Kohler v. Rockwell Intern. Corp.

• Decision Date: 09 June 1980
• Docket Number: No. WD,WD
• Citation: Kohler v. Rockwell Intern. Corp., 600 S.W.2d 647 (Mo. App. 1980)
• Court: Missouri Court of Appeals
• Parties: Daryl D. KOHLER, Plaintiff, v. ROCKWELL INTERNATIONAL CORP., Defendant. J. R. PREWITT & SONS, INCORPORATED, Appellant and Third Party Plaintiff, v. John KOHLER and Phil Kohler, Respondents and Third Party Defendants. 30759.

Page 647

600 S.W.2d 647

Daryl D. KOHLER, Plaintiff, v. ROCKWELL INTERNATIONAL CORP., Defendant.

J. R. PREWITT & SONS, INCORPORATED, Appellant and Third

Party Plaintiff, v. John KOHLER and Phil Kohler, Respondents and Third Party Defendants.

No. WD 30759.

Missouri Court of Appeals, Western District.

June 9, 1980.

Phil M. Cartmell, Jr., Michael J. Gallagher and Stephen B. Sutton, Kansas City, for appellant; Gage & Tucker, Kansas City, of counsel.

Max W. Foust, G. Spencer Miller and Ed G. Dougherty, Kansas City, for respondents; Morris & Foust, Kansas City, of counsel.

Before KENNEDY, P. J., and PRITCHARD and SWOFFORD, JJ.

PRITCHARD, Judge.

Plaintiff, Daryl D. Kohler, brought action for personal injuries on the theory of products liability against Rockwell International Corp. and J. R. Prewitt & Sons, Incorporated, arising out of an occurrence on January 5, 1963. Daryl was then 1 01/2 years of age, and his brother, Phil, age 14, was then operating a tractor which supplied power to a wagon unloader which was alleged to have defects which caused Daryl's injuries. The wagon unloader had been purchased some six years before the occurrence on January 5, 1963, by Daryl's father, John Kohler, and it was undisputed that certain safety devices available generally at the time of sale were not in use on the wagon unloader at the time of the accident.

Appellant, Prewitt, sought by third party plaintiff petition to implead Daryl's father, John, and his brother, Phil, for indemnification under Missouri Pac. R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). The issues are whether (1) the parental immunity doctrine, and (2) the so-called intra-family doctrine bar the actions for indemnity against the father and brother of the plaintiff for contribution on the basis of their alleged relative fault as concurrent tort-feasors. As to John, the third party petition alleged that the drive unit of the wagon was purchased from Prewitt, and John received, was offered, or purchased safety devices consisting of a shield to enclose and cover the drive unit, a safety rope apparatus which kept the wagon unloader drive unit out of reach of the operator while shifting, and instructions and warnings to the operator while shifting, and that John was negligent in failing to warn Daryl of the alleged dangers, but ordered him to operate the machinery and thereby knowingly exposed him to danger. As to Phil, Prewitt alleged that he was negligent in failing to stop the drive unit when Daryl approached it; in instructing Daryl to stand by the drive unit when it was rotating; and in failing to operate the drive unit in the appropriate manner by use of the tractor clutch so he could stop it at the first stage or impending injury and before the injury was suffered. The trial court dismissed Prewitt's third party petition.

The doctrine of parental immunity in this country seems to have its origin in the case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891), and many cases are traced thereafter in Wells v. Wells, 48 S.W.2d 109, 110 (Mo.App.1932). A number of jurisdictions have abolished the parental immunity doctrine, but Missouri is not one of them. See the recent case of Rosanna Nocktonick, a minor, by her guardian, Nocktonick (Wayne Matson) v. Nocktonick, and Farmers Alliance Mutual Insurance Company, 227 Kan. 758, 611 P.2d 135 (1980) (which upheld the right of a minor to sue her alleged tort-feasor mother in an automobile case, and which noted seven jurisdictions which have abolished parental immunity without restrictions, and nineteen jurisdictions which have abolished it in automobile accident cases); see also Anno. 41 A.L.R.3d 904, 964. The reason for the doctrine announced in the Hewlett case is stated, " 'to permit a child to maintain an action in tort against the parent is to introduce discord and contention where the laws of nature have established peace and obedience.' " Wells, however, refused to apply the doctrine of parental immunity where a mother sued her minor son (and another son who was 28 years of age) for personal injuries arising from an accident in an automobile, in which the mother was a passenger, and which was being driven by the minor son under the direction of the older son, under an allegation that he "did carelessly and negligently drive and operate the same 'by travelling at an excessive and reckless rate of speed, and by carelessly and negligently applying the brakes while the same was travelling at a dangerous and excessive rate of speed.' " The court noted that suits were allowed between adversary child and parent involving title to real estate, actions in debt, will contests, probate proceedings, fraud, and the like, saying that such suits would (also) introduce discord and contention in the home, "but it will not be claimed that the law forbids such action." The court affirmed the judgment for the plaintiff mother, following Dix v. Martin, 171 Mo.App. 266, 157 S.W. 133 (1913), which affirmed a judgment for an infant plaintiff against one standing in loco parentis to her for cruelly whipping her, the Dix Court saying, 157 S.W. page 136, "The assault was wicked and criminal, and, assuming that defendant stood in the relation of a parent to plaintiff, she should answer for the damages resulting from such excessive punishment."

No real analogy is presented as between the Wells and Dix cases, the former apparently being for ordinary negligence, and the latter being for an intentional tort. In any event, it appears that Missouri still follows the general rule of the Hewlett case, with exceptions and reservations, as noted in the following decisions. Cook v. Cook, 232 Mo.App. 994, 124 S.W.2d 675, 676 (1939), noted that the facts of the Dix case, supra, were that the defendant stood in the position of master to the plaintiff, not in loco parentis, so it would appear that Dix was no authority for the Wells decision. The Cook case denied the right of the adopted minor child to sue the adoptive parent for striking her with a riding whip, even though there was a willful, wanton and malicious assault, the court noting that this state has ample provisions for criminal punishment for those types of assaults. In Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29 (1953), an infant 15 months old was denied the right to sue her father for negligently injuring her while backing an automobile out of the home driveway, although the father had insurance against liability. The court noted that the Hewlett case, supra, had been severely criticized, and Roller v. Roller, 37 Wash....