In Taylor v. Taylor, 360 Mo. 994, 232 S.W.2d 382, 383-85 (Mo. 1950), the Missouri Supreme Court allowed a parent to file a suit against her son to receive damages for the death of her husband in a car accident allegedly caused by her son's negligence.Summary of this case from Owens v. Owens
July 10, 1950. Motion for Rehearing or to Transfer to Banc Overruled, September 11, 1950.
Plaintiff sued her adult son for the wrongful death of her husband, defendant's father, a guest in an automobile owned by the son which crashed into a bridge abutment when defective headlights went out. The action will lie and there was a submissible case. The deceased was not guilty of contributory negligence as a matter of law. Plaintiff's instruction was not erroneous.
1. NEGLIGENCE: Motor Vehicles: Defective Headlights: Submissible Case. Evidence that defendant furnished his father with an automobile which had defective headlights, resulting in a fatal crash when the headlights went out, made a submissible case for the jury.
2. PARENT AND CHILD: Negligence: Actions: Wrongful Death of Husband: Action by Mother Against Adult Son. An action will lie by a mother against her adult son for the wrongful death of her husband, the father of defendant.
3. NEGLIGENCE: Motor Vehicles: Defective Headlights: Guest Not Negligent as a Matter of Law. The deceased automobile guest was not negligent as a matter of law because the defective headlights grew dim a number of times before they went completely out.
4. NEGLIGENCE: Motor Vehicles: Defective Headlights: Instruction Not Erroneous. The facts outlined in plaintiff's instruction would, if true, constitute negligence. And the jury was required to find that such negligence was the proximate cause of the death of plaintiff's husband. The instruction was not erroneous.
Appeal from Jackson Circuit Court; Hon. Thomas R. Hunt, Judge.
James R. Sullivan, Arthur R. Wolfe and Walter A. Raymond for appellant.
(1) The trial court erred in refusing to sustain defendant's motion for a directed verdict as requested by the defendant at the close of all the evidence. There was no substantial evidence to sustain the charge of negligence alleged in plaintiff's petition and submitted in her only instruction directing a verdict. Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570; Borrini v. Pevely Dairy Co., 183 S.W.2d 839; Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W.2d 123; Humphries v. Shipp, 238 Mo. App. 985, 194 S.W.2d 693; Pruzan v. Natl. Surety Corp., 223 S.W.2d 8; Snyder v. American Car Foundry Co., 322 Mo. 147, 14 S.W.2d 603; Feeherty v. Sullivan, 129 S.W.2d 926; Holmes v. Egy, 202 S.W.2d 87. (2) It is contrary to the public policy in Missouri to permit a tort action to be maintained by a parent against a child where they are living together as a family. Shaker v. Shaker, 129 Conn. 518, 29 A.2d 765; Silverstein v. Kastner, 20 A.2d 205. Lasecki v. Kabara, 294 N.W. 33, 130 A.L.R. 883; Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133; Graham v. Miller, 182 Tenn. 434, 187 S.W.2d 622, 162 A.L.R. 571; Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084; Mullally v. Langenberg Grain Co., 339 Mo. 582, 98 S.W.2d 645; Planck v. Planck, 199 S.W. 1183; Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382; Wells v. Wells, 48 S.W.2d 109; Cook v. Cook, 232 Mo. App. 994, 124 S.W.2d 675; Cook v. Mason, 353 Mo. 993, 185 S.W.2d 793; Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113; Villaret v. Villaret, 169 F.2d 627; Kitchen v. Duffield, 149 Ohio St. 500, 79 N.E.2d 906; York v. York, 212 N.C. 695, 194 S.E. 486; Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162; Woolf v. Holton, 224 S.W.2d 861; McClellan v. Oliver, 181 S.W.2d 784; Stedem v. Jewish Mem. Hosp. Assn., 239 Mo. App. 38, 187 S.W.2d 469; Wormington v. City of Monett, 204 S.W.2d 264; Williams v. Van Deusen, 203 Mo. App. 162, 219 S.W. 395. (3) Plaintiff's decedent was guilty of contributory negligence as a matter of law in permitting himself to be driven along the highway with lights that would reveal objects only 25 to 40 feet ahead. Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Heyde v. Patten, 39 S.W.2d 813; Setzer v. Ulrich, 90 S.W.2d 154; Sec. 3653, R.S. 1939; Fitzpatrick v. Kansas City So. Ry. Co., 347 Mo. 57, 146 S.W.2d 560; Floyd v. Thompson, 356 Mo. 250, 201 S.W.2d 390; Renfro v. Keen, 19 Tenn. App. 345, 89 S.W.2d 170; Rebillard v. Minneapolis, St. P. S.M. Ry. Co., 216 F. 503; Ellenberger v. Kramer, 322 Pa. 589, 186 A. 809; Talbot v. Taylor, 184 Tenn. 428, 201 S.W.2d 1; Hudgins v. Standard Oil Co., 5 Cal.App.2d 618, 43 P.2d 597; 4 Blashfield's Automobile Law, sec. 2451; Allen v. Porter, 19 Wn.2d 503, 143 P.2d 328; Gallagher v. Davis, 7 S.W. Harr. 380, 183 A. 620; Clise v. Prunty, 108 W. Va. 653, 152 S.E. 201; York v. York, 212 N.C. 695, 194 S.E. 486. (4) The court committed prejudicial and reversible error in giving plaintiff's Instruction 1. Ducoulombier v. Baldwin, 101 S.W.2d 96. (5) Said instruction is prejudicially and reversibly erroneous in failing to hypothesize sufficient facts to make a submissible case of negligence. Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Ward v. Poplar Bluff Ice Fuel Co., 264 S.W. 80; Swain v. Anders, 163 S.W.2d 1045. (6) Said instruction is prejudicially and reversibly erroneous in that it failed to submit to the jury the issue of whether the act of defendant in permitting the automobile to be driven at night with defective lights was a negligent act. Nagel v. Thompson, 237 Mo. App. 1061, 170 S.W.2d 416; Jablonski v. May Department Stores Co., 153 S.W.2d 786; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; Hilton v. Mudd, 174 S.W.2d 31; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234. (7) Said instruction is prejudicially and reversibly erroneous in failing to require the jury to find a causal connection between defendant's acts and the accident and injuries to deceased. Benham v. McCoy, 213 S.W.2d 914; Wecker v. Grafeman-McIntosh Ice Cream Co., 326 Mo. 451, 31 S.W.2d 974; Bowers v. Columbia Terminals Co., 213 S.W.2d 663; Counts v. Thomas, 63 S.W.2d 416.
Cortner Beals, Perry M. Cortner and Dwight Beals for respondent.
(1) The court did not err in refusing to sustain defendant's motion for directed verdict requested by defendant at the close of all evidence. The evidence sustained the allegation of negligence in plaintiff's petition. Holmes v. McNeil, 203 S.W.2d 665; Lowry v. Mohn, 195 S.W.2d 652; Kopp v. Traders Gate City Natl. Bank, 210 S.W.2d 49; Larsen v. Webb, 58 S.W.2d 967. (2) The laws of Missouri permit a tort action to be maintained by a parent against an adult child. Wells v. Wells, 48 S.W.2d 109; Myers v. Hauser, 61 S.W.2d 214; Curry v. Dahlberg, 110 S.W.2d 742; Massey-Harris Harvester Co. v. Federal Reserve Bank, 48 S.W.2d 158. (3) It is not against public policy for a parent to sue an adult child even though they are living together as a family. LoGalbo v. LoGalbo, 246 N.Y.S. 565; Rozzell v. Rozzell, 281 N.Y. 106; Estes v. Estes, 127 S.W.2d 78; Brelke v. Knaack, 242 N.W. 176; Groh v. Krohn, 271 N.W. 374. (4) The question of fraud and collusion between a parent and child in such an action is not a question of law but a question of fact to be submitted to the jury. George v. George, 88 S.W.2d 71. (5) Decedent was not guilty of contributory negligence as a matter of law under the evidence in this case. State ex rel. Thompson v. Shain, 163 S.W.2d 967; Rhineberger v. Thompson, 202 S.W.2d 64; Brinkley v. United Biscuit Co. of America, 164 S.W.2d 325; Edmiston v. Texas N.O.R. Co., 138 S.W.2d 526; Scism v. Alexander, 93 S.W.2d 36; Bynor v. Porter, 9 A.2d 357; Cherney v. Simonis, 265 N.W. 203; Niles v. Phillips Express Co., 193 A. 183; McAndrews v. Leonard, 134 A. 719; House v. Weinrich, 298 P. 766; Bushnell v. Bushnell, 131 A. 432. (6) The court did not commit prejudicial and reversible error in giving plaintiff's Instruction 1. Brinkley v. United Biscuit Co. of America, 164 S.W.2d 325. (7) Said instruction is not prejudicially and reversibly erroneous in failing to hypothesize sufficient facts to make a submissible case of negligence, in fact, it submitted to the jury all the facts pleaded and proven, it was within the pleadings and the evidence. Oglesby v. St. Louis-S.F. Ry. Co., 1 S.W.2d 172; Dodson v. Gate City Oil Co., 88 S.W.2d 866. (8) Said instruction is not prejudicially and reversibly erroneous and did not fail to submit to the jury the issue whether the act of defendant in permitting the automobile to be driven at night with defective lights, knowing the lights were defective and likely to go out was negligence; the instruction hypothesized all the facts pleaded and proven, and said facts constituted negligence as a matter of law. Cunningham v. Union Electric Co., 221 S.W.2d 758. (9) Said instruction is not prejudicially and reversibly erroneous by not requiring the jury to find in explicit words a casual connection between defendant's acts and the accident and injuries of the defendant, because the acts pleaded and required to be found by the jury showed a casual connection if not a direct connection between defendant's acts and the accident. The defendant in his answer admitted the death of deceased was a direct result of the injuries. State ex rel. v. Ellison, 208 S.W. 443; Sutter v. Metropolitan St. Ry. Co., 208 S.W. 851; Thompson v. City of Lamar, 17 S.W.2d 960; Stevens v. Dickey, 222 S.W.2d 563; Wheeler v. Breeding, 109 S.W.2d 1237.
Plaintiff filed this suit against her son, the defendant Richard Taylor, for the purpose of recovering damages for the death of her husband, the father of the defendant, who lost his life as a result of a car accident alleged to have been caused through the negligence of the defendant. Plaintiff obtained a verdict in the sum of $15,000. Failing to get a new trial, the defendant appealed from the judgment entered against him.
The defendant on this appeal briefed four points as grounds for setting aside the judgment. They are (1) that the evidence was insufficient to sustain a verdict against him; (2) that it is contrary to public policy to permit a parent to sue a child where they are living together as members of a family; (3) that the decedent, plaintiff's husband, was guilty of contributory negligence as a matter of law; (4) that plaintiff's instruction No. 1 submitting the case to the jury was erroneous.
The first assignment requires a statement of the facts. At the time of the unfortunate occurrence giving rise to this suit, Charles M. Taylor, Sr., the deceased, and  his wife, the plaintiff, lived at 812 Tracy Avenue in Kansas City, Missouri. Living with them in the home were their three sons, Charles M. Taylor, Jr., 25 years old, Russell, 29 years old, and the defendant, Richard, 22 years old. The father was an engineer employed by the Missouri Pacific Railroad Company. The three sons were all employed and each one paid $10 per week to help defray the expenses of maintaining the home.
On the evening of October 29, 1946, the father desired to visit his brother, George, who lived near the Buckner-Tarsney Road a short distance south of U.S. Highway No. 40 in Jackson County, Missouri. At the supper table when the expected visit was mentioned, the father said he had missed the bus on which he intended to ride to his brother's place. Richard suggested that he would use his car to take his father to George's place. This offer was accepted. No one at the time except the defendant Richard possessed an automobile. Richard had a short time before purchased a secondhand car. The father and the three sons got into the car and left Kansas City by way of U.S. Route 40. Charles drove the car with his father sitting in the front seat beside him; Russell and the defendant Richard sat in the back seat. The evidence was that while they were driving along highway No. 40, the lights of the car grew dim a number of times. After remaining dim for a short period, the lights would again become bright. After they turned south onto the Buckner-Tarsney Road, at which time it was very dark, the lights again grew dim and then went out. After the lights went out, the car collided with a concrete abutment of a bridge. The father was seriously injured and died on October 31, 1946. The evidence was that the car at the time of the accident was being driven at about 30 to 35 miles per hour. There was some dispute as to the distance the car traveled after the lights went out; the distance was estimated from 35 to 70 feet. The charge of negligence was that Richard furnished and provided a car to take his father to visit his brother when Richard well knew the lights of the car were defective and likely to go out, thus rendering the car dangerous for use at night. Plaintiff's evidence was that Richard had previously had trouble with this car in Kansas City at night; that the lights had gone out completely on two occasions; that the defendant inquired about having them fixed and was told a rewiring which would cost $18 was necessary; that since defendant lacked sufficient funds, he did not have the repairs made. There was evidence that the deceased and the other members of the family did not know about the defective lights prior to the fatal night and did not know until after the accident that the lights had on previous occasions gone out completely. There is evidence in the record that Charles, the driver of the car on the night in question, suggested putting in a new fuse to fix the lights; that the defendant advised waiting until they reached "Uncle George's place." A jury by its verdict found the above evidence to be true. The facts as stated certainly are sufficient to show negligence on the part of the defendant.
On the question of whether it is contrary to public policy for a parent to maintain an action in tort against a child living in the house as a member of the family, we shall confine ourselves to the facts of the present case. It is a fact that the defendant lived at home as a member of the family. It is also a fact that the defendant was not a minor since he was 22 years old at the time of the accident which occasioned this lawsuit. We are not disposed to consider this question at great length. We note that the subject has been discussed in numerous cases in many of our states. The most recent is the case of Cowgill, Adm'r v. Boock, Adm'r, No. 4708, Vol. 50, No. 20, p. 705, Advance Sheets of the Supreme Court of Oregon. The Oregon court decided, by a vote of 4 to 3, that an unemancipated child can maintain an action against his parent for a personal tort. Those who are interested will find there a thorough review of the subject matter in a majority opinion, two concurring opinions, and two dissenting opinions. In a recent case, Hale v. Hale, 230 S.W.2d 610, the Court of Appeals of Kentucky held that the common law disability of a parent to sue a child in tort, or vice versa, was not applicable in cases arising under  the Kentucky wrongful death statute. Appellant in the case before us cited many cases to support his contention. In many of the cases we find a minor child is either plaintiff or defendant. There is more reason to apply the rule in a case where the child is a minor than where he is of age. The rule is generally not applicable where the child is of age at the time the cause of action arose. 39 Am. Jur. 735, Sec. 90, and 738, Sec. 92; Reingold v. Reingold, 115 N.J.L. 532, 181 A. 153, l.c. 156 (2-4); 46 C.J. 1324, Sec. 159.
Appellant in his brief has also cited cases from other jurisdictions, such as Kitchens v. Duffield, 149 Ohio St. 500, 79 N.E.2d 906, involving "Guest Statutes." We have no such statute in Missouri and therefore it is not necessary to consider such cases. Appellant in his brief says, "It is perfectly obvious that plaintiff, her two other sons and defendant were cooperating together to mulct the liability insurers of the defendant." There was no issue on the question of collusion presented at the trial of the case. There is no contract of insurance before us. Whether defendant was or was not insured is not before this court. George v. George, 88 S.W.2d (Ark.) 71, l.c. 72 (1). If an insurer desires not to insure against casualties of this nature, the contract of insurance can be worded so as to exclude such risks.
The record in this case presents no evidence justifying this court to rule that the suit by plaintiff cannot be maintained against her son who was of legal age when the alleged tort was committed. Wells v. Wells, Mo. App., 48 S.W.2d 109.
We must rule against appellant's contention that the decedent was guilty of negligence as a matter of law. That question was properly submitted to the jury. A guest in a car is not required to keep a constant lookout and to make frequent suggestions to the driver concerning the manner of operating the car. The guest is required to exercise ordinary care. In this case the evidence shows that the only person who had knowledge that the lights were so defective that there was danger of their going out completely was the defendant. When the driver made the suggestion that a new fuse be installed, the defendant demurred and said to go on to their uncle's place where the old fuse could be replaced. This was an indirect assurance that the car was reasonably safe to continue on its journey. In the circumstances the trial court's ruling was correct. 45 C.J. 1016, Sec. 567, and p. 956, Sec. 513.
We now come to the final assignment of error wherein appellant says that plaintiff's instruction No. 1 submitting the case and authorizing a verdict was erroneous. The principal defect as appellant contends is that the instruction did not submit to the jury the question of whether the appellant's conduct constituted negligence, but that the instruction simply told the jury that if the defendant was guilty of certain acts he was negligent. Appellant also says that the facts submitted by the instruction were insufficient to constitute negligence and that the jury was not required to find that the negligence, if any, was the proximate cause of the decedent's death. The portion of the instruction containing the deficiencies as contended by the defendant reads as follows: "that prior to the driving of said automobile as aforesaid defendant knew that the lights on said automobile were defective and faulty and likely to go out; that defendant knew that it was unsafe to drive said automobile at night, if you so find, then the defendant was negligent in requesting and permitting said automobile to be so operated and driven; and that if you further find and believe from the evidence that as a result of said lights going out, the said automobile hit the abutment of a bridge; that as a direct and proximate result of said car hitting the abutment of a bridge the deceased was injured; and that as a direct result of said injuries the said Charles M. Taylor died on October 31, 1946; * * *." We have examined the cases cited by appellant and find they do not support the theory advanced. Note in Owens v. McCleary, 313 Mo. 213, 281 S.W. 682, l.c. 685 (5), this court had the following to say about an instruction:
"Instruction No. 1 directed the jury to determine whether `in making said treatment the defendant carelessly and negligently injured the plaintiff' without  giving them any guidance as to the specific acts or omissions, which, under the law, would constitute negligence. It permitted them to base a finding for plaintiff on any theory of negligence which they could construct or evolve out of their own minds, and was therefore erroneous."
The instruction given in the case before us is not subject to that deficiency. This instruction required the jury to find, before authorizing a verdict, specific acts on the part of the defendant. These acts, if true, constituted negligence. We deem it common sense that using a car, on the highways on a dark night, with defective lights which the operator knows are likely to go out is negligence.
This court has on a number of occasions held that an instruction is correct which requires a jury to find specific facts which, if true, constitute negligence. See Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866, l.c. 872. 873 (7); Ward v. Missouri Pac. Ry. Co., 311 Mo. 92, 277 S.W. 908, l.c. 910, 911 (6); Oglesby v. St. Louis-San Francisco Ry. Co., 318 Mo. 79, 1 S.W.2d 172, l.c. 178, 179 (9, 10); Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045, l.c. 1052 (14) (15). In the last case cited this court stated the rule to be as follows:
"Where an instruction requires the jury to find specific facts which necessarily constitute negligence as a matter of law it is immaterial that the instruction does not require the jury to find that such facts, if found, constitute negligence."
We must also rule against appellant's contention that the instruction did not require the jury to find that the negligence, if any, was the proximate cause of the death of plaintiff's husband. A reading of the instruction hereinbefore quoted answers that contention. Note what it says: "* * * and that if you further find and believe from the evidence that as a result of said lights going out, the said automobile hit the abutment of a bridge; that as a direct and proximate result of said car hitting the abutment of a bridge the deceased was injured; * * *." We think the above language plainly required the jury to find that the negligence of the defendant was the proximate cause of the death of plaintiff's husband.
The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.