Latz v. Latz A/K/A Schafer

Orth, J., delivered the opinion of the Court. In Schneider v. Schneider, 160 Md. 18 , Ludwig Schneider and James Schneider appealed from a judgment against them by their mother for personal injuries sustained by her while riding in an automobile owned by Ludwig and driven by James. There was no question of the legal sufficiency of the evidence to support a finding ⁷²² of negligence on the part of James in driving the automobile. The Court found that neither Ludwig nor James ■could in law be held answerable to their mother for injuries caused by the negligence of James.

Why James ■could not be so held is directly relevant to the case before us. 1 The Court said, at 21-24: “The obstacle to the mother’s recovery against James Schneider is in the fact that she sues a minor son, of whom she, jointly with the father, is the natural guardian. Acts 1929, ch. 561, sec. 1; Code, art. 72A, sec. 1. 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 fulfillment 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. The court has decided that a wife cannot sue her husband for damages sustained in an automobile accident. Furstenburg v. Furstenburg, 152 Md. 247 . 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.

Hewlett v. George, 68 Miss. 703 ; McKelvey v. McKelvey, 111 Tenn. 388 ; Roller ⁷²³ v. Roller, 37 Wash. 242 ; Small v. Morrison, 185 N. C. 577 ; Wick v. Wick, 192 Wis. 260 ; Mata rese v. Matarese, 47 R. I. 131; Sorrentino v. Sorrentino, 222 App. Div. 171 , 226 N. Y. Supp. 907 , affirmed 248 N. Y. 626 ; Mesite v. Kirchenstein, 109 Conn. 77 , 145 Atl. 753 ; Dunlap v. Dunlap, (N. H. 1930), 150 Atl. 905 . See study of cases, 43 Harvard Law Rev. 1056 to 1082. It is generally agreed that a guardian, or one standing in place of a parent, cannot sue his ward, because, committed as he is to the care and protection of the ward’s interests, going to law with the ward to recover a judgment against him and his property is precluded as inconsistent. ‘That an action at common law cannot be maintained between a guardian and a ward,’ said the Supreme Judicial Court of Massachusetts, ‘is clear. The character of that relation, the capacity in which the guardian acts, the duty to the ward’s property, (even if a guardian ad litem may be appointed where he is interested), forbid that they should occupy the distinctly adverse position of suitors at common law, especially as to transactions since the guardianship commended. * * * It is the relation in which the parties have stood to each other, rather than the fact that property has or has not come to the hands of the guardian, that renders it inconvenient and improper that either should undertake to sue the other at common law.’ McLane v. Curran, 133 Mass. 531 .

See Davis v. Davis, 135 Miss. 214 ; Kidd v. Prince (Texas) 215 S. W. 844 ; Davis v. Admrs. of Ford, 7 Ohio, Pt. 2, 104, 109; Brown v. Howe, 9 Gray (Mass.) 84 ; Smith v. Dudley, 16 N. C. 354 . And the inconsistency which prevents the maintenance of the suit by a guardian, one in loco parentis, would seem at least equally opposed to the maintenance of a suit by a parent. The case of Kidd v. Prince, ⁷²⁴ supra, was one of a parent suing a child. A minor is even more dependent upon a parent to provide for him the judgment and care which he, and any property of his, may need during his immaturity.

In a suit against him he would ordinarily depend upon his parents to procure him an attorney, for he cannot appoint one. Wainwright v. Wilkinson, 62 Md. 146, 147 . Kemp v. Cook, 18 Md. 130 . One of his parents would ordinarily be appointed guardian ad litem, he being incapable of defending except by guardian.

Deford v. State, 30 Md. 179, 199 . And even if, in view of the antagonistic position sought to be taken by the parent, another might be appointed guardian ad litem, the natural dependence of the child on the parent would inevitably leave him largely subject to the parent’s guidance and direction. There would be a question whether the parent would not be obliged to pay the expenses of litigation of the child.. And if the child should have property of his own, a. parent suing would be in the position of seeking to gain for herself some of that property, while charged with the function of protecting the child’s interest in it.

Townshend v. Duncan, 2 Bland, 45 , 51. It seems clear, without citing further difficulties, that, as has been stated, one person cannot at the same time occupy the position of parent and natural guardian, fulfilling the functions devolved upon that position, and the position of plaintiff demanding damages from the child at law. We need not dwell upon the importance of maintaining the family relation free for other reasons from the antagonisms which such suits imply. ‘Both natural and politic law, morality, and the precepts of revealed religion alike demand the preservation of this relation in its full strength and purity.’ Schouler, Domestic Relations, sec. 233.” ⁷²⁵ For the first time since Schneider an appellate court of this State is presented with the precise question decided therein. Margaret Latz died from injuries received while a passenger in an automobile negligently driven by her unemancipated, minor daughter, Joanne Latz.

Frank W. Latz, Margaret’s husband and Joanne’s father, sued his infant daughter in tort, claiming damages, as Administrator of his intestate wife’s estate, for pain, suffering, death and medical and funeral expenses, Code, Art. 93, § 112, 2 3 and, as surviving husband, for pecuniary loss, loss of services and disruption of the marital relationship, Code, Art. 67, §§ 1 and 4. Joanne demurred and the demurrer was sustained without leave to amend. Appeal is from the judgment absolute entered in favor of Joanne. 8 The primary question is whether appellee could in law be held answerable to her mother for injuries caused by appellee’s negligence. 4 It is clear that if Schneider is applied, appellee is immune from the action brought against her by appellant. Appellant suggests that we overrule Schneider or depart from its rule.

We are not persuaded to do so. Although the Court of Appeals has not had occasion to reaffirm the rule directly, it has recognized it and applied its rationale. In Mahnke v. Moore, 197 Md. 61 , the Court recognized the rule of immunity but based an exception to it on narrow grounds. The question was whether a child could maintain an action in tort for personal injuries resulting from the acts of her father. 5 *However, the acts ⁷²⁶ were not merely negligent, they were wantonly and maliciously atrocious. 6 The Court said, at 68, that in the circumstances: “[Tjhere can be no basis for the contention that the daughter’s suit against her father’s estate would be contrary to public policy, for the simple reason that there is no home at all in which discipline and tranquillity are to be preserved.

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. Justice demands that a minor child shall have a right of action against a parent for injuries resulting from ⁷²⁷ cruel and inhuman treatment or for malicious and wanton wrongs.” In Yost v. Yost, 172 Md. 128 , holding that a parent is not liable to a child for neglect — passive negligence of nonfeasance — incident to the parental relation, as distinguished from “overt acts of tort”, the Court applied the Schneider rationale saying: “The doctrine is founded upon public policy, and is designed to preserve the peace and harmony of the home, as well as to recognize the authority of the parent, under normal conditions, responsible for the maintenance of the home.” Expanding the rule that precludes one spouse from recovering damages for injuries caused by the negligence of the other spouse by holding that a husband’s employer is not liable to an employee’s wife for injuries sustained by her as a result of her husband’s negligence while acting within the scope of his employment, Riegger v. Bruton Brewing Co., 178 Md. 518 , even if she was a paying passenger in a taxicab driven by her husband, Stokes v. Taxi Operators Assn., 248 Md. 690 , the court followed three lines of cases, one of which was Schneider . 7 Schneider was cited as the law of Maryland and its rationale applied by the United States District Court of Appeals for the District of Columbia in holding that an unemancipated minor child could not sue his parent for a tortious act in Villaret v. Villaret, 169 F. 2d 677 , as did the United States District Court for the District of Maryland in Zaccari, et al. v. United States, 130 F. Supp. 50 . And in Sherby v. Weather Brothers Transfer Co., Inc., 421 F. 2d 1243 , (1970) the United States Court of Appeals for the Fourth Circuit concluded that the Maryland Court of Appeals would follow the same line of reasoning as in Riegger in holding that a minor child cannot recover ⁷²⁸ from Ms father’s employer in an action based upon the father’s negligence while acting within the scope of his employment. At 1246.

We are aware that Prosser on Torts, 3 ed., 1964, § 116, p. 885, under Domestic Relations, Torts in the Family, points out that there is great inconsistency and unsatisfactory reasoning in the various cases on the subject, particularly as to civil liability of husband or wife or parent or minor child to one another. It was observed that the common law conception of unity of legal identity of husband and wife had no similar conception of unity of legal identity in the case of parent and minor child. Clark, Domestic Relations (1968), § 9.2, pp. 256-260, strongly advocates abolition of the immunity with respect to parent and unemancipated child, 8 considering policies advanced in support of the immunity as “make-weights.” 9 We are also aware that there is a growing trend in other jurisdictions to abolish the parent-unemancipated child immunity. See, for example, France v. A.P.A. Trans ⁷²⁹ port Corp., 56 N. J. 500, 267 A. 2d 490 (N. J. 1970); Streenz v. Streenz, 106 Ariz. 86 , 471 P. 2d 282 (Ariz. 1970) ; Gelbman v. Gelbman, 23 N.Y.2d 434 , 245 N.E.2d 192 (N. Y. 1969) ; Schenk v. Schenk, 100 Ill.App.2d 199 , 241 N.E.2d 12 (Ill. 1968); Briere v. Briere, 224 A. 2d 588 (N. H. 1966).

And see also Petersen v. Honolulu, 462 P. 2d 1007 (Hawaii 1970) ; Hebel v. Hebel, 435 P. 2d 8 (Alaska 1967) ; Nuelle v. Wells, 154 N.W.2d 364 (North Dakota 1967) ; Balts v. Balts, 142 N.W.2d 66 (Minnesota 1966) ; Xaphes v. Mossey, 224 F. Supp. 578 (Vermont 1963) ; Dunlap v. Dunlap, 84 N. H. 352, 150 A. 905 (N. H. 1930); Annotation — Right of parent or representative to maintain tort action against minor child, 60 A.L.R.2d 1284 -1296. We note that in Sherby v. Weather Brothers Transfer Co., Inc., supra, it was argued that the general trend is toward liberalization and that a growing number of courts have abolished the parent-child immunity rule. The Court said, at 1246: “This argument failed to persuade the district court and we decline to follow and apply it here in the face of the apparent leaning of the highest court of Maryland toward a contrary view.” We do not think that the fact that appellee may have been protected by liability insurance affects the answer to the question. 10 There is no doubt of the attitude of the Court of Appeals on the effect of liability insurance for it said in Schneider at 24: “Reference has been made in argument to policies or contracts held by one or both of the sons for indemnifying them against loss from ⁷³⁰ recovery of judgment against them, but there is no reference in the record to such policies. They would not be relevant.

The suit is not one on a policy, and the possession of a policy by the defendants could not affect the disposition of this case. International Co. v. Clark, 147 Md. 34, 42 . And see Lord v. Veazie, 8 How. (U. S.) 251.” See Villaret v. Villaret, supra, at 679.

Prosser states, Law of Torts, supra, § 116, p. 889 as to liability insurance: “Most of the courts which have mentioned the matter at all, instead of deciding the question as one of policy, have gone off on the narrow technical ground that liability insurance does not create liability, but only recompenses it when it otherwise exists. On this basis, it is still undoubtedly the general holding that the fact that the particular defendant has insurance does not change