Mahnke v. Moore

Decision Date12 January 1951
Docket NumberNo. 72,72
Citation77 A.2d 923,197 Md. 61
CourtMaryland Court of Appeals

Frederick W. C. Webb and John W. T. Webb, Salisbury (Webb, Bounds, Travers & Adkins, Salisbury, on the brief), for appellant.

James P. Bailey and Ernest C. Clark, Salisbury (Clark & Hearne and Hamilton P. Fox, Jr., Salisbury, on the brief), for appellee.



This is an action in tort instituted in the Circuit Court for Wicomico County by Marilyn Marie Mahnke, infant illegitimate daughter of Russell C. Moore, deceased, and Marjorie Mae Mahnke, deceased, to recover for personal injuries caused by atrocious acts committed by her father in her presence. The suit was filed for her by her grandfather, Hugo Mahnke, her guardian and next friend, against Laura Woodward Moore, her father's widow and executrix.

Plaintiff alleges in her declaration that she was born on May 15, 1945; that for several years prior to January 1, 1950, her father and mother lived together in a bungalow in Salisbury ostensibly as husband and wife, but on or about January 1, 1950, she and her mother left him because of his cruel and inhuman conduct; that early in March they were induced by him to return; that on March 7 he shot her mother in her presence with a shotgun, thereby blowing away the right side of her head, a portion of her skull coming to rest on the kitchen table, and her body collapsing backward over a chair with her head resting in one pool of blood and her feet resting in another; that he kept her with the dead body until the night of March 13, when he drove her to his home at Collingswood, New Jersey, and there on March 14 he committed suicide in her presence by shooting himself with a shotgun, thereby causing masses of his blood to lodge upon her face and clothing. She claims that as a result of her father's acts and the conditions thereby created to which she was subjected, she has suffered shock, mental anguish and permanent nervous and physical injuries.

Defendant demurred to the declaration. The Court sustained the demurrer and entered judgment in favor of defendant. From that judgment plaintiff appealed to this Court.

The question here presented is whether the illegitimate child can maintain an action in tort for personal injuries resulting from the acts of her father. The early common law of England recognized that parents possessed rights which were superior to the personal rights of their children, in order to enable the parents to perform their duties more effectually and to recompense them for their care and trouble in the discharge of those duties. However, there is nothing in the English decisions to suggest that at common law a child could not sue a parent for a personal tort.

Blackstone commented on the subject as follows: 'The ancient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away. But the rigour of these laws was softened by subsequent constitutions * * *. But still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them, for his life. The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education.' 1 Sharswood's Blackstone's Commentaries, Book 1 (page 451) *452.

In 1816 Judge Reeve of Connecticut, the earliest American writer on the subject, expressed the opinion that parents have the power to chastise their children moderately, but if a parent chastises a child unreasonably and maliciously, he can be held liable in an action by the child for battery. Thus, he said that if it should appear to the triers that the parent acted conscientiously and from motives of duty, no verdict ought to be found against him, even though the punishment appeared to be unreasonably severe and not proportioned to the offense; but if it should appear that the parent punished unreasonably and maliciously, then he ought to be liable for damages. Reeve, Domestic Relations, 287-289.

In 1882 Professor Schouler urged that suits in tort by child against parent for maltreatment should be discouraged after the child becomes of age. He contended that a cruel parent ought to be punished at the time of his cruelty, and if necessary should forfeit custody of the child as well as suffer criminal penalties; but he considered that it was not good policy to allow a child, after attaining his majority and is free from parental control, to institute a suit for damages 'for some stale injury, real or imagined, referable to that period.' Schouler, Domestic Relations, 3d Ed., sec. 275.

Judge Cooley saw no reason in principle why an action could not be maintained by a minor child against a parent unless it should invite a contest of the parent's authority. Cooley, Torts, 1879 Ed., 171. Sir Frederick Pollock likewise wrote that parents are protected in the exercise of summary force or restraint if they act with good faith and in a reasonable and moderate manner. He also noted that 'modern civilization has considerably diminished the latitude of what judges or juries are likely to think reasonable and moderate correction.' Pollock, Torts, 1887 Ed., 83.

In 1891 the Supreme Court of Mississippi handed down its opinion that a minor child could not maintain an action in tort against the parent for wrongful confinement in an insane asylum. This opinion, Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, 684, was destined to have far-reaching influence. It concluded by saying that a minor child has no right to assert any claim to civil redress for personal injuries suffered at the hands of the parents; and that the State, through its criminal laws, will give the child protection from parental violence and wrongdoing, and this is all the child can be heard to demand. In other words, the Court made no distinction between (1) acts of negligence due to an error of judgment and (2) wilful, wanton and malicious acts. The opinion did not cite any judicial decision or any other authority, but for forty years it was followed by the Courts in other States.

In 1903 the Mississippi decision was followed by the Supreme Court of Tennessee in McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991. There a minor daughter had been severely injured by cruel and inhuman treatment inflicted by her father and stepmother. But the Court said that, even though the parental power may be abused, a child has no remedy in civil action against the parent for personal injuries inflicted.

The question next came before the Supreme Court of Washington in 1905 in Roller v. Roller, 37 Wash. 242, 79 P. 788, 68...

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