author: REED, Justice.

text:
    HOLDAWAY DRUGS, INC., and David T. Holdaway, Movants, v. Thomas M. BRADEN, Respondent.
    Supreme Court of Kentucky.
    June 12, 1979.

      C. Dant Kearns, Stites, McElwain & Fowler, John W. Potter, Porter, Gulick & Potter, Louisville, for movants.
    Stanley M. Billingsley, Carrollton, Stephen G. Horner, Louisville, for respondent.
   REED, Justice.

This is a defamation action. A discharged employee sued his former employer for allegedly slanderous statements uttered to an agent for a prospective employer on one occasion and on another occasion overheard by fellow employees and on still another occasion uttered to a parent of a fellow employee. The jury found in favor of the discharged employee and awarded him compensatory but not punitive damages. The former employer appealed to the Court of Appeals where the judgment of the trial court was affirmed. We granted discretionary review. For the reasons later stated, we reverse the decision of the Court of Appeals and remand the cause to the trial court for a new trial.

I

The movant, David Holdaway, is the owner and operator of a drugstore where the respondent, Thomas Braden, was employed as a delivery boy.

According to Holdaway, he noticed a substantial shortage in controlled, Schedule II drugs at his drugstore in January of 1975. He suspected an employee to be responsible. He confided his suspicions to his chief pharmacist, a seventy-year-old man named Carter. Holdaway requested Carter to be on the alert. Shortly thereafter, Carter reported that he had seen Braden go into a restroom with a bottle of Parest (a Schedule II drug) and had also seen Mould (another employee whose civil action for defamation against Holdaway has been settled and who is not a party to the appeal) remove a bottle of medication from one shelf to another. Holdaway testified that on the basis of the Carter report and his own suspicions he discharged Braden and Mould in a conversation at which other employees of his drugstore were present and within hearing. Braden introduced evidence that Holdaway repeated his accusations to Frank May, a friend of Braden’s and to the mother of Mould.

Holdaway sought to introduce evidence that during an investigation of the drug loss by the Kentucky Drug Enforcement Agency, all employees of the drugstore, except Braden and Mould, voluntarily took a lie detector test and were exonerated. Bra-den and Mould refused to take the test. The trial judge excluded this evidence. Holdaway also sought to introduce evidence that Braden was a drug user. Although Braden introduced evidence that Holda-way’s daughter was a drug user who was a cause of great concern to her father, the trial judge excluded Holdaway’s proffered evidence that Braden was a drug user.

It was established that after his discharge, Braden applied for employment with various life insurance companies. These companies employed Retail Credit Corporation (now Equifax Services) to investigate Braden’s applications for employment. Retail Credit contacted Holdaway and asked about Braden’s employment with him and the reasons for his leaving it. Holdaway replied that Braden had been a “very good” employee and that he had had no problems with him “up until the present time” and he was “under suspicion of theft of narcotics.” Retail Credit reported this information to the life insurance companies and this information influenced them not to hire Braden.

Under instructions, which we will later discuss in more detail, the jury returned a verdict for Braden against Holdaway. The jury awarded damages as follows: $1,850.00 for “compensatory damages”; $2,100.00 specifically for “loss of income”; punitive damages “0.” Judgment was entered for Braden against Holdaway in the amount of $3,950.00.

II

Over Holdaway’s specific objections, the trial judge not only did not instruct the jury that the communication to Retail Credit was conditionally privileged, but gave a single instruction covering the admitted communication to Retail Credit and the disputed nonprivileged communications to other persons.

The instructions permitted the jury to imply malice from the defamatory nature of the words used as to all communications the jury believed were made for the purpose of imposing liability for compensatory damages. The instructions, however, did require the jury to find actual malice, defined as ill will, hatred or wrongful motive, if in the exercise of discretion they determined that punitive damages should also be imposed.

Braden conceded at oral argument that the communication from Holdaway to Retail Credit was conditionally privileged under federal statutory law and under Kentucky common law.

In considering Holdaway’s assertion that the jury instructions were prejudicially erroneous, we first issue a caveat. Since the parties did not contend in the trial court, the Court of Appeals or in this court that the present Kentucky decisional law on defamation should be re-examined, we confine our consideration to the case as practiced.

In our view, the jury instructions were prejudicially erroneous because they imper-missibly allowed the jury to impose strict liability for the communications made pursuant to an admitted conditional privilege.

Prosser’s comments point up the problem:
“Furthermore, the qualified privilege will be lost if the defendant publishes the defamation in the wrong state of mind. The word ‘malice,’ which has plagued the law of defamation from the beginning, has been much used in this connection, and it frequently is said that the privilege is forfeited if the publication is ‘malicious.’ It is clear that this means something more than the fictitious ‘legal malice’ which is ‘implied’ as a disguise for strict liability in any case of unprivileged defamation.”

Prosser, Law of Torts, Sec. 115 at 794 (4th ed. 1971) (footnote omitted).

We consider the terms “qualified privilege” and “conditional privilege” to be synonymous.

In Weinstein v. Rhorer, 240 Ky. 679, 42 S.W.2d 892, 895 (1931) the court stated: “The only difference between cases where qualified privilege is relied on and cases where the defense is a general denial or justification is that where privilege is pleaded the burden of showing actual malice is put upon the plaintiff.” Massengale v. Lester, Ky., 403 S.W.2d 701 (1966) involved the defense of absolute privilege in a defamation action. There, the court declared: “The [trial] court did not instruct on privilege, and it is our conclusion that the omission was a prejudicial error.” Id. at 703.

A three-judge panel of the Court of Appeals upheld the trial court’s judgment with one judge dissenting. The majority seemed to regard the erroneous instructions to be cured by the verdict. They stated: “From the instructions given, in order to find for the [plaintiff] the jury had to have found the appellant published the statements with malice. Malice operates to destroy the qualified privilege. In any event, the jury found for [plaintiff] and necessarily found the appellant acted with malice. The submission of instructions on the qualified privilege with the disclaimer that malice destroys the privilege would not have changed the outcome of the jury’s decision, and the appellant cannot claim prejudice.” The dissenter, Judge Howerton, aptly observed: “The majority concluded that the jury found for the plaintiff, and necessarily found that appellants acted with malice. I can agree only to the point that they found implied malice, because the jury in fact rejected any punitive damages which required a finding of actual malice.” The dissent concluded that it was prejudicial error not to inform the jury of the privilege and the necessity of actual malice to overcome the privilege, which related to that portion of the award given for loss of wages caused by the unfavorable report to Retail Credit. We agree with that conclusion.

Holdaway does not claim that his report to Retail Credit was not actionable at all as the publication of suspicion in a conditionally privileged context. He admits that if he is found to have been motivated by actual malice, as those terms are defined in the trial court’s instructions relative to punitive damages, he is subject to liability for abuse of the conditional privilege.

It is clearly apparent that the alleged harm caused by the claimed abuse of the conditional privilege is severable from the alleged harm caused by the claimed unprivileged defamation. Therefore, we hold that the instructions should be recast to separate the privileged from the unprivileged communications. The jury should be advised that Holdaway is not responsible for any damages caused by his report to Retail Credit unless he was motivated by “actual malice,” as those terms are defined in the instructions. He remains subject to strict liability, for all practical purposes, for the harm caused by proven defamation uttered in a non-privileged context. This facet is adequately covered by the trial court’s instructions as given. Holdaway is entitled to a new trial because of the prejudicially erroneous instructions.

Ill

Holdaway complains about two rulings of the trial judge which excluded proffered evidence.

A.

Holdaway offered evidence that all of the employees of the drugstore except Braden and Mould took a polygraph test. The polygraph exonerated the employees who were examined. Braden and Mould refused to take the test. The Court of Appeals’ panel unanimously held that the trial judge properly excluded this evidence. The Court of Appeals relied on Penn v. Commonwealth, Ky., 417 S.W.2d 258 (1967), which held that since the results of a polygraph test were inadmissible the refusal to take such a test “has no evidentiary significance whatever.” Id. at 258. A majority of this Court has concluded that this evidence was relevant and admissible for the limited purpose of establishing that Holda-way’s mental state was one of good faith without malice or ill will. Upon retrial, this evidence should be admitted accompanied by an admonition, if requested, that the evidence shall be considered by the jury, for such weight as they may conclude to give it, only on the issue of Holdaway’s mental state as it relates to good faith or actual malice or ill will on his part and shall be considered by them for no other purpose whatever.

B.

Holdaway also complains that the trial judge erred when he excluded evidence that Braden was a drug user. Holdaway argues that this evidence was relevant to his defense of truth to the claim of defamation. He asserts that motive is a significant element in proving theft. The Court of Appeals’ panel upheld the exclusion of the evidence. Judge Howerton again dissented. He stated: “In a defamation case, truth of the accusations is a complete defense. Proof of a motive is always relevant when attempting to prove that someone committed a particular act. If it was known that a person used drugs illegally, such proof would logically provide evidence of a motive for stealing drugs.”

In this case, Braden invoked the process of a public trial on a claim of defamation. He introduced evidence that Holdaway’s daughter was a drug user and had been “barred” from the drugstore. When the elements are balanced, we believe that the trial judge erred in excluding this evidence. Since the judgment must be reversed because of the jury instructions, we need explore this phase no further than to say that if the situation is substantially the same on the new trial, the “drug user” evidence should be admitted as relevant evidence whose probative value is not outweighed in the circumstances presented in this case by other elements which would permit its exclusion.

The decision of the Court of Appeals is reversed, the judgment of the Jefferson Circuit Court is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

All concur except REED, J., who dissents from the holding in part III A of the opinion.

      .So far as is pertinent, the instructions were:
      [Liability for Compensatory Damages]
      “1. If you believe from the evidence that at the times and places mentioned in the evidence, the defendant, David Holdaway, falsely and maliciously, spoke within the hearing of third persons words about the Plaintiff, Thomas Bra-den, . . which accused [him] of the commission of the crime of theft of narcotics from the defendant drugstore, then you will find for . Thomas Braden but unless you so believe from the evidence, then you will find for the defendant.
      [Amount of Compensatory Damages]
      2.(A) if you find for the plaintiff, Thomas Braden, you will award him such sum in damages as you believe from the evidence will fairly and reasonably compensate him for his loss of income not to exceed the sum of $2,100.00; for any humiliation or mortification caused his feelings by the speaking of the words concerning him, and for any damage done his reputation thereby not to exceed $17,-900.00, your total award for compensatory damages not to exceed the sum of $20,000.00,
      [Definitions of Malice and Actual Malice]
      3. ‘Malice’ in law, arises from the voluntary false speaking of slanderous words imputing crime to another in the hearing of some other person or persons. By ‘actual malice’ is meant ill will, hatred or wrongful motive.
      [Punitive Damages]
      4. If you find for the [plaintiff], you may in the exercise of sound discretion in addition to compensatory damages award such punitive damages as you believe from the evidence the [plaintiff] ought to recover if the speaking of the words complained of was induced from actual malice or reckless disregard of the [plaintiff’s] rights on the part of the defendant, or if he spoke the words knowing them to be false, not to exceed on this account the sum of $10,000.00."

      . 15 U.S.C.A. Sec. 1681h(e); Hart v. Reed, 40 Ky. (lB.Mon.) 166 (1838), Baskett v. Crossfield, 190 Ky. 751, 228 S.W. 673, 675 (1920), Wolff v. Benovitz, 301 Ky. 661, 192 S.W.2d 730, 733 (1946).

        . See Restatement (Second) of Torts, Sec. 602, Comment b, Illustration 1 at 291 (1977).

        .Id., Sec. 599, Comment b at 286.

      .Not including the writer.

      . It is the conclusion of the writer that the admissibility of this evidence should be left to the discretion of the trial judge who should exclude it if its probative value is substantially outweighed by the danger of misleading the jury and creating an avenue of unfair prejudice.


source: Caselaw Access Project

author: VANCE, Judge.

license: Public Domain

text:
    Andrew REED, Appellant, v. CITY OF RICHMOND, Appellee. Edward GRAVES, Wayne Grant, Michael Sexton, William K. Johnson, Carson Lawless, Danny B. Collett, Blaine Martin, and Glenn C. Gordon, Appellants, v. CITY OF RICHMOND, Appellee.
    Court of Appeals of Kentucky.
    April 27, 1979.
    Rehearing Denied June 22, 1979.

      Larry M. Greathouse, Robert C. Moody, Richmond, for appellee.
    Stephen D. Wolnitzek, Covington, for amicus curiae, Fraternal Order of Police of Kenton County, Charles T. Donaldson, President.
    William S. Haynes, Robert K. Salyers, Louisville, for appellants.
    Before HOWARD, VANCE and WIN-TERSHEIMER, JJ.
   VANCE, Judge.

These appeals arise from judgments in two separate actions which are factually related and involve similar issues. We have elected to dispose of both appeals with this opinion.

On August 2, 1977, appellant Reed was notified of his suspension without pay from his position as chief of the Richmond Police Department. Appellants Graves, Grant, Sexton, Johnson, Lawless, Collett and Martin were suspended without pay pursuant to City of Richmond Executive Order 77-3 dated August 3, 1977. Appellant Gordon was suspended by City of Richmond Executive Order 77-4, dated August 5, 1977.

A hearing on fifteen violations alleged against Reed was scheduled for August 5, 1977, at 7:00 p. m. Hearings on the charges filed against the other appellants (except Gordon) were scheduled for August 6, 1977, at 10:00 a. m. Appellants were unable to secure legal representation locally and on August 5, 1977, Reed contacted a Louisville law firm which consented to represent all of the appellants. This counsel did not arrive in Richmond until shortly before Reed’s hearing was scheduled to begin. Prior to the commencement of that hearing, counsel for appellant Reed orally requested that the hearing be public as required by KRS 61.-810(6). That request was denied. Written motions for a continuance due to insufficient time to confer with counsel and for the disqualification of the members of the hearing board were likewise denied. At the beginning of each of the other appellants’ hearings, the following written motions were tendered:

(1) motion for an open hearing;
(2) motion for a continuance;
(3) motion to disqualify the members of the board from hearing the case; and
(4) motion to dismiss the charges for lack of specificity.

All of these motions were denied.

The hearing board found Reed guilty of ten of the fifteen alleged violations and dismissed him effective immediately. Each of the other appellants was found guilty of some of the charges against him. Graves, Sexton and Grant were dismissed from the force. The others received suspensions without pay for periods of from two to ten days.

Separate appeals were prosecuted by Reed and by the other appellants to the circuit court, which heard the cases without a jury using the standard of review set out in Kilburn v. Colwell, Ky., 396 S.W.2d 803 (1965):

[I]n a de novo hearing under KRS 95.-460 the question to be determined is not whether there is substantial evidence to support the action of the city legislative body, but whether the evidence preponderates against it. 396 S.W.2d at 804.

The court in Kilburn went on to point out that the effect of using this standard is to shift the burden of proof to the appealing party and thus the review is “something less than purely de novo.” 396 S.W.2d at 804.

The trial court found that the evidence before it did not preponderate against the findings of the hearing board in either case and affirmed the disciplinary actions taken by the board. Separate appeals to this Court followed.

The issues raised by Reed in his appeal are substantially identical to those raised by the appellants in case 78-CA-791-MR. First it is urged that the trial court erred in failing to void the board’s action for violation of KRS 61.805 et seq., the open meeting law. Next, the appellants maintain the trial court improperly refused to dismiss the charges against them for lack of specificity. Thirdly, appellants contend they were denied a fair and impartial hearing as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution in that their motions for a continuance and for the disqualification of the board members were summarily rejected. Their final allegation is that the trial court’s findings are erroneous and should be set aside.

Without reaching the issue of whether the evidence before the trial court preponderated against the findings of the board, we have concluded that the judgment is erroneous in each case.

KRS 61.810 requires that all meetings of public agencies at which any business is discussed or any action taken shall be open to the public, subject to certain enumerated exceptions. Among those exceptions is the following:

(6) Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employe, member or student without restricting that employe’s, member’s or student’s right to a public hearing if requested, provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussion of general personnel matters in secret, (emphasis added.)

We believe the refusal of the hearing board to grant the appellants’ requests for public hearings clearly violates KRS 61.810. Nothing in that statute permits a public agency to condition an employee’s right to a public hearing upon written or timely notice. The requirement of holding an open hearing could have been satisfied by the simple expedient of opening the doors and permitting the public to attend the hearing. This opening of the doors could have been accomplished on such short notice as to render the board’s claim of lack of timely notice meaningless. Appellee argues that timely notice was required to make security arrangements but nothing in the record supports this. If, in fact, special precautions were deemed necessary, adjournment of the hearings for the length of time necessary to make such arrangements would not have been out of order.

We also note that the closed hearings were held without compliance with KRS 61.815 which specifies the conditions under which closed hearings may be conducted. Notice must be given in a regular open meeting of the general nature of the business to be conducted in the closed session and the reason for secrecy, KRS 61.-815(1). Closed sessions may be held only upon adoption of a motion for that purpose made in an open, public session, KRS 61.-815(2). Jefferson County Board of Education v. Courier-Journal and Louisville Times, Ky.App., 551 S.W.2d 25 (1977).

Under KRS 61.830, any formal action taken by a public agency in violation of KRS 61.810 and KRS 61.815 shall be voidable by a court of competent jurisdiction. We therefore hold that the action taken by the City of Richmond Administrative Hearing Board in disciplining appellants is void for failure to comply with KRS 61.810 and KRS 61.815.

As we have voided the action of the board for failure to comply with the open meeting statute and not upon the merits, it is foreseeable that the board will elect to reconsider these charges at a public hearing. We therefore believe appellants’ argument regarding the lack of specificity of the charges against them needs to be examined. A review of the charges in issue leads us to conclude that appellants’ contention is correct. KRS 95.450(2) contains the statement, “The charges shall be written and shall set out clearly the charges made.” The charges against appellants fail to designate the conduct constituting the alleged offenses and the time at which the infractions supposedly occurred.

However, insofar as any subsequent action by the board may involve these same charges upon which evidence has been heard, we are of the opinion that the appellants have been sufficiently apprised of the specifics of the charges to the extent that reconsideration of them is confined to matters placed in evidence before the circuit court. Further action upon the charges which were dismissed has been precluded by the failure of the appellee to appeal from their dismissal.

Appellants complain that they were denied a fair hearing because the members of the hearing board were involved in preferring charges against them. We cannot agree. In Arbogast v. Weber, 249 Ky. 20, 60 S.W.2d 144 (1933), it was held that city commissioners could not be enjoined from acting on charges against another commissioner even if it were shown that they were biased or prejudiced in the matter. In the case at bar, appellants had a statutory right of appeal and presumably an opportunity to show any evidence of prejudice by the board members at the hearing before the circuit court.

Although the standard of review set out in Kilburn v. Colwell, supra, will control insofar as the sufficiency of the evidence is concerned, that standard has no application to a determination of whether the board acted arbitrarily and unreasonably because of bias or prejudice. In any claim that the action of the board is arbitrary, the burden of proof rests upon the claimant, but the court will give full consideration to the fact that the same body acted as accuser, judge and jury.

Appellants also argue that they were denied effective assistance of counsel because of the failure to grant their motion for a continuance. Appellants’ counsel has now had time to fully explore all avenues of defense and this issue will not likely recur if the appellee chooses to reconsider the charges at another hearing.

Finally, the issue of attorneys’ fees is not properly before this Court.

The judgment of the circuit court is reversed for proceedings consistent with this opinion.

All concur.


author: WHITE, Judge.

text:
    Clyde IRVIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 1, 1979.

      Walter A. Baker, Glasgow, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
    Before WHITE, REYNOLDS and VANCE, JJ.
   WHITE, Judge.

Appellant, Clyde Irvin, was convicted of rape in the first degree and sentenced to 10 years in prison. He appeals this conviction alleging two grounds as reversible error.

Appellant one Clarence Shirley were each indicted separately, and charged in two counts with the crimes of rape and sodomy upon the same complaining witness on the same date. At the first trial the Commonwealth moved to consolidate the two indictments and try the defendants jointly. The trial court overruled the motion to consolidate, and separate trials were had, resulting in a hung jury in both instances.

At the second trial, again the Commonwealth moved to consolidate and, over the objection of appellant, the trial court sustained the motion and tried the defendants jointly. This trial resulted in appellant’s conviction for rape and he appeals. It is noted in passing that appellant was found not guilty of the charge of sodomy. However, Shirley was convicted on both counts of rape and sodomy.

Appellant alleges that the trial court abused its discretion in joining for trial the indictments of the separate defendants. This is a frivolous argument. Both indictments grow out of the same occasion, and the defendants acted in concert with each other upon the same victim. The appellant and the defendant Shirley could have been indicted jointly. This court sees no problem that would preclude their being tried jointly simply because the grand jury elected .to indict under separate indictments.

Appellant contends that the admissions and confessions of Shirley admitted at the second trial deprived appellant of his right to a fair trial because Shirley refused to take the stand and could not be impeached by evidence of prior convictions, and because appellant was denied his right to cross-examine Shirley.

While it is true that defendant Shirley could have been impeached by evidence of prior convictions had he taken the stand, such fact does not require separate trials. Alford v. Commonwealth, Ky., 432 S.W.2d 414 (1968). Neither does appellant’s inability to cross-examine Shirley warrant separate trials. Appellant relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), for relief. However Bruton v. United States, supra, is distinguishable from the case before us. In Bru-ton, supra, only one defendant confessed, and his confession inculpated his codefend-ant. However, in this case both appellant and Shirley confessed. Both defendants maintained the same defense theory of consent. Thus the facts of this case take it out of the Bruton rule, and United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296, 300 (2nd Cir.1968) (U.S. cert. denied 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123), becomes applicable: “Where the jury has heard not only a codefendant’s confession but the defendant’s own confession no such ‘devastating’ risk attends the lack of confrontation as was thought to be involved in Bruton.” Also see Meyer v. Commonwealth, Ky., 472 S.W.2d 479 (1971).

Appellant also argues that Shirley’s conduct at trial prejudiced his ability to receive a fair trial. Specifically, appellant relates the incident on the first day of trial when Shirley was 25 minutes late following the noon recess. After some 10-15 minutes when Shirley failed to appear, the trial judge conducted a conference both at the bench and in chambers. Both conferences occurred out of the hearing of the jury; therefore we find no prejudicial harm resulted.

As a second ground of error, appellant alleges juror bias. Juror Sylvester Sharp upon voir dire stated that he had not been present at the bond hearing of appellant. Appellant filed an affidavit with his motion for new trial which refuted this fact. By affidavit, Hade E. Basil stated that he had known juror Sharp some 20 years, and that during the bond hearing of appellant in October, 1977, Basil had been standing outside the entrance to the Barren Circuit Courtroom when Sharp came from the courtroom and stated, “If they done that they ought to be hung.” In response, the Commonwealth filed Sharp’s affidavit denying prior knowledge or information of the alleged crimes, other than possibly having heard something on the radio or reading about them in the local paper.

We find no abuse in the trial court’s actions here. It is within the discretion of the trial judge to assess the conflicting affidavits and he resolved the conflict in favor of the Commonwealth.

The judgment is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    Garnet COLE, Raymond Cole, Maxie Daniels, Russell Pack, W. H. Stratton, Charles Varney, and Florence Varney, Appellants, v. Dana STEPHENS, Ronald May, Carl Loftis, Paul McCoy, and John Raymond Smith, Appellees.
    Court of Appeals of Kentucky.
    June 1, 1979.

      Phil A. Stalnaker, Pikeville, for appellants.
    Dan Jack Combs, Pikeville, for appellees.
    Before GANT, HOWARD and HOWER-TON, JJ.
   HOWERTON, Judge.

Appellants appeal from a judgment establishing a sixth-class city to be known as Johnsonville in Pike County, Kentucky. The appellants present five allegations of error.

(1) The boundaries of the area to be incorporated do not comply with the requirements of KRS 81.040.
(2) The area to be incorporated is larger than the area permittedby KRS 81.040.
(3) The court erred in refusing to allow persons who signed the petition for incorporation to withdraw their names.
(4) The court erred in permitting various names to remain on the petition when the individuals were neither registered voters nor living in the area to be incorporated.
(5) The court lacked the jurisdiction to consider the petition because the appel-lees failed to provide a proper notice as required by KRS Chapter 424 and KRS 81.050.

Perhaps the first bridge to cross is an issue raised by the appellees, who represent the petitioners seeking to establish the town. They argue that KRS 81.060 prohibits any appeal from a judgment authorizing the incorporation of a city. Prior to January 1, 1976, such was the law by statute and decisions, with some exceptions; but, the enactment of § 115 of the Kentucky Constitution changed all of that. It provides:

In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the general assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage. Procedural rules shall provide for expeditious and inexpensive appeals. Appeals shall be upon the record and not by trial de novo.

Prior to the enactment of § 115, there had been no constitutional guarantee of an appeal in civil eases. The right to appeal was granted by a statute, KRS 21.060, and several limitations had been placed on the right to and method of appeal by KRS 21.060 and various other statutes.

Appellees argue that the incorporation of a municipality is not a “case” within the meaning of § 115. They contend that creating a city is a political and legislative act, and that only the general assembly may provide how towns may be organized, governed and classified. Ky.Const. § 156. Some basis for this argument can be found in the dictum in Engle v. Miller, 303 Ky. 731, 199 S.W.2d 123 (1947), which reads in part:

The action to the circuit court in that matter is not strictly judicial, for the creation or incorporation of the municipality is a political act and legislative function. The General Assembly has set up conditions for the establishment of a city or town and conferred the power upon the court to determine whether certain facts exist. That is the limit of judicial action. When the specified conditions are found to exist, there is no further judicial discretion in the court[s]. Id. at 734, 199 S.W.2d at 124.

The appellees attempt to further support their argument by citing several annexation cases. We do not find such cases appropriate, especially in light of the adoption of § 115 of the Constitution. Furthermore, appeals have been available in all annexation cases, except those involving a fifth-class city. KRS 81.230. Also, annexation proceedings in court, whether at trial or on appeal, are judicial functions.

The action by the circuit court was a “case.” It involved findings of fact, conclusions of law, and a judgment. These were judicial determinations, and the case was contested. The proceeding was a judicial function and an exercise of judicial power. Rohde v. City of Newport, 246 Ky. 476, 55 S.W.2d 368 (1932), was a municipal bond case, but it provided an occasion to define “judicial power” and “case.” The opinion reads at 479, 55 S.W.2d at 370:

Judicial power ... is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.
A case is a suit in law or equity, instituted according to the regular course of judicial proceedings.

The legislature has not attempted to require, and could not require, the court in this case to perform a nonjudicial function. The legislature has merely required that its requirements for incorporation be judicially tested and approved.

That portion of KRS 81.060, which incidentally was reenacted January 2,1978, and which reads, “but no appeal shall lie from the judgment,” is in direct conflict with the Kentucky Constitution and is therefore an unconstitutional restriction on the rights of the appellants.

We approve of the other provisions of KRS 81.060 to the extent that they limit the role of the judiciary. The statute also provides in part that if the requirements of size, population, numbers of petitioners, notice and publication, etc., have been met, the court “shall have no discretion as to the establishment of the town.”

What then is in the record to be reviewed? Before going to this next step, we also note that the appellees have argued that the stenographic transcript of evidence in this record is not properly a part of the record on appeal. We need not debate that point, because the record of the pleadings and the findings, conclusions, and judgment reveal that this case is clearly reversible.

We can consider the appellants’ first two issues together. KRS 81.040 provides, “[t]he boundary of any city, when incorporated, shall not exceed one-half (½) mile in each direction, the form of the city being square . . .” The description in the pleadings and in the court’s findings of fact indicates that the territory has 15 sides and contains 320 acres, which is twice the permissible size for original incorporation. One-half mile in each direction would provide only one-quarter of a square mile or approximately 160 acres. We are somewhat sympathetic with the trial judge’s reasoning that the boundaries in the type of terrain Johnson ville would incorporate would make it difficult to produce a true square, but we need not consider any arguments regarding substantial compliance, because‘this attempt to incorporate does not even provide remote compliance. The requirements of a one-half mile square may nevertheless be considered a strict requirement in light of the decision in Boone v. Smith, Ky., 263 S.W.2d 928 (1954), wherein at 929 the opinion reads, “[cjlearly, the Chancellor was correct in sustaining a demurrer to the petition on the ground that the proposed boundary did not comply with the statutory requirements.” The trial court had granted the demurrer because the boundaries were not square.

Appellants’ third argument raises the issue of whether or not names may be withdrawn from a petition for incorporation. Although it is no longer necessary to decide this issue to resolve this appeal, we will make a comment regarding our review of the law. The trial court concluded that the 35 persons who sought to remove their names from the petition should not be allowed to remove their names and cited Evans v. Maddox, Ky., 260 S.W.2d 661 (1953). The petition in Evans was for the purpose of requesting a vote, and even if some of the names on the petition were incorrect, or if some of the petitioners wished to withdraw their names, the final issue would stand for resolution at the requested election. We believe the case of Ellingsworth v. Shacklette, 201 Ky. 246, 256 S.W. 395 (1923), is more appropriate and dispositive of this issue. In Ellingsworth the court ruled that the trial court should permit the parties to amend their petition showing any changes made by petitioners until the time the judgment was rendered. Ellingsworth involved a petition to dissolve a city charter. The action by the court in that case would be final. If all factors for incorporation are met, then signatures by two-thirds of the registered voters of the area will constitute a final “vote” on the issue of incorporation. Considering the basic differences between petitions and secret ballots, together with the seriousness of incorporating a city, we believe some allowance should be given for a change of mind.

The question of whether or not all petitioners were registered voters and lived within the proposed area, would require a review of the evidence. A resolution of this issue is no longer necessary, and we will make no further comment regarding it.

Appellants’ final issue challenges the jurisdiction of the court on the ground that the petitioners failed to set out the date for a hearing in their notice. There is no question that the notices in the newspaper did not contain the date for the hearing. KRS 81.050 provides, “[t]he petition shall be docketed for hearing not less than twenty (20) days from the date of filing the petition. Notice of the filing of the petition and of the object shall be given by publication pursuant to KRS chapter 424.” KRS 424.140(1) provides, “[a]ny advertisement of a hearing, meeting or examination shall state the time, place and purpose of the same.” Failure to provide the required notice is jurisdictional. City of St. Matthews v. Beha, Ky.App., 549 S.W.2d 842 (1977). See also, Booth v. Copley, 283 Ky. 23, 140 S.W.2d 662 (1940).

For the foregoing reasons, the judgment of the trial court must be reversed with directions that the petition for incorporation be dismissed.

All concur.


author: RENDLEN, Judge.

text:
    STATE ex inf. John ASHCROFT, Attorney General, and ex rel. the CURATORS OF the UNIVERSITY OF MISSOURI, et al., Relators, v. The TOWN OF WELDON SPRINGS HEIGHTS, Missouri, a Municipal Corporation, Respondent.
    No. 61102.
    Supreme Court of Missouri, En Banc.
    June 19, 1979.
    John D. Ashcroft, Atty. Gen., Preston Dean, First Asst. Atty. Gen., Jefferson City, Jackson A. Wright, Columbia, Cyril M. Hendricks, Jefferson City, for relators.
    David A. McMahon, Clayton, for respondent.
   RENDLEN, Judge.

By quo warranto relators challenge respondent’s annexation of some 2000 acres of land in St. Charles County wholly owned by the University of Missouri, a public corporation of the State. Because most of the land involved was employed for farming purposes and unavailable for annexation under § 80.030, RSMo 1969, we hold the annexation void and oust respondent from the area taken.

Respondent, incorporated as a town under chap. 80, towns and villages, Revised Statutes of Missouri, included an area of 63.07 acres prior to the purported annexation. The land it attempted to annex comprised more than 2000 acres. Pursuant to ordinance of its town council adopted September 27, 1977, respondent filed a petition to extend its boundaries with the St. Charles County court alleging that the tract was not then being used for farming, gardening, horticultural or dairying purposes. The Curators filed “answer and objection to petition to extend boundaries” to which they attached an affidavit of the Uni ver sity’s vice-president for business management which stated in part “that said land is now and has been for many years used for farming and other horticultural purposes by The Curators of the University of Missouri . During the evening of May 2, 1978, the county court held a public hearing on the proposed annexation, and on June 22 entered an order approving the annexation.

Although relators mount several challenges to the validity of the county court’s order, we need discuss only one. Section 80.030, RSMo 1969, bars the annexation of agricultural land by respondent in these terms: “[N]o tract of ten acres or more of any unplatted or unsubdivided land used for farming, gardening, horticultural or dairying purposes shall be included in a town by such extension of boundaries without consent of the owner of such tract.” The .Curators’ written objections made clear, and there is no dispute, that the University did not give its consent and the annexed land exceeded 10 acres. Thus the only disputed issue is whether the land was being used for farming purposes.

It first should be stated that quo warranto lies to attack the annexation of land by a village. State ex inf. Eagleton v. Champ, 393 S.W.2d 516, 521, 530 (Mo. banc 1965). In proceedings in the nature of quo warranto this Court makes the findings of fact necessary for its decision, State ex inf. Eagleton v. Elliott, 380 S.W.2d 929 (Mo. banc 1964), and in view of the parties’ stipulation and other evidence in the record, appointment of a special commissioner to develop further evidence is not required. From the record here we find that prior to the county court’s public hearing of May 2, 1978, the Curators filed their objections and included the affidavit referred to above which identified the farming and horticultural uses to which the land was put. The written objections and affidavit were presented to the county court at the public hearing of May 2. After the public hearing, the county court requested an opinion from the prosecuting attorney as to the annexation, with particular reference to the question of use of the land for farming purposes. The prosecutor’s opinion, received on June 6, quoted the portion of § 80.030 set out above and suggested that evidence on the question would be required. Relators have additionally submitted as part of the record for this Court’s consideration the affidavit of the manager of Weldon Springs operations for the Curators wherein he states that the University cut and baled hay from four fields of the land sought to be annexed in 1977 and 1978, that wheat was planted and harvested in another field in 1977 and 1978, and that seven more fields within the acreage sought were used to pasture horses and cattle from 1974 through 1978 under written lease with certain persons from Troy, Missouri. Furthermore, most if not all of the above mentioned fields have been put to similar uses since 1967, which was the year affiant became the local manager for the University. A map attached to the affidavit shows that the fields involved for agricultural purposes comprise a substantial majority of the land in question. Significantly respondent has not chosen to submit countervailing affidavits or any evidence contrary thereto. In its brief respondent does not deny that the land has been employed for farming purposes. Instead respondent there argues that the University of Missouri is not a farmer or horticulturalist and does not fall within the class of persons protected by § 80.030. In so contending, respondent overlooks that § 80.030 makes decisive the character of the land, not the occupation of its owner. From all the evidence we find that the land came within the proscription in § 80.030 against annexation of land “used for farming . . . purposes,” and the annexation and extension of boundaries by respondent constituted an abuse of discretion and an invalid exercise of jurisdiction over territory thereby excluding the jurisdiction.

Respondent argues that this Court must presume the county court found the facts to be the opposite and must give deference to that finding. The argument fails in light of this Court’s opinion in In re Village of Lone Jack, 419 S.W.2d 87, 91 (Mo. banc 1967): “[0]n the question of whether the county court may have exceeded its jurisdiction by incorporating a large area of farm land ... we are not bound by the county court’s order [citation omitted] and decline to indulge the presumption urged by proponents.” See also State ex inf. Eagleton v. Champ, 393 S.W.2d at 526.

The purported annexation to the Town of Weldon Springs Heights ordered by the county court of St. Charles County on June 22,1978, is set aside and respondent is ousted from the area purportedly annexed.

All concur.

      . Respondent in its brief states that “There is no evidence that the land consists of more than 10 acres”; however, the “Information” alleges the annexed area includes more than 2000 acres and respondent by its answer admitted that fact as alleged.


author: BARDGETT, Judge. DONNELLY, Judge,

text:
    Denise FUGATE, a minor by her next friend, Carl Edward Stroup, Plaintiff-Appellant, v. Harold FUGATE, Defendant-Respondent.
    No. 60357.
    Supreme Court of Missouri, En Banc.
    June 19, 1979.
    Keith Brown, James R. Bickel, Nevada, Mo., for plaintiff-appellant.

      Laurence H. Flanigan, Carthage, Mo., for defendant-respondent.
   BARDGETT, Judge.

The question on this appeal is whether or not the doctrine of parental immunity bars an action brought by an unemancipated minor child, aged 10, against her father, seeking damages for the negligent wrongful death of her mother in a case where the mother and father had been divorced and the general custody of the child had been placed with the mother.

The circuit court held an evidentiary hearing on defendant-respondent-father’s (hereinafter defendant) motion to dismiss. The evidence on the motion indicated there had been no disruption in the harmonious relationship between defendant and his daughter (hereinafter plaintiff) because of the filing of this wrongful death action. The court so found but, nevertheless, sustained the motion to dismiss and it is obvious the ruling was on the belief that parental immunity barred this suit. Plaintiff appealed to the Missouri Court of Appeals, Southern District, and the judges of that court recommended transfer prior to opinion because the case presented a matter of statewide interest and importance. The court of appeals noted that our earlier case of Bahr v. Bahr, 478 S.W.2d 400, 402 (Mo. 1972) seemed to imply, and the plaintiff in this case argued, that the rule of parental immunity would be applied subjectively on a case-by-case basis in every case in which an unemancipated minor sued a parent and observed that the bench and bar needed further and more specific guidance as to when parental immunity will be applied or relaxed.

On the recommendation of the court of appeals and pursuant to art. 5, sec. 10, Mo.Const., as amended 1970, the appeal was transferred to this court.

I.

Defendant Harold Fugate and Verla Mae Fugate (deceased) had been married. They had one child, plaintiff Denise Fugate, born August 30, 1964. Harold and Verla Mae were divorced on December 8, 1972. The divorce decree placed the general care, custody and control of Denise, then eight years old, with the mother, subject to certain visitation and temporary custody rights in the father. Harold was ordered to pay $150 per month to Verla Mae for the support of Denise. Defendant paid the child support, substantially exercised his visitation and temporary custody rights, and the relationship between Denise and her father was very good.

Verla Mae was killed March 15, 1974, while riding in defendant’s car as a passenger, allegedly due to defendant’s negligence. After her mother’s death, Denise lived with defendant who has assumed her care and custody, and has at times lived with both sets of grandparents. Defendant had public liability insurance in effect on the car at the time of the accident.

On December 30, 1974, this wrongful death suit was filed pursuant to sec. 537.-080, RSMo 1969, for the benefit of Denise, there being no surviving spouse or other minor children of Verla Mae.

As noted supra, the defendant’s motion to dismiss on the ground that the doctrine of parental immunity prohibited the maintenance of this suit was sustained by the trial court.

II.

On this appeal plaintiff urges four points for reversal. (1) The trial court should have overruled defendant’s motion to dismiss because Missouri’s wrongful death statute abrogates the common-law doctrine of parental immunity by vesting a cause of action in minor children from the wrongful death of a parent “in every such case” that the person would have been liable if death had not ensued. (2) The trial court should have overruled defendant’s motion to dismiss because prior Missouri cases have recognized intra-family lawsuits in tort. These cases preceded Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29 (1953), which discusses the doctrine of parental immunity favorably. (3) The trial court erred in applying the general rule of parental immunity to the facts of this case. The Baker case has been modified by recent cases. In Baker the court stated that the rule in Missouri opposes any disruption of family relationships and consequently applied the parental immunity doctrine to bar a suit by a child against the parent for negligence. The modern view is that a child may sue a parent in tort if two conditions are present. First, the emancipated child may sue. Wurth v. Wurth, 322 S.W.2d 745 (Mo. banc 1959). Also, the child may maintain a negligence action against the parent if the trial court concludes after an evidentiary hearing that legal proceedings will not disrupt family harmony. Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo. banc 1960). In Bahr v. Bahr, supra, the court implied that the burden of proof is on the party attempting to rely on the doctrine. Because the trial court found that the suit would not disrupt family harmony or subvert parental control and discipline, the motion to dismiss should have been overruled. (4) Even if the trial court were deemed to have properly applied the Missouri test, this court should abolish or modify the doctrine of parental immunity.

The defendant contends on the other hand that: (1) The trial court properly sustained the motion to dismiss because it is against public policy of this state to allow an unemancipated minor to sue a living parent in tort and that while Brennecke removed the procedural bar of the parental immunity doctrine when an unemancipated child sued the parent’s estate, the doctrine is still viable if the parent is living. (2) The dismissal was proper because the evidence conclusively established that plaintiff was an unemancipated minor. Under Wurth plaintiff has the burden of proving that she is emancipated and under the evidence presented at the hearing she cannot sustain that burden. Therefore, a conclusive presumption that an unemancipated child cannot sue a living parent in tort because of public policy considerations controls. Baker v. Baker, supra. (3) The cases cited by plaintiff for the proposition that a child can maintain an action for negligence against a parent are “mavericks”, and that the rule in Missouri is that an unemancipated child cannot maintain a tort action against a living parent for mere negligence. (4) Defendant’s insurance coverage is immaterial to the issues in this lawsuit because Missouri courts have held that the insurance coverage of a party cannot be considered in determining whether the suit can be maintained. (5) Public policy dictates that the plaintiff be barred from maintaining an action for wrongful death against her father. When presented with similar facts, other jurisdictions have held that public policy considerations bar the institution of a suit against the wrongful death statutes.

III.

Plaintiff’s first point is that the Missouri wrongful death statute, sec. 537.080, KSMo 1969, the pertinent part of which reads

“Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered.
“(1) By minor children . of the deceased . ”

vests a cause of action in a minor child “in every case” that the decedent mother could have held a defendant father liable had death not ensued, and so abrogates the doctrine of parental immunity in such instances as the present case. The deceased mother could have sued her former husband (father) for injuries received in the accident and her personal representative could have sued for property damage resulting from this accident. Defendant maintains that the public policy of the State of Missouri demands that plaintiff be denied the right to enforce the cause of action; that public policy being recognized as the interest existing in the state to promote family harmony-

We must determine whether the doctrine of parental immunity operates as a procedural bar to plaintiff’s lawsuit based on this cause of action. Most of the cases in which immunity has been posed as a bar have involved suits for direct, personal injuries. Jurisdictions are divided as to the applicability of parental immunity when the suit comes under a wrongful death statute. Plaintiff is within the class of persons entitled to entertain such action under our wrongful death statute, sec. 537.080, RSMo 1969, and several jurisdictions have allowed recovery in cases of indirect injury under similar statutes where the plaintiff-beneficiary maintains a cause of action through the death of another and where the beneficiary is so related to the defendant that the beneficiary could not have maintained suit against him for damages resulting from a direct bodily injury. Several jurisdictions have refused to bar suits by children against parents where the children sue under wrongful death statutes as beneficiaries of parties who could have maintained court actions had they lived. Illustrative of this approach is Fowler v. Fowler, 242 S.C. 252, 130 S.E.2d 568 (1963). Fowler involved an action brought under a wrongful death statute by the administrator of the deceased mother’s estate against the father for the benefit of their minor children. The petition alleged that the father had negligently operated his automobile resulting in a collision in which the mother had been killed. The South Carolina legislature previously had authorized suits in tort between husband and wife. Since, if her death had not ensued, the wife could have brought an action for her injuries against her husband, an action for her death vested in the children. The court in Fowler ruled that this cause of action was not barred by the doctrine of parental immunity because the legislature had left any mention of such immunity out of its formulation of the statute. Despite the jurisdiction’s general adherence to parental immunity based upon the public policy of preserving family unity, the court interpreted the legislative intent underlying the death statute to require an exception to the doctrine’s normal applicability to tort actions.

In contrast, many jurisdictions find no legislative intent to abrogate the doctrine of parental immunity in the wrongful death context. They treat the wrongful death action like any other tort action.

Plaintiff has argued that the approach of Fowler and Minkin should be adopted in Missouri. We do not agree. While the Missouri statute, sec. 587.080, RSMo 1969, could conceivably be construed to permit a cause of action “in every such case” under Fowler, we are of the opinion that the legislature never intended the wrongful death act of 1855 (RSMo 1855, Vol. 1, p. 647) or subsequent amendments thereto to be an exception to parental immunity.

Plaintiff contends as her second and third points that even if wrongful death is not an automatic exception to the doctrine of parental immunity by virtue of its legislative origin, nevertheless, under the present test of Bahr and Brennecke, this particular suit by the minor against her father is not barred and its dismissal was error. We agree. This court stated in Brennecke and Bahr that parental immunity would not apply either if the child bringing suit was emancipated or if the maintenance of the suit would not “seriously disturb the family relations”. Defendant points out that plaintiff did not demonstrate emancipation and this is not contested.

However, at the evidentiary hearing there was a strong showing that the future relationship between plaintiff and defendant would not be disrupted by the existence of this suit and the trial judge said he would so find. It would appear therefore that the suit should have been allowed under Brennecke and Bahr. The Missouri Court of Appeals, Southern District, was aware of this and therefore recommended transfer to this court because it felt that the language of the opinion in Bahr is open to the interpretation that the applicability of the “parental immunity” doctrine must be decided in every instance on a case-by-ease basis and that further guidance was required as to when the parental-immunity doctrine will be applied or relaxed. As an alternative approach, defendant suggests that every suit in tort brought by an un-emancipated minor child against his or her living parent should be barred as offensive to the public policy protecting domestic harmony, while plaintiff posits that, in the event the Brennecke-Bahr test be deemed inadequate, the doctrine of immunity should be modified or abrogated so as to allow suits such as the present one.

The rule of parental immunity is a court-made rule. “It was formulated, not by legislative enactment propounding an expressed public policy, but by the courts who asserted their conception of what public policy was”. Comment, Tort Actions Between Members of the Family — Husband and Wife — Parent and Child, 20 Mo.L.Rev. 152, 193 (1961). Consequently, courts have a duty to criticize and reexamine the relationship of the rule to public policy and to make such modifications as appear merited. They need not await legislative correction. As Judge Finch stated in his concurring opinion in Koprivica v. Bethesda General Hospital, 410 S.W.2d 84 (Mo.1966), regarding the function of the courts with regard to the law of torts, when a “doctrine is one established by the courts, not by the legislature . . . if we ultimately should conclude that it should be changed or modified, we should so hold.” Id. 87.

The doctrine of parental immunity in all contexts is based upon and applied according to public policy. Therefore, it seems to be a court’s function and duty to deal decisively with the relation of that policy to a suit for wrongful death when such a case arises. The position of defendant, which is that suit should be barred in every case where an unemancipated child sues a parent in tort, regardless of whether the defendant is part of the family unit, does not accurately reflect the present doctrine in Missouri. In Baker v. Baker, supra, a fifteen-month-old infant girl by her next friend, her mother, brought suit against her father. She sought to recover $15,000 for personal injuries negligently inflicted on her by her father in backing the car out of the driveway.’ The defendant father was fully insured for any liability and any judgment would have been paid by the insurer. The trial court sustained the defendant’s motion to dismiss for failure to state a claim because of the bar posed by parental immunity. We affirmed the dismissal on the ground that a suit by an unemancipated minor child against her parent for mere negligence was contrary to public policy. Importantly, however, was the fact that the child and the parent sued were members of and functioned within the same family unit. Early in the opinion the court stated that this holding was consistent with the general rule barring suits in tort between parent and child, but it qualified this statement indicating that “to say a child may not sue its parent in tort is stating the rule too broadly. Many cases may be found where such suits have been permitted.” 263 S.W.2d at 30.

Whenever the courts examine public policy underlying the doctrine of parental immunity, the primary objective must be to decide the issues in the best interests of the family unit as it is that domestic establishment that is the subject of the public policy underlying parental immunity. Our society has evolved around the nucleus of the family unit. It is the family which produces and nurtures continuing generations of individuals from whom the fabric of society is formed. There are a number of circumstances which from time to time result in disharmony or destruction of family relations and on occasion the claim of an individual right appears to run contrary to the interest of the family unit. On such occasions the courts are called upon to balance conflicting interests and determine as nearly as possible for the greater good. The court has taken the position that public policy in the preservation of family harmony wherever possible justifies maintaining the doctrine of parental immunity in appropriate circumstances. As in Baker, we recognize that this general rule barring suits in tort between parent and child in the interests of family harmony is not absolute and should not be applied where the reason for the doctrine does not exist. In line with this reasoning, this court has previously recognized situations in which the doctrine will not be invoked — one, when the child is emancipated, Wurth v. Wurth, supra, and, two, where the parent-child relationship has ended by the death of the parent, Brennecke v. Kilpatrick, supra.

In Brennecke we defined a disturbance in family relations to be a disruption in the “tranquility of the domestic establishment” or a “subvert[ing] [of] parental control and discipline” in which the “family” was perceived to be a household cooperating in the care and rearing of children. In the instant case the family in its traditional sense has already been disrupted through divorce pri- or to the time this cause of action arose, and the child was not in the custody of her father, the alleged tortfeasor. Instead, a new family unit had been established which consisted of plaintiff and her mother. It was to her mother that the plaintiff looked primarily to provide the daily necessities of life and for continuity in security and affection. It was plaintiff’s mother who exercised parental control and provided discipline as needed. An action for wrongful death contains within it a suit for deprivation of this support which plaintiff had the right to expect from her mother had her mother lived. Any limitation put upon that right must be deduced solely from the prevalent concepts touching family life, including the right to custody of. and the right to control and discipline the child and the duty to support and properly care for the child. The support obligations which were placed upon the defendant did not include the day-by-day duties and rights which adhere to the parent who retains custody of a minor child. When the right of discipline and family association has been surrendered, a rule intended to preserve their integrity is not applicable. In this case, that area is the right to comfort and support from plaintiffs mother which she acquired through the changed domestic circumstances necessitated by the divorce and the duties of the mother as the custodial parent and head of the family unit of which the child was a part.

By the foregoing statements and observations, we do not intend in any way to denigrate the position or role of the noncustodial parent to the child. The instant case is one which clearly demonstrates the benefit that inures to both when a good relationship is maintained after divorce. We are also cognizant of the fact that a noncustodial parent must perform parental duties of care, discipline, etc., when the child is in that parent’s temporary custody, and that the relative rights and duties of the parties may result in a modification or denial of recovery when the injury arises out of the performance of such duties. Those matters will have to be adjudicated on a case-by-case basis.

Nevertheless, immunity from suit in tort deprives an injured party of a particular remedy and therefore should not be extended beyond the point of that which is necessary to assist and support the functioning of an existing family unit.

The court holds that where the mother and father have been divorced the parent does not have the primary, general custody of the unemancipated minor child at the time the tort occurs is not immune from suit in tort by the child. This holding modifies Bahr v. Bahr, supra, and to that extent the instant ruling should be followed.

The judgment of the circuit court is reversed and the cause is remanded for trial.

SEILER, J., HIGGINS, Special Judge, and HOUSER, Senior Judge, concur.

DONNELLY, J., concurs in result in separate concurring opinion filed.

MORGAN, C. J., and RENDLEN, J., concur in result and with separate concurring opinion of DONNELLY, J.

SIMEONE and WELLIVER, JJ., not participating because not members of the court when cause was submitted.

DONNELLY, Judge,

concurring in result.

On reflection, I think it must be recognized that the opinion in Bahr v. Bahr, 478 S.W.2d 400 (Mo.1972), is confusing. It should have explicitly held (1) that the Hewellette rule [Hewellette v. George, 68 Miss. 703, 9 So. 885] may not effectually apply until evidence is presented, and (2) that the burden is oh the defendant to demonstrate that failure to apply the Hew-ellette rule “would seriously disturb the family relations and thus be contrary to public policy.”

Having said that, I would not adopt a per se rule “that where the mother and father have been divorced the parent who does not have the primary, general custody of the unemancipated minor child at the time the tort occurs is not immune from suit in tort by the child.”

After an evidentiary hearing, the trial court found there had been no disruption in the harmonious relationship between defendant and plaintiff because of the filing of this action. In view of this, the case should not have been dismissed.

I concur in result only.

      . Flanigan, J., not sitting.

      . The Pennsylvania Supreme Court has held that an unemancipated child could sue his mother under the state wrongful death statute to recover for the death of his father. In allowing the suit, the court said that the preclusion of suits between parents and children did not apply to the facts before it since the injury to the child was indirect. Minkin v. Minkin, 336 Pa. 49, 7 A.2d 461 (1939), Comment 44 Dick.L. Rev. 143 (1940). See also McCurdy: Torts Between Parent and Child, 5 Vill.L.Rev. 521 (1960).

      . See Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610 (1950).
      The majority in Minkin v. Minkin, supra, construed a death statute similar to Fowler, but a concurring opinion in Minkin maintained that the suit should be allowed because wrongful death is more like a property right — for deprivation of support — than a tort affecting the person. Traditionally, courts have freely recognized causes of action between parent and minor child in matters of property. See, generally, 43 Harv.L.Rev. 1057; 44 Dick.L.Rev. 153; State ex rel. Festor v. Stead, 143 Mo. 248, 45 S.W. 50 (1898); Streentz v. Streentz, 106 Ariz. 86, 471 P.2d 282; Wells v. Wells, Mo.App., 48 S.W.2d 109; Briere v. Briere, 107 N.H. 432, 224 A.2d 588; Quinn v. Thigpen, 266 N.C. 720, 147 S.E.2d 191; Falco v. Pados, 444 Pa. 372, 282 A.2d 351.

      .For example, in Durham v. Durham, 227 Miss. 76, 85 So.2d 807 (1956), an unemanci-pated minor brought suit against his father for the death of his mother. The father had been negligent, resulting in an automobile collision. The wife, had she survived, could not have brought suit against her husband but, under the peculiar wording of the death statute, this posed no impediment to the child’s cause of action for wrongful death. The court disallowed the suit on the ground of parental immunity. It held that the wrongful death statute should be construed consistent with all common-law rules not explicitly abrogated.

      . In Brennecke an unemancipated minor was allowed to sue the estate of her deceased mother. She alleged that she had been injured when an automobile negligently operated by her mother, and in which she was a passenger, collided with a gravel truck. The court stated at 73: . . such immunity as a parent may have from suit by a minor child for personal tort arises from a procedural disability to sue, usually based on public policy, and not from a lack of a violated duty. This disability is not absolute and the cause of action otherwise existing may be asserted if the reasons for its denial are no longer in existence.” And at p. 70: “The rule is not an absolute one . but generally exists or is adhered to only when the court concludes that to hold otherwise would seriously disturb the family relations and thus be contrary to public policy. The immunity of the parent usually has been predicated upon the premise that to allow such an action against a parent would either disrupt the tranquility of the domestic establishment or subvert parental control and discipline.”
      This court thus took the position that the rationale or justification had disappeared with the mother’s death. No relationship still existed which immunity could protect. This holding made it clear that the applicability of immunity in any one case depended upon the particular facts and circumstances thereof. In order for immunity to apply, those facts would have to indicate that harmonious family relations would be seriously disturbed if suit were allowed or that the suit would subvert parental control and discipline.

      . This case-by-case approach was reaffirmed in Bahr. In Bahr a four-year-old girl living in the custody of her divorced mother visited her divorced father at his mother’s home! During the visit the child burned herself on a barbeque pit. She brought suit against her divorced father and his mother alleging their negligence. The trial court dismissed the action on the ground of parental immunity. This court reversed and remanded to allow the plaintiff to show either that she was emancipated and therefore immunity should not apply under Wurth v. Wurth, supra, or that under Bren-necke v. Kilpatrick, supra, the suit would not violate the justification underlying the doctrine of immunity — harmonious family relations. The court stated that it could take one of four alternative approaches: (1) abolish the parental-immunity rule generally; (2) abolish the rule in general but delineate exceptional circumstances in which it would still apply; (3) abolish the immunity but apply a standard of reasonableness “viewed in light of the parental role”; or (4) retain the Brennecke position, adhering to the immunity rule only when to hold otherwise would “seriously disturb the family relations” and thus be contrary to public policy. It opted for the last alternative, and remanded to the trial court for a factual determination of whether the policy underlying the doctrine would be offended in allowing the suit.

      . See Glover v. Glover, 44 Tenn.App. 712, 319 S.W.2d 238. As where family relationship has been dissolved, Johnson v. Myers, 2 Ill.App.3d 844, 277 N.E.2d 778, abandoned, Mahnke v. Moore, 197 Md. 61, 77 A.2d 923.

      . See, generally, Comment: The Child’s Claim for Loss of Consortium Damages: A Logical and Sympathetic Appeal, 13 San Diego L.Rev. 231 (1975). “[T]here can be little question of the reality of the loss suffered by a child deprived of the society and care of its parent.” Suter v. Leonard, 43 Cal.App.3d 744, 746, 120 Cal.Rptr. 110, 111 (1975). “Furthermore, the society, education, protection and love of a parent is necessary for the child’s welfare and development. The child’s loss of his parent’s love, society and protection deprives him of the essentials for a healthy development and this results in a real injury to the child. Protection of the child against this type of injury is equally important to the state.” Comment, supra.