This case requires us to examine the doctrine of parent-child immunity, which has been part of the law of Maryland since 1930.
See Warren v. Warren,
In 1994, James K. Eagan, appellee, the court-appointed guardian of the property of two minor children, Laura M. Calhoun and Kevin J. Calhoun, filed a wrongful death action against John C. Calhoun, appellant, in the Circuit Court for Howard County. He alleged that appellant, the father of Laura and Kevin, deliberately or recklessly killed Gladys E. Calhoun, appellant’s wife and the children’s mother. Appellant contended that the action was barred by parent-child immunity. The circuit court disagreed, ruling that Calhoun’s conduct fell within the Mahnke exception. Thereafter, a jury found in favor of the children and awarded them $2,360,000 in damages. The jury, however, was unable to reach a verdict on the issue of whether appellant’s actions “were atrocious, showfed] a complete abandonment of the parental relation, were intentional, were willful and were malicious.” Nevertheless, the circuit court determined that this inability was of no consequence and entered judgment in favor of appellee.
Calhoun now appeals and presents two questions for our consideration:
I. Did the Court err by not enforcing the parent-child immunity law of the State of Maryland in favor of Appellant and in denying Appellant’s Trial Motion for Summary Judgment and Motions for Directed Verdict?
II. Did the failure of the jury to reach a verdict on question 2 of the verdict sheet substantiate that Appellant’s conduct was within the framework of parent-child immunity? ■
We conclude that it was a question for the jury as to whether appellant’s conduct was cruel and inhuman or wanton and malicious, so as to fit within the Mahnke exception. Therefore, the circuit court erred in ruling upon the issue as a matter of law. Moreover, the jury was unable to reach a verdict on that critical issue. Therefore, we shall reverse the judgment and remand the case for a new trial.
FACTUAL SUMMARY 1
John and Gladys Calhoun were married on June 15, 1974. The couple had two children: Laura, born on October 4, 1980 and Kevin, born on July 23, 1982. The Calhouns both worked for the National Security Agency (“NSA”). They experienced difficulties in the marriage; appellant conceded that he had an extramarital affair with a co-worker at the NSA, which family members knew about and Ms. Calhoun suspected.
The events at the center of this case occurred on May 13, 1992. That afternoon, the Calhouns decided to clean the gutters of their home. Appellant leaned a ladder against the side of the house, and Ms. Calhoun climbed the ladder as her husband held it. While his wife was on the ladder, Calhoun kicked it, causing her to fall to the ground. Appellant did not call 911 or otherwise attempt to summon help. In addition, although he had been trained in CPR, he did not attempt to help his wife. Instead, he washed, changed his clothes, and then drove to a hardware store to purchase joint compound. He then went to pick up Laura at her school, where he met with a teacher. An hour later, he picked up Kevin at his school. Thereafter, he drove his children home. After arriving at the house, he maneuvered his children away from the side of the house where their mother’s body was lying. That evening, he took both his children to a softball game in which Laura participated.
At approximately 9 p.m. that evening, Laura called her aunt and uncle, Javier and Milagros Santiago. Mr. Santiago was Gladys Calhoun’s brother. Laura was trying to find her mother and asked the Santiagos whether they knew where she was. Ms. Santiago responded that she did not know. At 10 p.m., Ms. Santiago called appellant and asked whether Ms. Calhoun was in the house. Calhoun responded that she was not. He also stated that her car was not at the house, but that her pocketbook was in the kitchen. Worried, the Santia gos decided to drive to the Calhoun residence, along with their sons, Yiloiz and Nell.
At 10:25 p.m., Calhoun called 911 and reported his wife missing. At approximately 10:30 p.m., he called Jennifer Calhoun Rydings, a daughter from a prior marriage, and told her he could not find his wife. He asked Rydings to come to the house, which Rydings agreed to do.
When the Santiagos arrived at the house at approximately 10:40 p.m., Mr. Santiago began asking questions about his sister’s whereabouts. After seeing her keys, wallet, and driver’s license in the kitchen, Mr. Santiago asked how her car could be gone. Calhoun responded that the car was “in the shop.” Mr. Santiago asked for a flashlight in order to begin a search. He told Yiloiz, his sixteen-year-old son, to look in the living room and on the porch. When Yiloiz went to the porch, he saw his aunt’s body on the ground.
Yiloiz immediately ran to the kitchen and alerted his mother, and then raced to the garage where his father and appellant were standing. Everyone went to the place where Ms. Calhoun’s body was lying. Mr. Santiago touched Ms. Calhoun’s legs and found them
Rydings arrived at the house and encountered Yiloiz as he was running down the driveway to meet the ambulance. Yiloiz told her that something was “wrong” with Gladys. Still unsure of what was happening, Rydings drove to the house and ran through the front door. Ms. Santiago then led her to Ms. Calhoun’s body. Rydings felt Ms. Calhoun’s neck for a pulse and could not find any. She also found her body to be “very, very stiff.” Later, Rydings saw her father begin to cry and fall to the ground. Rydings testified at trial that, at that point, “I got very angry because immediately I just knew he had something to do with this. I mean, I don’t know how, I just knew and I was very angry, very angry.”
Rydings telephoned her sister, Jacqueline Calhoun, another daughter from appellant’s prior marriage, and told her what had happened. Jacqueline drove to her father’s house and remained there until approximately 4 a.m.
Medical personnel arrived at the scene and pronounced Ms. Calhoun dead. Howard County police were dispatched to the house at 10:54 p.m. Officer T.R. Read examined Ms. Calhoun’s body and observed a significant skull fracture and a large amount of dried blood on Ms. Calhoun’s head and arms. He also saw two large dried blood stains on a blue plastic tarpaulin that was covering a stack of scaffolding behind Ms. Calhoun’s body. In addition, he noted a small area of blood spatter on the tarpaulin, consistent with an impact area where Ms. Calhoun’s head would have hit the tarpaulin.
Homicide detective Frank Dayhoff arrived at 11:39 p.m. and took charge of the investigation. At 12:30 a.m., Detective Dayhoff conducted the first of a series of interviews with appellant. Calhoun initially indicated that he did not know how his wife had died. He said that he had left his house between 1:30 and 2:00 p.m. to purchase joint compound, then went to pick up his children at school, returned home at approximately 4:30 p.m., and then took his children to dinner and a softball game. He acknowledged that Gladys had suspected him of having an affair with a co-worker, but added that this was not true and Gladys’s suspicions were “nonsense.” He also stated that he and his wife had had a good relationship and had been rebuilding their marriage since March 1992. On May 21, 1992, eight days after his wife’s death, Detective Dayhoff again interviewed appellant. Calhoun provided an account that was consistent with the one that he had first given.
On the night of June 6, 1992, Detective Dayhoff interviewed appellant for a third time. He was accompanied by Lieutenant Sam Bowerman. The detective confronted Calhoun with a note that one of his wife’s co-workers had written. The coworker stated that, about two weeks before her death, Ms. Calhoun had said, “If I die suddenly, it won’t be an accident. You don’t know what he is capable of doing.” After reading the note, Calhoun became visibly shaken and pale. He then stated: “I kicked the ladder and she fell. It was all over a simple thing.”
Appellant also provided Detective Dayhoff with the following information. He stated that he and Gladys were talking as she climbed the ladder; the conversation grew heated. According to the detective’s testimony at trial, appellant related that his wife made a caustic remark “about something that had happened between them, something he had tried to do in Lancaster, PA a few weeks before.” As this remark “challenged his manhood,” appellant became angry at her because “she was right.” Calhoun then kicked the ladder.
An autopsy was performed on Ms. Calhoun by Dr. Dennis Chute, an assistant medical examiner. Dr. Chute concluded that Ms. Calhoun had died from head injuries sustained in a fall from a ladder. He classified the death as a homicide.
In July 1992, appellant was arrested and charged with second degree murder, voluntary manslaughter, and reckless endangerment. On March 11, 1993, pursuant to a plea agreement, appellant pleaded guilty to voluntary manslaughter, pursuant to an agreed Statement of Facts. On June 24, 1993, he was sentenced to five years imprisonment. When the civil trial began on March 13, 1995,
At the civil trial, Rydings testified that her father had informed her of his intention to get a divorce. She also knew her father had contacted a lawyer in order to attempt to arrange an amicable divorce settlement. The reason for this, according to Rydings, was that Calhoun believed that his previous divorce had cost him much financially, for which he was “extremely angry.” Rydings testified:
He didn’t want to loose [sic] his money. It really bothered him that he was going to have to [lose] his money because he knew that in a divorce she would get the .kids, the house, the whole thing and he didn’t want to go through that again after he had gone through it with my mother.
Rydings also stated that, according to her father, the lawyer said: “[Y]ou don’t need a lawyer, you need a hit man.”
Jacqueline Calhoun also testified that her father had spoken to her about a divorce. She stated that the financial circumstances of his previous marriage were “always a sore subject” between her mother and father. She added: “Dad would always say Mom got everything.” Additionally, she testified that her father had “a very, very high temper,” a characteristic that she and her sister regarded as “almost comical.” Additionally, she said that after leaving her father’s house in the early morning hours of May 14, 1992, she proceeded directly to the police station, because she felt the death was not accidental. 2
Detective Dayhoff testified that Ms. Calhoun’s injuries were inconsistent with a fall from a ladder. He particularly relied on the fact that Ms. Calhoun had two head wounds. He stated: “It is inconceivable that a person could fall and even if they fell directly on the top of their head, could receive two large gaping wounds that fractured the skull in these places from the fall.” Autopsy photographs substantiated that Ms. Calhoun had two head wounds.
In addition, Detective Dayhoff testified that Ms. Calhoun’s body lacked “ancillary injuries” that would be consistent with a fall from a ladder. These injuries would include compression fractures and contusions or fractures in her shoulders, elbows, hips, or knees. He reasoned that, when a body falls, it strikes the ground in a number of different places. In Detec tive Dayhoffs view, Ms. Calhoun “slid” down the ladder, sustaining contusions on her lip and nose when they hit the rungs, and landed in a sitting position. Then, Ms. Calhoun was struck in the head with great force by a blunt object. The force caused her head to strike the tarpaulin, resulting in the blood stains.
Dr. Chute testified, however, that Ms. Calhoun’s injuries were consistent with a fall from a ladder, although he conceded that it was “possible” that the two head wounds could have been caused by blows from an object, such as a two-by-four. He further stated that it was possible that her injuries were caused by an event other than a fall from a ladder or a blow to the head, “because the wounds are not specific of a particular object which the skull or the scalp came in contact with.”
Both Laura and Kevin testified briefly at trial. They each stated that they had loved their mother and that they missed • her. In addition, both children have received counseling while residing with Susan and Robert Hereth, who are apparently friends of appellant. Their counselor, Dr. David C. Williams, also testified at trial. He stated that Laura was fearful of her father, did not trust him, and did not wish to live with him after he was released from prison. Dr.
In his testimony, Calhoun insisted that the incident was an accident, and that he did not intend to kill his wife. Calhoun gave virtually the same account of the occurrence that he had given to the police in his third interview, but with one variation. He stated that he kicked the ladder because he was angry at himself, not Gladys. He explained that the subject of Lancaster, Pennsylvania referred to a shopping trip with his wife to make amends for his extramarital affair. When his wife mentioned Lancaster, appellant became angry and disappointed in himself for what he had done “behind my wife’s back.” It was then that he kicked the ladder. The next thing he knew, his wife was lying face down on the ground next to him. Calhoun testified that he realized that she was not breathing and then ran to call 911. Once inside the house, however, he decided that he needed to “get her breathing” again. He walked outside, tried unsuccessfully to turn his wife over, and then “panicked” and left. Appellant further stated that he wanted to preserve his marriage with Gladys; he ended his affair with the co-worker, adding that it was inexcusable but it was not “a long term relationship.” Calhoun also admitted that he had lied to the police during his initial interviews.
Further, Calhoun testified that, after their mother’s death, Laura and Kevin lived with him. Appellant said that, as appellant’s sentencing approached, he made arrangements for the children’s care. On March 30, 1993, he signed an agreement giving temporary legal custody of his children to Robert and Susan Hereth, in the event that appellant were sent to prison. The arrangement is to terminate upon appellant’s request for the return of his children upon his release from prison. The Hereths subsequently filed in the circuit court a “Complaint for Temporary Custody and Other Relief,” in which Calhoun joined, seeking an order awarding them temporary legal custody of Laura and Kevin “from June 24, 1993 to so long as the said minors should reside with them.” On April 6, 1993, the court signed such an order. In addition, Calhoun joined the Hereths in opposing a later petition filed by the Santiagos, seeking appointment as guardians of the children. On September 24, 1993, the court signed another order naming the Hereths as guardians of the person for Laura and Kevin and naming appellee as guardian of their property. With respect to the custody issue, appellant offered in evidence various pleadings and other documents, some of which referred to the fact that appellant had pleaded guilty to voluntary manslaughter in connection with the death of his wife.
The parties stipulated at trial that appellant wants to be reunited with his children upon his release from custody. Appellant conceded, however, that he has not paid any formal child support to appellee, although he has continued to pay the taxes, mortgage payments, and insurance on the home that he had owned with his wife.
At the close of appellee’s evidence, Calhoun made a motion for judgment on the basis of parent-child immunity. The trial court denied the motion, stating that “the Court is of the opinion that the parent/child immunity does not apply in this case.” At the close of all the evidence, appellant made another motion for judgment on the same ground. In response, appellee contended that the case fits within the exception announced in Mahnke v. Moore. The court agreed with appellee and again denied the motion. 3
The case was then submitted to the jury. The verdict sheet contained three questions. First, the jury was asked: “With respect to Plaintiffs’ claims that the Defendant, John C.
Appellant’s counsel objected to the second question, claiming it was “only necessary for punitive damages.” The court overruled the objection, stating, “My interpretation is, it should be in there according to the statute in [Mahnke ].” Thereafter, the jury found in favor of appellee with respect to the first question. As to the second question, the jury foreman stated that the jury “could not come to a verdict.” It then awarded the children a total of $2,360,000 in damages. 4
Appellee’s counsel requested resubmission of the second question, in the form of five separate questions. He argued that the jury “obviously can’t agree on all of them” and “[pjerhaps they can agree one way or the other on each one of those five items.” Calhoun’s counsel objected, saying:
Your Honor, I object to that recommendation. As I understand the wrongful death act, ah ... as far as proof. When you look at the statute, and I’ll have to pull that a little bit ... the statute says the criteria for proof is, number one, determine if there is a wrongful act. And the statute defines a wrongful act. The statute defines a wrongful act not in terms of what the definition of ... item two does. That’s why I objected to it to begin with.
}{{ }j« ÍJÍ sjs ifc ifc
[Ojnce you find the wrongful act, ... as I understand the cases, you go into the damages. The jury has ... found the wrongful act, and that’s all they [are] required to do. In my opinion, and I think I have some law to back that up, I have to dig it up, because I was going over last night____ [Ojnce they’ve found a wrongful act, that ends that part of the burden of proof ah ... of their ... of their obligation as a jury, ... to do anymore. And then they go into the damages. I ... I think the jury has done its job. I ... they don’t have to do anymore.
The trial judge agreed with appellant and declined to resubmit the second question. The following exchange occurred:
THE COURT: That’s my understanding too, Mr. Peklo [appellee’s counsel], that once they decide number one, they don’t necessarily have to go into number two to come up with number three. Because the way the statute reads, wrongful act, and they have determined it was a wrongful act. So, okay.
[APPELLEE’S COUNSEL]: I understand your position, Your Honor. We respectfully disagree.
THE COURT: You respectfully disagree. But, I don’t ... why do they have to go to number two.
[APPELLEE’S COUNSEL]: Well, that’s just our position, Your Honor, I mean.
THE COURT: No, I say what’s your reasoning behind going to number two. Once they make a decision that there was a wrongful act, you’re saying they can’t go into damages until they decide one or the other.
[APPELLEE’S COUNSEL]: Oh no. They can, they can. It was suggested that, that be put into help for any ah ... well, I’ll withdraw that.
THE COURT: Okay. Mr. Bailiff you can let them go. They’re free to go.
Thereafter, the court entered final judgment in favor of appellee.
I.
We begin with a review of the doctrine of parent-child immunity. In English common law, there was no rule preventing suits between parents and their children.
See
W. Page Keeton et al., Prosser and Keeton on the Law of Torts 904 (5th ed.1984). The doctrine of parent-child immunity first appeared in an 1891 decision by the Mississippi Supreme Court,
Hewellette v. George,
[S]o long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.
Although the court cited no authority to support its broad pronouncement, its holding rapidly spread to many other jurisdictions.
See, e.g., McKelvey v. McKelvey,
In 1930, the Court of Appeals joined these jurisdictions in its decision in
Schneider v. Schneider, supra,
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.
❖ * * * # *
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 revealedreligion alike demand the preservation of this relation in its full strength and purity.” Schouler, Domestic Relations, sec. 223.
Id.,
In
Yost v. Yost,
As the decades have passed the doctrine of parent-child immunity has become increasingly unpopular. Beginning in the early 1960’s, courts steadily began to repudiate it.
See, e.g., Rousey v. Rousey,
Some courts have questioned the doctrine’s common law roots.
See, e.g., Rupert v. Stienne,
Some of the strongest criticism of the rule appears in cases involving motor torts, in which the loss will almost always be paid by an insurance company, rather than the defendant-family member. These critics assert that, at least in cases covered by insurance, the risk of family friction is substantially reduced by the fact that the wrongdoer will not have to pay the judgment out of his or her own pocket.
See Montz v. Mendaloff,
Nevertheless, there are considerations that support the retention of parent-child immunity. These considerations have led both this Court and the Court of Appeals to decline to join the great wave of opposition to the doctrine. Indeed, in
Warren v. Warren,
the Court observed that Maryland is
one of only eight states that retains the doctrine in its broadest form.
Id.,
There are also public policy considerations to which we alluded earlier. Parent-child immunity rests on the need to preserve parental authority and to prevent the corrosive effects of litigation on family harmony. In
Frye v. Frye,
A common theme appears in the rationale advanced by the courts which championed the parent-child immunity. The rule 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.
The Court later stated:
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 he 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 declared it to be the public policy that discipline in the family not be impaired and that tranquility of the home be preserved. Matters which tend to disrupt or destroy the peace and harmony of the home are not to be condoned.
Id.,
Accordingly, the Court concluded that the doctrine is “essential to the maintenance of discipline and to the stability of family harmony.”
Id.,
In 1994, in
Warren v. Warren, supra,
[W]e believe that it is still in the best interest of both children and parents toretain parent-child immunity. Abrogating the immunity would result only in further discord within the family and would interfere with the exercise of parental discretion in raising and disciplining children. We are not willing to open the door to rebellious children and frustrated parents and allow the courts to become the arbitrator of parent-child disputes and overseer of parental decisions.
This array of cases makes clear that the doctrine of parent-child immunity remains deeply embedded in the law of Maryland; it is up to the General Assembly to decide whether it is time to change the law. With this background in mind, we turn to the issues presented.
II.
Appellee contends that parent-child immunity does not apply here, because the children’s wrongful death action against their father “derives from” the cause of action that their mother would have had against appellant had she survived. The parties have not cited, nor have we discovered, any reported Maryland decision that has decided the precise issue of whether, since the abrogation of interspousal immunity, a minor child may maintain a wrongful death action against one parent for the death of the other parent, if the decedent would have had a viable claim against the surviving spouse, had the decedent lived.
Appellee relies on the language of the Wrongful Death Act, Maryland Code (1974, 1995 RepLVol.), §§ 3-901 et seq. of the Courts and Judicial Proceedings Article (“C.J.”). C.J. § 3-902(a) provides: “An action may be maintained against a person whose wrongful act causes the death of another.” C.J. § 3-901(e), in turn, defines “wrongful act” as “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.” (Emphasis supplied.) C.J. § 3-904(a) provides: “An action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person.”
Appellee asserts that, because Ms. Calhoun, had she survived, would have been able to maintain her own action against appellant, due to the abrogation of interspousal immunity,
see Boblitz v. Boblitz,
It is true that a wrongful death action is, in some sense, a “derivative” action. This is because the survivors
may not maintain a wrongful death action if the decedent would not have been able to recover against the tortfeasor had the decedent lived.
See Smith v. Gross,
Nevertheless, it is also well settled that a wrongful death action is not purely a “derivative” action; the survivors are not suing as a representative of the decedent. Instead, a wrongful death action is primarily a
personal
claim asserted by the survivors for their
own
loss resulting from the decedent’s death. This principle was enunciated in
Globe American Casualty Co. v. Chung,
When a victim dies because of the tortious conduct of someone else, two entirely different types of claim may arise. One is a survival action commenced or continued by the personal representative of the deceased victim, seeking recovery for the injuries suffered by the victim and prosecuted just as if the victim were still alive. It is called a “survival action” in the sense that the claim has survived the death of the claimant. The other is a wrongfuldeath action, brought by the relatives of the victim and seeking recovery for their loss by virtue of the victim’s death. A deceptive similarity inevitably results from the prominent common denominator fact that the victim has died. In other essential characteristics, however, the two types of claim are clearly distinct. The first arises from the tortious infliction of injury upon the victim; the second, only from the actual death of the victim. In the first, damages are measured in terms of harm to the victim; in the second, damages are measured in terms of harm to others from the loss of the victim. In the first, the personal representative serves as the posthumous agent of the victim; in the second, his surviving relatives do not serve as his agent at all. They act in their own behalf.
Id,
Thus, even though a plaintiff in a wrongful death action depends, in part, on the rights that the decedent would have had, the wrongful death action is a personal suit against the defendant to recover for the claimant’s own injuries. The defendant may therefore raise certain defenses against the plaintiff regardless of whether the defendant could have raised the defenses against the decedent. For example, a plaintiff in a wrongful death action may not recover if he or she was contributorily negligent.
See Baltimore & Ohio Railroad v. State, Use of Fryer,
Cases from other jurisdictions, decided at a time when those jurisdictions recognized parent-child immunity in the way that Maryland does, have reached the same result. In
Heyman v. Gordon,
Stripping the situation of formalities, which should not be allowed to disguise it, the real and only party in interest is the son. He seeks to collect money from his father on the ground that the latter negligently caused the death of his mother. We see no essential difference between this state of fact and that where an unemancipated child sues his parent for his own injuries, negligently caused.
Similarly, in
Durham v. Durham,
This State is committed to a policy that actions may not be maintained by an unemancipated minor against a parent for a tort. We are not persuaded that the policy reasons involved apply with less force to a case arising under the wrongful death statute insofar as the question is here presented.
The wrongful death statute should be construed and administered consistent with all the rules of common law not expressly abrogated. [Citation] We fail to find in the wrongful death statute any expression indicating a legislative intent to abrogate the rule that a minor may not sue a parent in tort.
Reaching the same result is
Strong v. Strong,
Maryland, like Mississippi and Nevada, follows the doctrine that statutes in derogation of the common law are strictly construed.
See Department of Public Safety and Correctional Services v. ARA Health Services,
In our view, however, the fact that parent-child immunity did not exist when the original statute was enacted in 1852 is of no moment. The statute is not fixed in concrete within the legal principles prevalent in 1852. Rather, the General Assembly established a cause of action and allowed its governing legal principles to evolve with the times.
Cf. Smith v. Wade,
Moreover, since 1852, the Wrongful Death Act has gone through multiple recodifications and revisions. While recodification of statutes is generally for the purpose of clarity,
see Rohrbaugh v. Estate of Stern,
In any event, we need not base our decision on the principle that statutes in derogation of the common law are strictly construed. Rather, we conclude that the policies supporting parent-child immunity apply to wrongful death actions. Those policies include “preservation of family harmony[,] preservation of parental discipline and control, prevention of fraud and collusion, and the threat that litigation will deplete family resources.”
Warren v. Warren,
III.
A.
As we have noted, appellant claims that suit is barred by parent-child immunity. There is, however, a limitation on parent-child immunity that the Court of Appeals recognized in 1951 in
Mahnke v. Moore, supra,
The Court held that the child had a right of action in tort for personal injuries resulting from the father’s actions. After reviewing
It is conceded, of course, that parental authority should be maintained. It is also conceded that a child should forego any recovery 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.
(Emphasis supplied.) Nevertheless, the Court concluded that the immunity did not bar the daughter’s suit, because the policy underpinnings of the doctrine were not applicable:
In the case at bar the illegitimate daughter alleges in her declaration that her father murdered her mother and then committed suicide one week later. In these circumstances there 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 tranquility are to be preserved.
Id.,
[Wjhen, 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 cruel and inhuman treatment or for malicious and wanton wrongs.
Id.,
Our decisions have since guarded against interpreting
Mahnke
too broadly. In
Shell Oil Co. v. Ryckman,
it is conceivable that a set of circumstances could exist wherein one could say that the acts of the parent were grossly negligent and which show a complete abandonment of the parental relation, or by which it might be said that the parent had forfeited his parental authority and privileges, and thus his immunity from suit, so as to bring the case within the narrow confines of Mahnke v. Moore.
Appellant contends that, as a matter of law, his conduct was not within the
Mahnke
exception. He focuses on the
Mahnke
Court’s statement that the conduct of the father there “show[ed] complete abandonment of the parental relation,” as well as its cautionary note that “a child should forego any recovery of damages if such recovery would unduly impair discipline and destroy the harmony of the family.”
Mahnke,
We agree that
Mahnke
created only a narrow exception to parent-child immunity. Appellant’s reading of the case
is too restrictive, however. The authorities establish that it is the
character of the parent’s act
that is central to the determination of Mahnke’s applicability, and not just the parent’s feelings or intentions with respect to the child. The message of
Mahnke
is clear: “Justice demands that a minor child shall have a right of action against a parent for injuries resulting from
cruel and inhuman treatment
or for
malicious and wanton wrongs.” Id.,
In our view, the
Mahnke
Court’s reference to “complete abandonment of the parental relation” refers to conduct that, by its nature, constitutes an abandonment of the parental relation, without regard to the parent’s intentions toward the child.
See Shell Oil Co. v. Ryckman, supra,
Courts in other jurisdictions have adopted the same view. For example, in
Dunlap v. Dunlap,
On its face, the rule is a harsh one. It denies protection to the weak upon the ground that in this relation the administration of justice has been committed to the strong and that authority must be maintained. It should not be tolerated at all except for very strong reasons; and it should never be extended beyond the bounds compelled by those reasons.
Id.,
But there is such a thing as abandonment of the parental relations. This may be shown to have come about by express agreement, or may be implied from acts. [Citations] It should be implied in the case of malicious injuries. Such acts are in no way referable to the parental status, and they indicate its abandonment more clearly than words.[ 12 ]
Also instructive is
Doe v. Holt,
The court appeared to focus on the parent’s tortious act, and not on the parent’s other conduct or intentions. Indeed, the court stated that willful and malicious torts were actionable because they carried their own indicia of parental abandonment and destruction of the family relation: “Where a parent has injured his or her child through a willful and malicious act, any concept of family harmony has been destroyed. Thus, the foremost public purpose supporting the parent-child immunity doctrine is absent, and there is no reason to extend the doctrine’s protection to such acts.”
Id.,
Similarly, in Henderson v. Henderson, 14 Fla.Supp. 181 (1958), a Florida court allowed a wrongful death action by a four-year-old boy against his father, alleging that the father had “willfully, wantonly and intentionally shot and killed his mother.” The court stated:
It is generally a wholesome rule to grant the parent immunity from unintentional or negligent personal torts which occur within the scope of domestic relations. The security, peace and tranquility of the home, being the very foundation upon which our society rests, must be protected. But where one parent deliberately and willfully shoots and kills the other parent as alleged in this complaint[] thereby not only breaking up the family unit but also depriving the child of the support, care, guidance, comfort and companionship of the other parent, he forfeits all claim to immunity. ... It would be a distinct disservice not only to the family, but also to the state, to place the court’s stamp of approval upon the individual who betrayed his trust by maliciously causing injury to his child or ward.
Id., 14 Fla.Supp. at 185 (emphasis supplied). 14
These cases confirm our view that the issue here is not whether appellant abandoned his children, or even whether he intends to attempt to re-create the family relation. Rather, the question here is whether appellant injured his children by a tortious act that constituted cruel or inhuman treatment or a wanton and malicious wrong. Our conclusion also coincides with the reasoning of the Alabama Supreme Court in
Hurst v. Capitell,
B.
We must next address appellant’s claim that the trial court erred in denying his motions for judgment. The standard of our review is well settled. Our task is to determine
In this case, the Calhoun children asserted that appellant deliberately killed their mother; they offered substantial evidence in support of their claim, which we need not repeat here. Nevertheless, appellant steadfastly claimed that the death was accidental and that he did not intend to kill his wife. Calhoun also categorically denied striking his wife in the head with a two-by-four. He testified, in part:
So she started to climb up the ladder and I was going to hand the bucket up to her. And we were talking as she was going up the ladder and I made a comment. Not a sarcastic one. It was one in kind of fun, I guess, funny. And in response she said something about Lancaster which is where we went to kind of get away for a weekend. And I was mad at myself because of what had happened earlier. I done something behind my wife’s back that I wasn’t proud of and took her to Lancaster on a shopping trip to kind of make up and she knew more than I thought she did about the situation. And I was disappointed in myself and the kick to the ladder wasn’t for her, it was for me and I, to this day I don’t—I never expected to have happen what happened, and that’s the God’s honest truth.
(Emphasis supplied.)
Of course, longstanding rules
of
appellate procedure provide that the determination of the credibility of witnesses is an issue for the factfinder.
See Peroti v. Williams,
IV.
We turn next to the jury’s inability to reach a verdict on Question 2 of the verdict sheet, which asked it to determine whether “the wrongful act or acts of the Defendant, John C. Calhoun[,] were atrocious, show a complete abandonment of the parental relation, were intentional, were willful and were malicious.” The instruction was apparently intended to track the Mahnke exception to parent-child immunity.
In overruling appellant’s objection to Question 2, the judge stated, “My interpretation is, it should be in there according to the statute in [Mahnke ].” Nevertheless, the judge found the jury’s inability to reach a verdict on the question to be of no consequence, and denied appellee’s request to resubmit the question to the jury in five different parts. The court stated that the jury only needed to determine whether there was a “wrongful act.”
It is apparent, then, that the jury’s inability to reach a verdict on Question 2 was of critical importance with respect to the applicability of the parent-child immunity doctrine. Rule 2-522 provides, in relevant part: “The verdict of a jury shall be unanimous unless the parties stipulate at any time that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.” Calhoun argues that this inability means that the Mahnke exception does not apply. We disagree. A jury’s deadlock on a particular question is not the same as a finding in favor of one party or another.
Appellee suggests that we may evaluate the facts on our own and determine whether Mahnke applied. He also argues that “[t]he fact that the jury failed to reach a verdict on Question No. 2 substantiates nothing more than the fact that six individuals were unable or unwilling to find each and every element as listed in Question No. 2 to be present in the facts in this case.” We disagree with both contentions. In light of the conflicting evidence, the issue was one of fact for the jury to resolve. Because the jury was unable to reach a verdict on Question 2, a mistrial should have been declared. Moreover, appellee apparently implies that not all parts of the question were necessarily needed in order to constitute a finding that appellant had committed “cruel and inhuman treatment” or a “malicious and wanton” wrong within the meaning of Mahnke. We cannot revise here the question that actually was presented to the jury. Nor can we speculate as to what the jury would have found if, as appellee initially requested, Question No. 2 were re-submitted to the jury as five separate questions. What we do know is that no finding was made as to whether appellant’s conduct was atrocious, wanton or inhuman.
In view of the foregoing, the judgment must be reversed, and the case remanded for a new trial.
CONCLUSION
We hold that the doctrine of parent-child immunity applies in a wrongful death action in which a child sues a parent for the death of the other parent. Nevertheless, in this case, the evidence was sufficient to generate a jury question as to whether appellant’s conduct constituted a wanton and malicious
JUDGMENT REVERSED. CASE REMANDED FOR A NEW TRIAL.
COSTS TO BE EQUALLY DIVIDED BETWEEN APPELLANT AND APPELLEE.
Notes
. In large measure, we shall summarize the facts in the light most favorable to appellee, the prevailing party.
. The following colloquy occurred at trial:
[APPELLEE’S COUNSEL]: Now why did you go to the police station?
MS. CALHOUN: Because I knew that something was wrong. I knew that—I had a gut feeling that everything was not right and that it wasn’t an accident.
[APPELLEE’S COUNSEL]: What did you base that feeling on at that particular time?
MS. CALHOUN: There's nothing in particular. I guess its [sic] just a lifetime of knowing your father. I knew that he didn’t have a particular loving relationship with her. I knew that he had spoken about a divorce. He had talked about a divorce with me. And I also knew that he was not going to get a divorce because she, as a result of him having an affair, she would have been entitled to most everything and he would not have allowed that to happen.
. Nevertheless, the court declined to submit appellee's punitive damages claim to the jury. Relying on our decision in
Cohen v. Rubin,
. This sum consisted of $70,000 to Laura and $90,000 to Kevin for “pecuniary/economic damages” until their eighteenth birthdays; $1,000,000 to each child for “mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, parental care, attention, advice, counsel, training or guidance”; and $100,000 to each child for costs of education that they could reasonably expect would have been paid by their mother.
. Interestingly, in almost all of the authorities, the appellant’s name in the Mississippi case is spelled "Hewlett.” In the Southern Reporter, however, her name is spelled "Hewellette.” Hereinafter, for ease of reference, we shall use “Hewlett.”
. Section 895G states:
(1) A parent of child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.
. Survival actions are governed by C.J. § 6-401 and § 7-401(x) of the Estates and Trusts Article (1974, 1991 Repl.Vol., 1995 Supp.) (“E.T.”). C.J. § 6-401(a) provides: "Except as provided in subsection (b) of this section [governing actions for slander], a cause of action at law, whether real, personal, or mixed, survives the death of either party.” E.T. § 7-40 l(x) provides that, with certain exceptions, the personal representative of a decedent’s estate "may prosecute ... actions, claims, or proceedings in any appropriate jurisdiction for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted.” No survival action is involved in this case.
. Today, neither
Durham, Strong,
nor
Heyman
would be applicable in the jurisdictions that decided them. The Mississippi Supreme Court, as we have observed, abolished parent-child immunity for motor torts in
Glaskox v. Glaskox,
. The act originally authorized actions for the benefit of the wife, husband, parent, and child of the decedent, but the action would be brought in the name of the State for the use of those persons.
See
former Code, Art. 67, § 4;
Stewart v. United Electric Light & Power Co.,
. There are decisions from other jurisdictions that reach a different conclusion from ours.
See Cummings v. Locklear,
. The Court has recognized three other limitations on the doctrine. First, the immunity does not apply to suits between a parent and an emancipated, adult child.
Waltzinger v. Birsner,
. In 1966, the New Hampshire Supreme Court carved out an exception to parent-child immunity for motor torts.
See Briere v. Briere,
. Like this Court and the Court of Appeals, the North Carolina Supreme Court has declined to abrogate parent-child immunity by judicial decision.
See Lee v. Mowett Sales Co.,
. In 1982, the Florida Supreme Court abrogated parent-child immunity in cases involving motor torts, but only to the extent of the defendant's insurance.
Ard v. Ard,
. " 'Gross negligence is a technical term; it is the omission of that care which even inattentive and thoughtless men never fail to take of their own property, it is a violation of good faith.... It implies malice and evil intention.’ ”
Foor
v.
Juvenile Services Administration,
an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.
Romanesk v. Rose,