Sherby v. Weather Brothers Transfer Company, 13413.

• Decision Date: 20 February 1970
• Docket Number: No. 13413.,13413.
• Citation: 421 F.2d 1243
• Parties: Michael N. SHERBY, a minor by his mother and next friend, Yvonne M. Sherby, and Yvonne M. Sherby, in her own right, Appellants, v. WEATHER BROTHERS TRANSFER COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

421 F.2d 1243 (1970)

Michael N. SHERBY, a minor by his mother and next friend, Yvonne M. Sherby, and Yvonne M. Sherby, in her own right, Appellants, v. WEATHER BROTHERS TRANSFER COMPANY, Inc., Appellee.

No. 13413.

United States Court of Appeals, Fourth Circuit.

Argued January 9, 1970.

Decided February 20, 1970.

Robert C. Verderaime and Stanley Levine, Baltimore, Md. (Paul Berman, Verderaime & DuBois, Baltimore, Md., A Freeborn Brown and T. Carroll Brown, Belair, Md., on brief) for appellants.

Edward C. Mackie, Baltimore, Md. (Rollins, Smalkin, Weston & Andrew, Baltimore, Md., on brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BUTZNER, Circuit Judges.

BOREMAN, Circuit Judge:

Plaintiffs appeal from the dismissal of their amended complaint upon motion of the defendant, Weather Brothers Transfer Company, Inc.

On July 16, 1966, Michael Sherby, a minor, was riding as a passenger in a tractor trailer unit owned by defendant, Weather Brothers Transfer Company, Inc., and operated by Michael's father in the scope of the father's employment. Michael was injured when the tractor trailer unit collided in Maryland with another motor vehicle. Plaintiffs filed a complaint against Weather Brothers, seeking to recover damages based upon the negligence of the father, defendant's employee, while acting within the scope of his employment. Following Weather Brothers' motion to dismiss the original complaint, plaintiffs filed an amended complaint adding Eastern Greyhound Lines and Greyhound Lines, Inc., as additional defendants. Weather Brothers moved to dismiss the amended complaint, which motion was granted on the ground that, under Maryland law, a minor may not sue his father's corporate employer in tort to recover for injuries sustained as a result of the negligence of the father in the course of his employment.

Since this action is based upon negligence in the operation of a vehicle upon a public highway in Maryland, the federal court will be governed by the law of that state. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In the absence of a state statute or a controlling decision directly in point a federal court will attempt to determine what the highest state court would hold if confronted with the same issue. Tavernier v. Weyerhaeuser Company, 309 F.2d 87, 91 A.L.R.2d 1268 (9 Cir. 1962); In Re Roosevelt Lanes, Inc., 234 F.Supp. 842 (E.D.N.Y.1964). Considered dicta in the opinions of the highest state court should not be ignored; and dictum which is a clear exposition of the law must be followed unless in conflict with other decisions of that court. Hartford Acc. & I. Co. v. First Nat. B. & T. Co. of Tulsa, Okl., 287 F.2d 69 (10 Cir. 1961); Jess Edwards, Inc. v. Goergen, 256 F.2d 542 (10 Cir. 1958).

The district court, looking to dicta in decisions of the Court of Appeals of Maryland, held that this action could not lawfully be maintained against Weather Brothers in Maryland. We affirm.

In Schneider v. Schneider, 160 Md. 18, 21-22, 152 A. 498, 72 A.L.R. 449 (1930), the Maryland court in denying recovery of damages to a mother for injuries sustained by her while riding in a vehicle owned by one son and operated by another indicated that it would not allow a suit by a child against his parent, as the court said:

"The obstacle to the mother\'s recovery against James Schneider her son is in the fact that she sues a minor son, of whom she, jointly with the father, is the natural guardian. * * * The ordinary position of parent and guardian of a minor, and that of plaintiff seeking to recover from the minor, are positions which cannot both be occupied by one person at one and the same time. Maintenance of the suit is inconsistent with the parent\'s status or office, and the dependence of the minor upon her, and also with the dependence of the law upon her for the fulfilment of necessary legal and social functions. A right of action at law is not one open to any and all persons against any others, without reference to relationships which may exist between them. This court has decided that a wife cannot sue her husband for damages sustained in an automobile accident * * It appears that a majority of courts in which the question has arisen have decided that a minor child cannot maintain such an action against its parent — a question differing somewhat from the one now decided." (Emphasis added.)

Villaret v. Villaret, 83 U.S.App.D.C. 311, 169 F.2d 677 (1948), involved the question whether an unemancipated minor child may sue his parent for a tortious act. In applying Maryland law, the court cited Schneider as authority and stated at p. 678:

"As the Maryland court thus holds that a mother may not sue her infant son for injuries caused by his negligent operation of an automobile in which she was a passenger, it would be illogical to suppose its holding would be different were it confronted with the converse of the situation. Indeed, the seeming approval with which the Court of Appeals of Maryland referred, in the language just quoted, to the established principle that a minor child cannot maintain a tort action against a parent, clearly indicates that, upon occasion, the general rule would be adopted." (Emphasis added.)

In Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951), the court again recognized the rule of parental immunity, but carved out a narrow exception that when a parent is guilty of acts which show complete abandonment of the parental relation, e. g., where the father murdered the mother in the presence of the child and committed suicide one week later, also in the child's presence, the rule of immunity does not apply. The court said, at p. 68, 77 A.2d at p. 926:

"It is conceded, of course, that parental authority should be maintained. It is also conceded that a child should forego any recovery of damages if such recovery would unduly impair discipline and destroy the harmony of the family. Ordinarily, the parent is not liable for damages to the child for a failure to perform a parental duty, or for excessive punishment of the child not maliciously inflicted, or for negligent disrepair of the home provided by the father. These acts grow out of and pertain to the relation of parent and child. But when, as in this case, the parent is guilty of acts which show complete abandonment of the parental relation, the rule giving him immunity from suit by the child, on the ground that discipline should be maintained in the home, cannot logically be applied, for when he is guilty of such acts he forfeits his parental authority and privileges, including his immunity from suit."

The district court for the District of Maryland, in Zaccari v. United States, 130 F.Supp. 50, 53 (D.Md.1955), stated:

"I conclude, as did the Court of Appeals for the District of Columbia in Villaret v. Villaret, supra, that under the Maryland law an infant cannot sue her parent for injuries sustained in an automobile accident."

Finally, in Dennis v. Walker, 284 F.Supp. 413 (D.D.C.1968), although the court did not apply Maryland law, it did discuss the development of the parental immunity doctrine in Maryland. At page 416 the court said:

"It is interesting to observe * * * that previously the Court of Appeals for the District of Columbia was confronted with this question under the law of Maryland, * * *. On a thorough review of the law of that State on cognate topics, the Court * * * reached the conclusion that the law of Maryland would adopt the rule of parental immunity and would not permit a minor child to maintain an action against a parent for damages for personal injuries caused by the parent\'s negligence. This decision proved to be prophetic. Subsequently, in Mahnke v. Moore, citation omitted the Court of Appeals of Maryland reached that conclusion and formally adopted the doctrine, that a parent is not liable to damages to a child for a failure to perform a parental duty."

Plaintiffs argue that these cases holding that a child cannot maintain an action against its own parent does not bar the child's action against the parent's employer based upon the parent's negligence because the employer is "one step removed" from the close family circle and recovery against the employer would not result in interference with the family relationship....