Smith v. Gross

• Decision Date: 01 September 1989
• Docket Number: No. 79,79
• Citation: 319 Md. 138,571 A.2d 1219
• Parties: Virginia Lee SMITH, Individually, etc. v. Roland Randolph GROSS, Sr. ,
• Court: Maryland Court of Appeals

Page 138

319 Md. 138

571 A.2d 1219

Virginia Lee SMITH, Individually, etc. v. Roland Randolph GROSS, Sr.

No. 79, Sept. Term, 1989.

Court of Appeals of Maryland.

April 9, 1990.

H. Albert Korn, Baltimore, for appellant.

Edgar A. Baker, Jr. (Seidel and Baker, on brief), Salisbury, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and ADKINS, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired) Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

I

Virginia Lee Smith is the natural mother of Roland Randolph Gross, Jr. The child was sired by Roland Randolph Gross, Sr., and born out of wedlock. ¹ The child was killed in an automobile accident a few days after his second birthday. The mother brought an action in the Circuit Court for Dorchester County against the father, alleging that the child died as a result of the father's negligence. In the first count of the Complaint, the mother instituted a survival action. She claimed damages as the personal representative of the estate of the child for "the great conscious physical and emotional pain and suffering sustained by [the child] prior to his death and for funeral expenses...." In the second count, the mother instituted a wrongful death action. As the surviving mother of the child, she claimed damages involving the elements of solatium suffered by her by reason of "the tragic loss of her [only] son." In what was labeled as a third count, the mother, both as personal representative of the estate of the child and as the surviving mother of the child, claimed punitive damages.

The actions went before the court on the father's "Motion to Dismiss the Complaint," founded on the "failure to state a claim upon which relief can be granted." Md.Rule 2-322(b)(2). The court granted the motion. The mother noted an appeal. We certified the case to us ex mero motu before decision by the Court of Special Appeals.

II

We pointed out in Sharrow v. State Farm Mutual, 306 Md. 754, 511 A.2d 492 (1986):

Under Md.Rule 2-322, a motion to dismiss for failure to state a claim serves the same function as the demurrer under former Rules 345 and 371 b.... Consequently, in considering the legal sufficiency of [a] complaint to allege a cause of action for tortious interference, we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings.... On the other hand, any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader.

Id. at 768, 511 A.2d 492 (citations omitted). The relevant and material facts set out in the Complaint here were sufficient to establish, if proved, that Virginia Lee Smith was the natural mother of the child, that she was the personal representative of his estate, that the child was killed in an automobile accident caused by the negligence of the father and that the mother and the child sustained damages therefrom. The Motion to Dismiss related that Gross, Sr., was the natural father of the child. The Answer to the Motion to Dismiss alleged that the mother and the father were never married, that the child "was born out of wedlock, and lived with his mother from the time of his birth until his death and never lived with his father."

III

Maryland Code (1974, 1989 Repl.Vol.), § 6-401(a) of the Courts and Judicial Proceedings Article provides, except as to a cause of action for slander, that "a cause of action at law, whether real, personal, or mixed, survives the death of either party." Maryland Code (1974), § 7-401(x) of the Estates and Trusts Article authorizes a personal representative to prosecute, for the benefit of the estate, "a personal action which the decedent might have commenced or prosecuted...." (Emphasis added.) Such an action survives the decedent except for the slander of him during his lifetime, in which case the action dies with him. Section 7-401(x)(1). ² Maryland Code (1989), § 3-901 through § 3-904 of the Courts and Judicial Proceedings Article creates an action for a wrongful death. Section 3-902(a) provides that "[a]n action may be maintained against a person whose wrongful act causes the death of another."

"Wrongful act" means an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.

Section 3-901(e) (emphasis added). A parent, among others, may institute the action as a primary beneficiary. Section 3-904(a). ³

The survival statute and the wrongful death statute have in common the authorization to commence and prosecute a personal action after the death of the decedent if the decedent ⁴ might have maintained the action when he was alive. The father urges that the child was barred from suing him by the doctrine of parent-child immunity, as adopted and applied by this Court.

The general rule is that defenses which would have been good against the decedent, had the decedent survived, are good against the decedent's personal representatives and, in their capacity as Lord Campbell's Act claimants, the decedent's survivors. As to survival actions, see 4 Harper, James & Gray, The Law of Torts, § 23.8 at 449 (2d ed. 1986) ("Where the statute provides for the survival of [the decedent's] action, the surviving action is derivative in the fullest sense of the term, and the result of the cases [i.e., contributory negligence of decedent bars estate's action] comes as near to being demanded by inexorable logic as anything does"). Actions under Maryland's Lord Campbell's Act, however, are not as purely derivative as survival actions. That statute's requirement of an act "which would have entitled the party injured to maintain an action and recover damages if death had not ensued," clearly excludes a wrongful death action if there would be no cause of action on the decedent's part, had the decedent survived. See State, Use of Bond v. Consol. Gas, etc. Co., 146 Md. 390, 126 A. 105 (1924) (holding, prior to the "fall of the citadel," that a wrongful death action based on an allegedly defective product did not lie on behalf of survivors of a deceased child who was not in privity with the defendant seller). Of particular significance here is that the decedent, if surviving, not only must have been able to "maintain an action" but also to "recover damages." We have, in effect, interpreted this language to include defenses. See Frazee v. Baltimore Gas & Elec. Co., 255 Md. 627, 258 A.2d 425 (1969) (contributory negligence of decedent is defense to survivor's Lord Campbell's Act claim); State, Use of Brandau v. Brandau, 176 Md. 584, 6 A.2d 233 (1939) (same); State, Use of Potter v. Longeley, 161 Md. 563, 570, 158 A. 6, 8 (1932) (same); North Cent. Ry. Co. v. State, Use of Burns, 54 Md. 113 (1880) (same); State, Use of Foy v. Philadelphia, Wilm & Balto. R.R., 47 Md. 76 (1877) (same); see also Baltimore & Potomac R.R. v. State Use of Abbott, 75 Md. 152, 23 A. 310 (1892) (assumption of risk by decedent is defense). Thus, the issue here is whether the defense of parental immunity is an exception to the general rule.

IV

Some 50 years ago, we adopted a general rule refusing to allow actions between parent and minor child for personal torts. Schneider v. Schneider, 160 Md. 18, 152 A. 498 (1930). See Frye v. Frye, 305 Md. 542, 505 A.2d 826 (1986). Over the years we have recognized two exceptions. We have held that immunity does not apply with respect to a minor child and a parent whose conduct was cruel and inhuman or wanton and malicious, and with respect to a parent and a child who is emancipated at the time the conduct occurred. Frye at 546-548, 505 A.2d 826, citing Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951), and Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617 (1957). We have, from time to time, refused to abrogate the rule or to modify it further. Against the modern trend, we specifically declined to do so generally as to motor torts. In the light of compulsory motor vehicle liability insurance, part of an elaborate scheme constructed by the legislature for the general welfare and protection of the people of this State, we believed that a blanket exception of motor vehicle torts from the parent-child immunity rule was best left to the General Assembly. Frye, 305 Md. at 562-567, 505 A.2d 826. The General Assembly has not acted in this regard. The mother, however, urges that the parent-child immunity rule is simply not applicable because the rationale supporting the rule is not appropriate under the facts and circumstances here.

V

The rationale of the rule is that it

is founded upon the relation in which the parent and the unemancipated minor child stand to each other. The reciprocal dependence and entitlement of that relationship promotes a public policy which the rule reflects.

Frye, 305 Md. at 548, 505 A.2d 826. ⁵ The public policy which the rule reflects has been long recognized by this Court. We observed in Frye, 305 Md. at 551-552, 505 A.2d 826:

It is clear that for over half a century this Court has recorded its belief in the importance of keeping the family relationship free and unfettered. Our primary concern with regard to matters involving the parent-child relationship was the protection of family integrity and harmony and the protection of parental discretion in the discipline and care of the child. We have steadfastly recognized the authority of parents and their need to fulfill the functions devolved upon them by that position. The parental status should be held inviolate so that there be no undue interference with the dependence of the minor unemancipated child on the parents for such judgment and care needed during the child's minority or with the dependence of the law on the parent for fulfillment of the necessary legal and social functions associated with the office of parent. This Court has...