brother's death was not permissible under the wrongful death statute, the portion of the trial court judgment dismissing that action was affirmed. Significantly, in reaching its decision, the Court recognized the continuation of the parental immunity rule as limited by the Felderhoff Court, but under the specific facts in its case, held that rule was not applicable. Id.
Summarized, it appears that the doctrine of parental immunity is still alive and well in Texas insofar as it might apply to actions by an unemancipated minor against that minor's parent for, in the words of the Felderhoff Court, "alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child." 473 S.W.2d at 933.
Appellants acknowledge the state of the law in Texas. However, they say the negligent operation of a motor vehicle by a parent which proximately causes injury to a child of such parent should not be classified as a "reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child," and they ask us to hold that the doctrine of parental immunity does not bar an unemancipated minor child in Texas from bringing...
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