Plumley v. Klein

199 N.W.2d 169, 388 Mich. 1, 1972 Mich. LEXIS 109

• Court: Michigan Supreme Court
• Decided: July 26, 1972
• Docket: 10 January Term 1972, Docket No. 53,299
• Status: Published

Opinions

Williams, J.

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 (MCLA 600.2922; MSA 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 Burén County. In the truck with Mrs. Plumley as passengers were her children Nita, six years old, Virginia Lee, four 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 and her four children 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 (1971). The Court of Appeals interpreted the legal logic of Mosier v Carney, 376 Mich 532 (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. 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 (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 (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 intrafamily 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 henceforth 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 (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 Hosier 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 (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 NW2d 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 rule⁶ 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., concurred with Williams, J.

1 Prior to 1891 there had been no English cases, one Scottish case and three American cases considering tort liability of parents to children. All four cases allowed liability. 19 ALR2d 423, 425. Chief Justice Peaslee, in Dunlap v Dunlap, 84 NH 352, 354; 150 A 905, 906; 71 ALR 1055, 1058 (1930), said that there "never has been a common-law rule that a child could not sue its parent”. In 1891 Hewlett v George, 68 Miss 703; 9 So 885; 13 LRA 682, held that an unemancipated child could not sue her mother for false imprisonment on the basis that it was against the peace of society and family peace to allow such suits. Subsequently most of the courts of this country followed this precedent. 19 ALR2d 423, 425-426. See Elias v Collins, 237 Mich 175, 177 (1926).

2 See Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963); Brennecke v Kilpatrick, 336 SW2d 68 (Mo, 1960); Briere v. Briere, 107 NH 432; 224 A2d 588 (1966); Hebel v Hebel, 435 P2d 8 (Alas, 1967); Nuelle v Wells, 154 NW2d 364 (ND, 1967); Silesky v Kelman, 281 Minn 431; 161 NW2d 631 (1968); Gelbman v Gelbman, 23 NY2d 434; 297 NYS2d 529 (1969); also, France v APA Transport Corp, 56 NJ 500; 267 A2d 490 (1970); Thurman v Etherton, 459 SW2d 402 (Ky, 1970); Streenz v Streenz, 106 Ariz 86; 471 P2d 282 (1970); Gibson v Gibson, 3 Cal 3d 914; 92 Cal Rptr 288; 479 P2d 648 (1971); Falco v Pados, 444 Pa 372; 282 A2d 351 (1971); and Smith v Kauffman, 212 Va 181; 183 SE2d 190 (1971). In all of these cases the rule of parent-child tori immunity is abrogated in varying degrees. They illustrate that the modern trend is definitely toward the elimination of such immunity.

3 Prosser, Torts (4 ed), § 122, pp 867-868.

4 Applying the analogous reasoning of Mosier the Federal District Court for the Western District of Michigan held in Brinks v Chesapeake & O R Co, 295 F Supp 1318 (WD Mich, 1969), that the doctrine of parental tort immunity no longer applied in Michigan in cases where both the parent and child are deceased as a result of the alleged tortious conduct.

5 Goller v White, 20 Wis 2d 402, 412; 122 NW2d 193, 197 (1963); Silesky v Kelman, 281 Minn 431, 438-439; 161 NW2d 631, 636 (1968). See also Gibson v Gibson, 3 Cal 3d 914, 919; 92 Cal Rptr 288, 291; 479 P2d 648, 653 (1971).

6 Incidentally, as noted in footnote 1, we believe that what we have called the modern rule is also the original common-law rule.

7 Goller v White, supra; Silesky v Kelman, supra.

8 Womack v Buchhorn, 384 Mich 718 (1971); Daley v LaCroix, 384 Mich 4 (1970); Parker v Port Huron Hospital, 361 Mich 1, 28 (1960); and Bricker v Green, 313 Mich 218 (1946).