Plumley v. Klein

• Decision Date: 26 July 1972
• Docket Number: No. 10,10
• Citation: 199 N.W.2d 169,388 Mich. 1
• Parties: Howard PLUMLEY, Administrator of the Estates of Nita Plumley, Deceased, et al., Plaintiff-Appellee, v. Alma KLEIN, Administratrix of the Estate of Claudia Ann Plumley, Deceased, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 169

199 N.W.2d 169

388 Mich. 1

Howard PLUMLEY, Administrator of the Estates of Nita Plumley, Deceased, et al., Plaintiff-Appellee, v. Alma KLEIN, Administratrix of the Estate of Claudia Ann Plumley, Deceased, Defendant-Appellant.

No. 10.

Supreme Court of Michigan.

July 26, 1972.

Marcus, McCroskey, Libner, Reamon & Williams, Muskegon, for plaintiffs-appellees.

Troff, Lilly, Piatt, File & Doyle, Kalamazoo, for defendant and appellant.

Before the Entire Bench.

WILLIAMS, Justice.

The principal issue of law presented in this case is whether the personal representative of deceased children may recover damages from the personal representative of the deceased mother under the Wrongful Death Act (M.C.L.A. § 600.2922, M.S.A. § 27A.2922) for ordinary negligence.

On May 22, 1969, Mrs. Claudia Ann Plumley was driving her husband's pickup truck on Highway M--40 in Van Buren County. In the truck with Mrs. Plumley as passengers were her children Nita, six years old, Virginia Lee, 4 years old, Melissa Kay, not quite two years old, and Howard Everett, ten months old. The vehicle driven by Mrs. Plumley collided with another pickup truck driven by Mr. David William Rumery. As a result of that collision Mrs. Plumley, her four children, and Mr. Rumery were killed.

Mr. Howard Plumley, husband and father of the deceased Mrs. Plumley and her children, filed a wrongful death action as personal representative of his deceased children against the personal representative of his deceased wife. The suit also named as defendants Mr. Rumery and Superior Market, the owner of the truck driven by Mr. Rumery. The complaint in this suit alleged that the four children were killed as a result of the negligence of both Mrs. Plumley and Mr. Rumery.

Defendant Alma Klein, administratrix of the estate of Claudia Ann Plumley, moved for summary judgment on the basis that as mother of the children the deceased Mrs. Plumley was immune from suit. The trial court granted the defendant Klein's motion for summary judgment

The Court of Appeals reversed the decision of the trial court in 31 Mich.App. 26, 187 N.W.2d 250 (1971). The Court of Appeals interpreted the legal logic of Mosier v. Carney, 376 Mich. 532, 138 N.W.2d 343 (1965) (hereinafter discussed) to apply in this case and held there was no reason for the continuation of intra-family immunity where the parties involved are deceased, 31 Mich.App. 26, 30, 187 N.W.2d 250. We granted the defendant Klein's application for leave to appeal on July 20, 1971.

The Guest Passenger Act is not applicable to this case as all of the deceased children were under seven years of age at the time of the accident. This Court held in Burhans v. Witbeck, 375 Mich. 253, 134 N.W.2d 225 (1965) that a child under the age of seven years does not have the ability to choose to be a guest passenger.

This Court determined in Elias v. Collins, 237 Mich. 175, 177, 211 N.W. 88 (1926) ¹ that:

'. . . It is a rule of the common law that a minor cannot sue his father in tort. The rule had its beginning in the interest of the peace of the family and of society, and is supported by sound public policy.'

A number of our sister states who once recognized the above rule have since abandoned it. ² Instead, they now recognize the right of a child to recover damages for injuries incurred as a result of negligent conduct on the part of his parent. As set out in footnote 2, the number of recent decisions in other states clearly indicates that the modern trend is towards the elimination of intra-family immunity. As Prosser has stated:

'Finally, in 1963, Wisconsin took the lead in declaring that the parent-child immunity was abrogated entirely in that jurisdiction, except as to exercises of parental control and authority, or parental discretion with respect to such matters as food and care. The decision set off something of a long overdue landslide; and at the present writing it has been followed in Alaska, Arizona, California Hawaii, Illinois, Kentucky, Louisiana, Minnesota, New Hampshire, New Jersey, New York, and North Dakota. The prediction is easy to make that the number of such jurisdictions will hence-forth be rapidly on the increase.' ³

This Court has itself moved toward an elimination of intra-family immunities. In Mosier v. Carney, 376 Mich. 532, 566, 138 N.W.2d 343, 355 (1965) ⁴ Justice Souris stated that:

'. . . We this day hold: (1) that a suit may be maintained predicated upon injuries to one spouse during marriage arising out of an allegedly wrongful act of the marital partner, when the allegedly wrongful act resulted in termination of the marriage by death; . . .'

The action in that case was by the personal representative of a deceased spouse killed as a result of the alleged gross negligence of the other spouse. The beneficiaries in Mosier were the children of the deceased spouse.

The Legislature also has moved toward an elimination of intra-family immunities. In Hosko v. Hosko, 385 Mich. 39, 44, 45, 187 N.W.2d 236, 238 (1971), we stated:

'It must be concluded that the Revised Judicature Act of 1961 has abrogated the doctrine of interspousal immunity insofar as women are concerned and that the action in this case is maintainable by plaintiff. Conversely, in a suit brought by a husband against a wife, the action would also be maintainable in accordance with the clear language of the statute.'

Incidentally a special but subsidiary point may be noted. As the Supreme Courts of our sister states Wisconsin and Minnesota have noted, ⁵ the widespread utilization of liability insurance suggested that intra-family lawsuits would seldom upset the tranquility of the family. Writing for the Wisconsin Supreme Court, Justice Currie stated:

'. . . Nevertheless, we consider the wide prevalence of liability insurance in personal injury actions a proper element to be considered in making the policy decision of whether to abrogate parental immunity in negligence actions. This is because in a great majority of such actions, where such immunity has been abolished, the existence of insurance tends to negate any possible disruption of family harmony and discipline.' Goller v. White, 20 Wis.2d 402, 412, 122 N.W.2d 193, 197 (1963).

Instead, an injured family member will merely be able to recover from an insurance company for injuries against which the company has been paid to insure.

We are persuaded that the modern rule ⁶ best serves the interests of justice and fairness to all concerned. The case of Elias v. Collins, Supra, which provides for intra-family tort immunity is overruled. A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, ⁷ however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.

We recognize that this new rule represents a final departure from Elias v. Collins, Supra. Therefore in the interests of justice and fairness, we hold that the new rule applies only to the instant case, and to all pending and future cases. We have followed this same course before when adopting a new rule of law. ⁸

The decision of the Court of Appeals is affirmed. The cause is remanded for future proceedings in conformity with this opinion. No costs, a question of general public importance being involved.

T. M. KAVANAGH, C.J., and ADAMS, T. G. KAVANAGH and SWAINSON, JJ., concur.

BLACK, Justice (dissenting).

The Court has chosen this sleaziest conceivable of pleaded causes as opportune for nullification of Elias v. Collins, 237 Mich. 175, 211 N.W. 88 (1926). More of Elias, later.

With judicial tenure voluntarily limited to a few months, I at first was inclined by the philosophy of futility to 'go along' (by concurrence in the ordered result) with this latest of a steady line of exuberant overrulements of settled tort-law decisions a once revered Court has handed down. There was yet another reason, admittedly cynical, for toleration from here on of more such defenseless predispositions. When the trial profession in particular is forced to endure progressive judicial destruction of the 'rule of law' in our State, the members thereof may observe resignedly that such doings Moderne do after all mean more rather than less law business. Whether this is in the public interest, apart from the interests of campaign contributors and political supporters, and whether it consists with the sworn duty of a Court of final resort, is something else. At any rate I cannot hold still before this latest judicial monster. Among other fatuities it will license one, proceeding under the Wrongful Death Statute as sole beneficiary of the cause alleged, to obtain a judgment he himself is legally liable to satisfy.

From here on I will proceed on assumption that this plaintiff, owner of the motor vehicle of death, has no--or insufficient--liability insurance. ¹

Such is an assumption we must indulge unless, of course, our majority is willing to say right out that Elias will continue to apply where the defendant has no liability insurance. That may indeed be the Court's intent, for I find below its quotation of Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963), this concluding sentence:

'Instead, an injured family member will merely be able to recover from an insurance company for injuries against which the company has been paid to insure.'

It is an assumption we must abide in view of section 3030 of the Insurance Code of 1956 (M.C.L.A. § 500.3030; M.S.A. § 24.13030) (discussed post); a statute which since 1929 has denied all right of original suit against the defendant's liability insurer.

It is an assumption we must employ upon review of every...