Kendall v. Sears, Roebuck and Co., 63086

• Decision Date: 08 June 1982
• Docket Number: No. 63086,63086
• Citation: 634 S.W.2d 176
• Parties: Justin Cole KENDALL, a Minor, by his Next Friend, Timothy L. Brake, and James Kendall and Linda Kendall, Respondents, v. SEARS, ROEBUCK AND CO., and Roper Corporation, Appellants.
• Court: Missouri Supreme Court

Page 176

634 S.W.2d 176

Justin Cole KENDALL, a Minor, by his Next Friend, Timothy L.

Brake, and James Kendall and Linda Kendall, Respondents, v. SEARS, ROEBUCK AND CO., and Roper Corporation, Appellants.

No. 63086.

Supreme Court of Missouri, En Banc.

June 8, 1982.

Joseph E. Stevens, Jr., William Ray Price, Jr., Kansas City, for appellants; Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, of counsel.

Morris & Foust, Max W. Foust, E. Wayne Taff, Kansas City, for Justin Cole Kendall.

Lantz Welch, P. C., Timothy L. Brake, Kansas City, for next friend.

Deacy & Deacy, Spencer J. Brown and Phillip B. Grubaugh, Kansas City, for respondents.

MORGAN, Judge.

This appeal involves a judgment ¹ in the form of an order sustaining respondents' (plaintiffs') pretrial motions to dismiss appellants' (defendants') counterclaims and overruling appellants' pretrial motion to disqualify respondents' counsel.

A bare recital of the facts should be adequate. This suit was instituted in May of 1978, alleging that a minor, Justin Cole Kendall, was injured by a lawnmower manufactured by appellant Roper Corporation, distributed by appellant Sears, Roebuck and Company, and operated by James Kendall, father of the injured minor, who initially brought his son's action as next friend. The petition for damages predicates separate claims under negligence, products liability, and breach of warranty theories. Separate answers and counterclaims were filed, with the latter alleging that James Kendall had operated the lawnmower negligently and thereby caused his minor son's injuries.

Twelve days following the filing of the answers and counterclaims, respondents moved to dismiss the counterclaims on the basis of parental immunity. On December 17, 1978, the Circuit Court of Jackson County (Division 10) overruled the motions to dismiss. On June 20, 1979, appellants moved to disqualify respondents' counsel on the basis of a conflict of interest. In response to appellants' motion to disqualify, respondents moved for a rehearing of the overruling of the motions to dismiss the counterclaims.

On April 29, 1980, the Circuit Court of Jackson County (Division No. 5) sustained respondents' motions to dismiss and overruled appellants' motion to disqualify counsel. On May 8, 1980, the court set aside the order of April 29, 1980, appointed a successor next friend, one Timothy Brake, for the minor and ordered an evidentiary hearing to determine the applicability of the doctrine of parental immunity to appellants' counterclaims. On July 31, 1980, following a hearing, the court again sustained the motions to dismiss and overruled the motion to disqualify. After appeal, we accepted transfer and now decide the case as upon original appeal.

Appellants present three points for consideration: (1) the trial court erred in dismissing appellants' counterclaims on the basis of the doctrine of parental immunity; (2) the doctrine of parental immunity should be abrogated; and (3) the trial court abused its discretion in failing to disqualify respondents' legal counsel. Our disposition of the first two points necessarily disposes of the last.

We look to the "abrogation" issue first. Appellants contend the doctrine of parental immunity is now ill-reasoned and has been fatally eroded by our own and other judicial decisions. In response, we need but take this opportunity to reaffirm our recent holding in Fugate v. Fugate, 582 S.W.2d 663 (Mo. banc 1979), and endorse again the procedure approved therein for making application of the doctrine dependent upon a case by case basis. 582 S.W.2d at 667, 669. Finding no persuasive reason for doing otherwise, we decline appellants' invitation to abrogate parental immunity outright.

Turning our attention to appellants' assertion that the trial court erred in dismissing their counterclaims, we note that this is our first opportunity to examine parental immunity since this court's pronouncement permitting apportionment of joint tort liability and contribution between tortfeasors in Missouri Pacific R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). Nevertheless, we are not without guidance. Appellate courts within the state have had an opportunity to consider the effect of apportionment and contribution upon parental immunity and other closely related doctrines. We keep in mind that both the counterclaims herein ² and "contribution" rest upon the same theory: a common legal liability accountable to two or more tortfeasors.

Martinez v. Lankster, 595 S.W.2d 316 (Mo.App.1980), involved contribution and interspousal immunity. There, plaintiff was a passenger in a car operated by her husband and was injured in an auto accident with defendant. Defendant moved to join plaintiff's husband as a third party defendant. The Eastern District, citing Whitehead & Kales, found the basis of a third party action to be a common liability to the plaintiff. Since the doctrine of interspousal immunity proscribed any liability of the husband for negligent injuries to the spouse-plaintiff, the court held no contribution could be obtained. See also Renfro v. Gojohn, 600 S.W.2d 77 (Mo.App.1980).

The relationship between parental immunity and Whitehead & Kales was examined by the Western District in Kohler v. Rockwell International Corp. and J. R. Prewitt & Sons, Inc., 600 S.W.2d 647 (Mo.App.1980). Plaintiff, a minor, brought suit to recover damages for injuries allegedly caused by defective farm equipment manufactured by defendant Rockwell, sold by defendant Prewitt, owned by his father and operated by his brother. Defendant Prewitt attempted to implead both father and brother claiming their negligence contributed to plaintiff's injuries. Upon motion the trial court dismissed both father and brother and defendant appealed. Although the cause was remanded, ³ the holding that parental immunity barred the impleader action with respect to the father was left intact. Reasoning by analogy, the court observed that since parental immunity barred plaintiff son from bringing a direct action against his father, the father would not be susceptible to an action seeking contribution. See also MFA Mutual Ins. Co. v. Howard Construction Co., 608 S.W.2d 535 (Mo.App.1980) (citing Martinez, supra, Renfro, supra, and Kohler, supra, in reaching similar conclusions).

After careful consideration of the briefs submitted and arguments made, we affirm the trial court's dismissal of appellants' counterclaims.

We need but acknowledge the very language of Whitehead & Kales which persuades us that parental immunity bars the proposed counterclaims raised herein. Whitehead & Kales held that: "the right to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo. banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (Mo. banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); 1 J. Dooley, Modern Tort Law § 26.07, at 547 (1977)," 566 S.W.2d at 468 (Emphasis added). "The essential thing is the attempt to be fair as between persons subjected to a common legal liability." Id. at 469 (Emphasis added). Since the doctrine of parental immunity is of continuing viability, it becomes apparent that if the doctrine is applicable in the case, any legal liability on the part of the parent for negligent acts has been removed.

The trial court in the case now before us held an evidentiary hearing to determine whether (1) the legal proceedings would disrupt family harmony or subvert parental control and discipline, or (2) whether the minor was emancipated, as per Brennecke v. Kilpatrick, 336 S.W.2d 68, 70 (Mo. banc 1960), and Fugate, supra. The court found the minor to be unemancipated, and that there would be a disruption of family tranquility if the claims against the father were allowed. This finding is supported by the evidence presented, and we hold it not to be an abuse of discretion. Thus, parental immunity shields the minor's parent from any liability for negligent acts, if any, towards the son.

Appellants argue to the Court that parental immunity is but a "procedural" bar, not a substantive one, and as such a parent may be liable to another (premised upon liability between parent and child), though not subject to suit by the child. We recognize that this is a minority concept; ⁴ yet apportionment of liability in this state, as noted previously, rests upon "actionable negligence of both parties toward a third party" and "common legal liability." Whether parental immunity is procedural or substantive, it still proscribes any actionable negligence towards the parent. In other words, if the minor Justin Kendall cannot sue his father, there is no "actionable negligence" nor any "common liability" on the part of his father upon which the counterclaim herein could be based. Although the case at bar presented the issue of the parent's negligence as a counterclaim, while the Kohler decision was couched as third party actions, we hold this procedural difference too insignificant to distinguish the two cases. Both seek recovery against the parent for amounts the defendants are held liable to the minor based upon an initial liability of the parent. Therefore, no foundation exists upon which the proposed counterclaims may be sought. To hold otherwise would prefer form over substance; a defendant will not be allowed to accomplish indirectly that which could not be accomplished directly. Martinez, supra, at 318.

We take some solace in the fact that many learned treatises implicity bolster this position. While Prosser recognizes the minority position, ⁵ he states nonetheless that:

The contribution defendant must be a tortfeasor, and originally liable to the plaintiff. If there was never any such liability, as where he has the defense of family immunity... then he is not liable for contribution. ⁶

Prosser, § 50, at 309.

Further support is found in the ...