Plumley v. Klein

*9Black, J.

(dissenting). The Court has chosen this sleaziest conceivable of pleaded causes as opportune for nullification of Elias v Collins, 237 Mich 175 (1926). More of Elias, later.

With judicial tenure voluntarily limited to a few months, I at first was inclined by the philosophy of futility to "go along” (by concurrence in the ordered result) with this latest of a steady line of exuberant overrulements of settled tort-law decisions a once revered Court has handed down. There was yet another reason, admittedly cynical, for toleration from here on of more such defenseless predispositions. When the trial profession in particular is forced to endure progressive judicial destruction of the "rule of law” in our state, the members thereof may observe resignedly that such doings moderne do after all mean more rather than less law business. Whether this is in the public interest, apart from the interests of campaign contributors and political supporters, and whether it consists with the sworn duty of a Court of final resort, is something else. At any rate I cannot hold still before this latest judicial monster. Among other fatuities it will license one, proceeding under the wrongful death statute as sole beneficiary of the cause alleged, to obtain a judgment he himself is legally liable to satisfy.

From here on I will proceed on assumption that this plaintiff, owner of the motor vehicle of death, has no — or insufficient — liability insurance.1

Such is an assumption we must indulge unless, *10of course, our majority is willing to say right out that Elias will continue to apply where the defendant has no liability insurance. That may indeed be the Court’s intent, for I find below its quotation of Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963), this concluding sentence (ante p 15):

"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.”

It is an assumption we must abide in view of section 3030 of The Insurance Code of 1956 (MCLA 500.3030; MSA 24.13030) (discussed post); a statute which since 1929 has denied all right of original suit against the defendant’s liability insurer.

It is an assumption we must employ upon review of every action for wrongful death, for the statute under which such actions may be brought does not condition the imposed liability, of one guilty of having caused death (by "wrongful act, neglect or default”), upon the presence of liability or other corresponding insurance (MCLA 600.2922; MSA 27A.2922). The wrongdoer’s liability is absolute.

It is an assumption we must apply at all hazard, for judges writing law applicable to a class of actions (here for intrafamilial torts) cannot rely upon the continued solvency of an insurer or, *11indeed, upon the specific applicability of any insurance policy.2

Regrettably, this pleaded cause was tried and decided in circuit solely upon motion for summary judgment. Now let us examine it in the.light of the pleaded facts and application thereof to our own statutory law, rather than that of other states.

The plaintiff, Howard Plumley, was outright owner of the motor vehicle his wife was driving when it collided head on with another motor vehicle driven by another defendant, David William Rumery. Mr. Plumley charges that wife with guilt of negligence which caused or contributed in causing the death of all four minor children born to him and his said wife.3 He also charges Mr. Rumery (and the owner of the motor vehicle driven by Rumery) with acts of alleged causal negligence corresponding with those charged by him against his wife. Under the wrongful death statute he "seeks judgment against defendants, jointly and severally”, in the sum of $54,000.

Mr. Rumery filed a cross-claim against the defendant personal representative of Mrs. Plumley, alleging that she was causally and exclusively negligent and that he, by the collision, suffered severe personal injuries to his damage in the sum of $70,000. That cross-claim remains for trial, undisturbed by what we do here.

Portrayed thus is the case selected for overruling of Elias, with the Court left blind as to the fact if it be a fact that plaintiff purchased and maintained liability insurance sufficient to cover all he *12says he is entitled to collect, plus the amount Mr. Rumery says he is entitled to collect from the same source.

Now consider majority reliance upon Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963) and Silesky v Kelman, 281 Minn 431; 161 NW2d 631 (1968), the latter quoting and relying upon Goller. Our majority (ante p 7) quotes only the final sentence of that paragraph of Goller which tells Goller’s story of present concern. I quote the whole paragraph, the one that follows reference by the Wisconsin Supreme Court to the origin of this "let 'em sue if there is insurance” idea (Goller 411-412):

"This court, however, has refused to consider the existence of liability insurance a sufficient basis for departing from the rule of Wick v Wick, supra [192 Wis 260; 212 NW 787; 52 ALR 1113 (1927)]. Lasecki v Kabara (1940), 235 Wis 645, 294 NW 33, 130 ALR 883; and see also Fidelity Savings Bank v Aulik (1948), 252 Wis 602, 32 NW2d 613. This accords with many decisions from other states that the mere fact that the particular defendant-parent is protected by liability insurance does not enable his minor child to maintain an action when, in the absence of such insurance, he could not otherwise maintain it. Anno. 19 ALR2d 423, 435-436. 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 of course comes from a state which by statute permits direct suit against the defendant’s liability insurer (Farmers Mutual Automobile Insurance Company in Goller); whereas in Michigan *13that is disallowed precisely (MCLA 500.3030; MSA 24.13030). The pertinent idea advanced in Goller and pursued by Silesky came from 1 Harper and James, Law of Torts, p 650, § 8.11, pointing out "one situation in which family harmony is not thereby disturbed arises where there is liability insurance coverage.”

Neither case goes so far as to hold that the presence of liability insurance, by itself, will or should permit the maintenance of tort actions by children against their parents. Each stops by saying that the prevalence of liability insurance in personal injury actions is a proper element to be considered in determining whether to overrule as advocated. I therefore do "consider” it, just as this Court did in Elias v Collins. I do more, desiring to make sure before going a step farther that there is not just that "prevalence”, but also that liability insurance with clear sufficiency thereof exists for the case at hand.

In a word, it is suggested by way of a polite challenge that if the Court is determined to go ahead willy-nilly, the Justices ought first to say that son now may sue father, and daughter now may sue mother, only if the defendant parent is actually and adequately insured against such newly installed liability, and then only to the monetary amount thereof. Otherwise, what happens to the argument that actions of such nature are not "disruptive of family harmony”?

Elias is as good law today as when written. It tells us, after having quoted and considered then extant authorities (pp 178-179):

"Plaintiff’s counsel recognize this as a rule of the common law, but they argue that modern business methods have so changed with the coming of the automobile and the insurance thereon that the common-law *14rule should be modified to allow minors to recover against their father for torts, inasmuch as insurance companies promise to reimburse the insured for any judgment gotten against him for injuries caused by the automobile. Perhaps there is a spice of good sense in this, but, if the rule is to fade away because the reason is gone for its existence, what will we say as to boys who are injured while working on farms or in industrial plants, by reason of the negligence of their fathers? In these cases there is as much need of the common-law rule as there ever was.”

I ask the same question: If the rule is to be discarded on account of the ascertained or assumed presence of liability insurance covering motor vehicles, what are we to tell that great horde of newly suable but non-insured fathers and mothers who, quite aside from liability arising from traffic accidents, cause negligent injury to their children? As in Elias, "In these cases there is as much need of the common-law rule as there ever was.”

I stand by Elias and therefore vote to reverse and remand for entry of judgment upholding the judgment of the circuit court.

There is nothing of record disclosing (see GCR 1963, 310.1) that Mr. Plumley purchased and maintained automobile liability insurance or, if so, whether same is sufficient in amount (a) to satisfy any judgment rendered in favor of cross-claiming defendant Rumery, and (b) to satisfy any judgment that might be rendered in Mr. Plumley’s favor against his deceased wife’s personal representative. We must keep in mind that Mr. Plumley, the registered and actual owner of the motor vehicle his wife was driving at the time of tragedy, would *10be legally liable to satisfy both such judgments — if entered and permitted to stand— insurance or no insurance (MCLA 257.401; MSA 9.2101). Section 257.401 reads, explicitly and pertinently as it has since 1915:

"Sec. 401. * * * The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires. * * * ”

For an instance of this last, see recent Federoff v Ewing, 386 Mich 474 (1971).

Strangely, he does not charge his wife with having actionably destroyed, by her death, his right to continued conjugal consortium and companionship.