Montz v. Mendaloff

*226

Gilbert, C. J.,

concurring:

Deborah Mason Montz, the appellant, has arrived in this Court yelling, “Tauro! Tauro! Tauro!” 1 She, of course, does not refer to the December 7, 1941, attack on Pearl Harbor, but rather to the opinion of Chief Justice Tauro of the Massachusetts Supreme Judicial Court in Sorensen v. Sorensen, 369 Mass. 350 , 339 N.E.2d 907 (1975). In that case, Chief Justice Tauro stated that children have the same “right to protection and to legal redress for wrongs done them as others enjoy.” 339 N.E.2d at 912 .

What some see as a doctrine of law that serves the best interest of family unity, but which I perceive to be an antiquated idea that not only fails to accomplish that end, but may well have the opposite effect, was conceived in the minds of the Supreme Court of Mississippi and given birth in Hewlett v. Ragsdale, 68 Miss. 703 , 9 So. 885 (1891). 2 Hewlett involved a female minor who brought suit against her mother for “wilfully, illegally, and maliciously” having the child confined in an insane asylum in order for the mother to secure the property of the child. The Mississippi court, without citing any authority for its position, baldly declared that “[t]he 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 wrongdoing, and this is all the child can be heard to demand.” 68 Miss, at 711, 9 So. at 887. 3 Other American appellate courts, including Maryland, followed Hewlett. See Schneider v. Schneider, 160 Md. 18, 22 , 152 A. 498, 499 (1930), where *227 Chief Judge Bond said that “Tilt 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. . , .” The Court, as Judge Couch notes in the instant case, applied Schneider and the dubious holding of Hewlett, as well as its off-spring 4 in Waltzinger v. Birsner, 212 Md. 107, 125-26 , 128 A. 2d 617, 626-27 (1957); Mahnke v. Moore, 197 Md. 61, 68 , 77 A. 2d 923, 926 (1951); Yost v. Yost, 172 Md. 128, 134 , 190 A. 758 , 756 (1937). We, in three (8) previous decisions, Sanford v. Sanford, 15 Md. App. 390 , 290 A. 2d 812 (1972); Arch v. Arch, 11 Md. App: 395, 274 A. 2d 646 (1971); Latz v. Latz a/k/a Schafer, 10 Md. App. 720 , 272 A. 2d 435 (1971), cert. denied, 261 Md. 726 (1971), have followed the lead of the Court of Appeals.

I agree that we, in the case sub j’udice, based on stare decisis, must reach the conclusion that under existing Maryland law a minor may not maintain an action, in tort, for wrongs done to the minor by his or her parent or parents. Were we deciding a virginal issue, however, I would subscribe to the Sorensen reasoning rather than Hewlett.

Many jurisdictions have departed 'in whole or in part from the seemingly unfair parental immunity doctrine, and each of them would entertain an action similar to that instituted in the case now before us. See Sorensen v. Sorensen, 339 N.E.2d at 911 , footnote 5, infra, citing cases from Alaska, Arizona, California, Hawaii, Kentucky, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Virginia, and Wisconsin. Moreover, there appears to be no barrier in the common law of England that would prevent a minor from asserting an action against his or her parents for a wrong done to the child by the parents. Mahnke v. Moore, 197 Md. at 64 , 77 A. 2d at 924 ; Hastings v. Hastings, 33 N. J. 247, 255, 163 A. 2d 147, 152 (1960); Sorensen v. Sorensen, 389 N.E.2d at 909.

I think the time has come for the Court of Appeals to re-examine the parental immunity doctrine espoused in *228 Schneider, Yost, and Mahnke in the light of the present compulsory automobile insurance law of this State. Perhaps, the Court will now hear the beat of a different drummer than that heard by its predecessors and march with those who have denounced Hewlett, 5 at least to the extent of permitting an unemancipáted minor to recover in motor tort cases to the limits of his or her parents’ automobile liability insurance for injuries occasioned to the minor as a result of the negligence of the parent. By so doing, the Court would lift unemancipated minors from their current status of second class citizens, a position in which they have been thrust by the parental immunity doctrine, and recognize that unemancipated minors have the same rights as everyone else. The majority, in the case subjudice, opine that it is up “to the Maryland legislature to make this change [in the law] if it perceives it to be in the best interest of the people of this State.” I fail to see why that is necessarily true. The doctrine of parental immunity, as we have seen, was sired in the minds of the Supreme Court of Mississippi, who, serving as mid-wife, delivered it in Hewlett, Maryland adopted the doctrine, notwithstanding its questionable parentage, insofar as precedent is concerned. The promulgation of parental immunity from actions by unemancipated minors and its subsequent nutriment have been solely judicial functions. To me there is no valid reason why the branch of government that gave birth to the doctrine cannot lay it to rest when, as here, there exists compulsory automobile liability insurance. I believe it to be inconceivable that the average parent entering into a contract with a motor vehicle liability insurance carrier knows that he is excluding from the *229 protection of the policy his minor children, the ones he ordinarily is most desirous of protecting.

One further comment need be made. Judge Orth, for this Court, in Latz , commented:

“We feel that the rule of Schneider is firmly enough embedded in the law of Maryland as to make inadvisable its abolition by judicial decision and we decline to change it for other than constitutional reasons.” (Footnote omitted.) (Emphasis supplied.) 10 Md. App. at 730 , 272 A. 2d at 440-41 .

This Court, in Latz , rejected an “equal protection” argument on the basis that all unemancipated minor children are immune to tort actions brought against the minor by his or her parents. Latz was decided before automobile insurance became compulsory in this State. Perhaps in view of the present state of the law, the equal protection argument should be revisited. We are, however, precluded from doing so in the case at bar because that issue was not raised in the trial court, Md. Rule 1085, nor was it or could it then be raised for the first time in this Court. Consequently, any revisitation of Lat¿s equal protection holding will have to await its arrival in this Court properly attired for review.

I concur with the result reached in this case, but I do so with reluctance, for the reasons stated herein.

. With apologies to Gordon W. Prange, author of “Tora! Tora! Tora!"— Japanese for “Attack! Attack! Attack!”

. Hewlett was decided before both automobiles and automobile insurance.

. Obviously the Mississippi court of 1891 was unaware of the increasing number of child abuse cases appearing in the courts, hospital emergency rooms and doctors’ offices. Some writers on the subject believe that the reported cases are but the visible part of the iceberg, nine tenths of it being unseen.

. See Dunlap v. Dunlap, 84 N.H. 352 , 150 A. 905 (1980); Mesite v, Kirehanstein, 109 Conn. 77 ,145 A, 758 (1929); Roller v. Roller, 37 Wash. 242 , 79 P. 788 (1905); MeKelvey v. McKelvey, 111 Tenn, 388, 77 S. W. 664 (1908).

. See Sorensen v. Sorensen, supra; Rupert v. Stienne, 90 Nev. 397 , 528 P. 2d 1013 (1974); Plumley v. Klein, 388 Mich. 1 , 199 N.W.2d 169 (1972); Gibson v. Gibson, 3 Cal. 3d 914 , 479 P. 2d 648 , 92 Cal. Rptr. 288 (1971); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1971); Falco v. Pados, 444 Pa. 372 , 282 A. 2d 351 (1971); Smith v. Kauffman, 212 Va. 181 , 183 S.E.2d 190 (1971); France v. A.P.A. Transport Corp., 56 N. J. 500, 267 A. 2d 490 (1970); Streenz v. Streenz, 106 Ariz. 86 , 471 P. 2d 282 (1970); Petersen v. City & County of Honolulu, 51 Hawaii 484 , 462 P. 2d 1007 (1969); Gelbman v. Gelbman, 23 N.Y.2d 434 , 245 N.E.2d 192 , 297 N.Y.S.2d 529 (1969); Silesky v. Kelman, 281 Minn. 431 , 161 N.W.2d 631 (1968); Hebel v. Hebel, 435 P. 2d 8 (Alas. 1967); Nuelle v. Wells, 154 N.W.2d 364 (N.D. 1967); Briere v. Briere, 107 N. H. 432, 224 A. 2d 588 (1966); Goller v. White, 20 Wis. 2d 402 , 122 N.W.2d 193 (1963).