dissenting.
The central issue in this case is whether a parent who negligently injures his or her child is liable for contribution to another whose negligence also caused the injury. The Court holds that if the parent is negligent only in the management, supervision and control of the child, a claim for contribution against the parent by the joint tort-feasor is barred by parental immunity. While I do not disagree with this holding as an abstract legal proposition, I do disagree that it can be applied in this case when parental immunity was never pleaded or raised in any way in the trial court. I therefore dissent.
Defendants in this case pleaded that plaintiff Janet Shoemake was negligent, not only in the management, supervision and control of her daughter, but generally in her failure to exercise ordinary care.1 Defendants sued for contribution from Shoemake. The jury found that Shoemake was 45% responsible for her daughter’s accident.
Shoemake never pleaded parental immunity. Although the defense is not among the affirmative defenses listed in Tex. R.Civ.P. 94, I agree with the Court that it is, in the language of the rule, “a matter constituting an avoidance or affirmative defense.” See also Davis v. City of San Antonio, 752 S.W.2d 518, 519-520 (Tex. 1988) (governmental immunity is an affirmative defense). As such, it must be pleaded or it is waived. Tex.R.Civ.P. 94; see also Davis, 752 S.W.2d at 520 (governmental immunity and charitable immunity must be pleaded as affirmative defenses or they are waived).
Nevertheless, the Court excuses the failure to plead parental immunity in this case because the defense “is apparent on the face of the pleadings, and is established as a matter of law.” Ante, at 937. Although one might well argue, with respect to the first phrase quoted, that it is apparent in this case from defendants’ pleadings that Shoemake should have pleaded parental immunity, it can hardly be said that she did. And it cannot be said, with respect to the second quoted phrase, that the defense is established as a matter of law. To the *939contrary, whether the defense is applicable depends upon whether Shoemake was negligent and in what particulars. Shoemake’s negligence was a matter properly decided by the jury upon the evidence submitted. It cannot be determined from the pleadings alone whether Shoemake was protected by parental immunity. According to the Court, if defendants here could demonstrate that Shoemake was negligent other than in the management, supervision and control of her daughter, parental immunity would not insulate her from liability. Thus, whether the defense of parental immunity is available to Shoemake is very much a question of fact.
The Court also excuses Shoemake’s failure to plead parental immunity on the ground that it would be against public policy to hold her liable for contribution for her daughter’s injuries. In so doing, the Court contradicts its own authorities. Surely it is no more against public policy to hold a parent liable when he or she might have claimed immunity than it is to hold the government or a charity liable when they might have claimed immunity. As the Court notes, citing Davis, 752 S.W.2d at 520, we have held that governmental immunity and charitable immunity can be waived by the failure to assert them as affirmative defenses. If immunity can be waived by governments and charities, then it seems to me it can be waived by parents. The converse is also true: if a parent may assert immunity without pleading it, there is no logical basis for denying the same right to others, like governments and charities. That conclusion, however, would contradict Davis. Thus, the Court has either overruled Davis without saying so, or cited it without following it, or carved out a special exception for this case.
As its sole authority for excusing the pleading of parental immunity in this case, the Court cites its recent opinion in Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex.1991), in which we held that “the defense of penalty is not waived by the failure to plead it if it is apparent on the face of the petition and established as a matter of law.” In Phillips, the plaintiff pleaded that she was entitled to recover ten times her actual damages according to a provision in a contract she had with her husband. Assuming she was correct, her own pleadings conclusively demonstrated that she sought to enforce a penalty. We held that a provision authorizing recovery of decuple damages was an unenforceable penalty on its face. No evidence could demonstrate that such a provision was any less a penalty than it appeared on the face of plaintiff’s pleadings. Furthermore, we observed that a penalty provision was similar to an illegal contract, and that “the courts will not enforce a plainly illegal contract even if the parties do not object.” Id. at 789; Texas & P. Coal Co. v. Lawson, 89 Tex. 394, 34 S.W. 919, 921 (1896). Penalty, like illegality, but unlike immunity, cannot be waived.
Phillips is simply inapposite in this case. Here, assuming defendants are correct in their allegations that Shoemake was negligent, her liability might or might not be barred by immunity, according to the Court. Both Shoemake’s liability and her immunity from liability are factual issues to be resolved on the evidence. Although the Court refers to Shoemake’s immunity as being both apparent on the face of her pleadings and established as a matter of law, it is simply neither. Even if Shoe-make’s immunity could be established by defendants’ pleadings, she could waive that immunity, and the law would not protect her without a timely assertion of the defense. In this respect immunity is different from penalty and illegality. By extending the holding of Phillips from the defense of penalty to the defense of immunity, the Court necessarily holds that the requirement that affirmative defenses be pleaded will be relaxed whenever it appears from the claimant’s pleadings that an affirmative defense could be pleaded. While I do not agree with this change in our pleading rules, the Court will lack justification for not adhering to it when it is not so intent upon a result as it is in this case.
*940The Court also states that Shoemake’s pleadings raise some affirmative defense, even if its exact nature cannot be ascertained. The language to which the Court points states:
“Counter-Defendant would further show that as a matter of an affirmative defense, Counter-Plaintiff herein is not entitled to indemnity nor contribution from Janet Shoemake, as a matter of law.”
Shoemake included an essentially identical paragraph in all her pleadings in response to defendants’ counterclaims. The Court states that because defendants did not specially except to this pleading, they cannot complain that it lacks specificity. There are two problems with the Court’s position. The first is that Shoemake never argued that the quoted language was sufficient to raise immunity as an affirmative defense until her rebuttal during oral argument in this Court. Having failed to raise this argument in the court of appeals, Shoemake ought not to be heard to make it now. The second flaw in the Court’s position is that it violates the rule that pleadings must give fair notice of what is alleged. Tex.R.Civ.P. 45(b). Pleading “as an affirmative defense, I am not liable”, gives no notice at all, much less fair notice, of the allegation made. The Court must conclude that defendants should have known from this pleading that Shoemake was asserting immunity. Again, although I do not agree with this conclusion, the Court offers no reason for not applying the same rule in other cases.
I would hold that Shoemake could be protected by parental immunity only if she affirmatively pleaded it in the trial court, and would therefore affirm the judgment of the court of appeals. Accordingly, I dissent.
PHILLIPS, C.J., and GONZALEZ and DOGGETT, JJ., join in this dissenting opinion.
. Defendants Fogel, Ltd. and Danny Fogel pleaded that "Janet Shoemake was negligent in the management, supervision and control of Miranda Gilley". Defendants Federal Group I and William Hummel pleaded that "Janet Shoemake failed to exercise ordinary care for the safety of her daughter” and "negligently ... failed to maintain proper supervision of her daughter". Defendant International Property Management, Inc. pleaded that "Janet Shoemake was negligent on the occasion in question, including, in her management, supervision and control of Miranda Gilley”.