Lead Opinion
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,
In Schneider v. Schneider,
“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,
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,
“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.”
“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,
“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. This argument has been rejected by the Court of Appeals of Maryland in cases involving suits by a wife against her husband’s employer based upon the husband’s negligence. In Riegger v. Bruton Brewing Company,
“* * * [I]t would seem illogical to hold that the husband’s employer is liable to appellant under the circumstances shown by the declaration, for no right of action is permitted by the wife against her husband, and the wife’s right of action against appellee must arise solely because of the negligence of its agent (in this case her husband) acting within the scope of his employment. To hold that the employer is liable because of the acts of its agent against whom no liability exists in favor of the person injured would result in holding appellee liable notwithstanding her inability to have legal redress against the person causing her injuries. Such a holding would, in our opinion, be entirely inconsistent with the rule in Maryland to the extent that it has been declared by our previous decisions, and the result would be to permit the wife to do indirectly what admittedly she may not do directly.”
This holding in Riegger was quoted with approval in Stokes v. Association of Independant Taxi Operators, Inc.,
We conclude that the Court of Appeals of Maryland would follow the same line of reasoning as in Riegger and hold that a minor child cannot recover from his father’s employer in an action based upon the father’s negligence while acting within the scope of his employment. A contrary holding would permit a plaintiff (here the minor child) to accomplish indirectly that which he may not do directly, a result rejected in Riegger and Stokes.
It is argued by plaintiffs that the general trend is toward liberalization and that a growing number of courts now permit a suit by a child directly against the father for a tort of the father committed against the child. Consequently, the argument goes, there is no logical reason to deny a child the right to sue the father’s employer for injuries in
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.
Affirmed.
Dissenting Opinion
(dissenting) :
Dicta and the analogy to husband and wife do not persuade me that Maryland would deny this youth recovery against his father’s employer. Riegger v. Bruton Brewing Co.,
The second point of distinction between Riegger and the case before us is perhaps of less theoretical significance, but it has a practical aspect which should not be overlooked. Here, if the child were allowed to recover, the employer would have no meaningful cause of action against the father, for the same policy of liability insurance that protected the employer also protected its employee, the father. Therefore, this suit would not disrupt the peace and tranquillity of the family by permitting an indirect action against the father.
True, Maryland will not permit a child to maintain a suit in equity, apart from statute, for support and maintenance. Yost v. Yost,
Here, the tort for which the child sues was not “atrocious” as in Mahnke, but neither was it simply “nonfeasance” or “passive negligence incident to the parental relation” as in Yost. The father’s negligent operation of his employer’s truck lies between these extremes, but it does not directly involve the duties of discipline and care which undergird the doctrine of parental immunity. Under similar circumstances the child would be allowed recovery in most of the states whose courts have considered the problem, see Annot.,
Compensation of innocent victims of negligent motorists is so essential to the state and its citizens that the Maryland legislature has enacted financial responsibility laws and established an unsatisfied claim and judgment fund. Md. Ann.Code art. 66y2 §§ 116-179 (1967). The public policy, which this legislation illustrates, coupled with precedent of the