Opinion
No. 04-85-00579-CV.
September 17, 1986. Rehearing Denied October 14, 1986.
Appeal from the 73rd District Court, Bexar County, Carol R. Haberman, J.
Marvin B. Zimmerman, San Antonio, for appellant.
Timothy Patton, San Antonio, for appellee.
Before CADENA, C.J., and BUTTS and CANTU, JJ.
OPINION
Plaintiff, Kimberly Parmenter Price, appeals from a summary judgment denying her recovery from her husband, Duane Price, for personal injuries suffered by her prior to her marriage to defendant as a result of defendant's negligence. We reluctantly affirm.
Generally, the doctrine of interspousal immunity bars recovery for personal injuries suffered by one spouse as the result of the negligence of the other spouse. Bounds v. Caudle, 560 S.W.2d 925 (Texas 1977); Nickerson Matson v. Nickerson, 65 Tex. 281 (1886). While our Supreme Court in Bounds held the doctrine inapplicable in cases of intentional tort, it is clear that it adopted, as did the Nickerson court, the theory that the immunity doctrine was based on a public policy aimed at the preservation of marital peace and harmony. 560 S.W.2d at 927. Although neither courts nor commentators have satisfactorily explained how denying relief to the injured spouse will promote harmony, we are constrained to follow the unambiguous, if indefensible, precedent set by Nickerson and Bounds.
The judgment of the trial court is affirmed.
APPENDIX A
JURISDICTIONS RECOGNIZING INTERSPOUSAL IMMUNITY DURING MARRIAGE BUT HOLDING IT DOES NOT APPLY TO PREMARITAL TORTS
SEPARATE WILL NOT PROPERTY DISRUPT CURRENT STATUS OF RIGHTS MARITAL IMMUNITY FOR ACTS ALLOWED HARMONY DURING MARRIAGE
__________________________________________________________________________ CAL 1959 X Foote v. Foote, Fully abrogated 1962 _______________ 339 P.2d 188 __________________________________________________________________________ DEL 1976 X Chen v. Liao, Sustained _______________ 420 F. Supp. 472 __________________________________________________________________________ KAN 1964 X O'Grady v. Potts, Intentional 1982 _________________ tort claims 396 P.2d 285 allowed __________________________________________________________________________ ME 1973 X X Moulton v. Moulton, Fully abrogated 1980 ___________________ 309 A.2d 224 __________________________________________________________________________ MICH 1965 X Moiser v. Carney, Fully abrogated 1971 _________________ 138 N.W.2d 343 __________________________________________________________________________ MO 1955 X X Hamilton v. Fulkerson, Sustained ______________________ 285 S.W.2d 642 __________________________________________________________________________ NEV 1973 X Pearce v. Boberg, Vehicle tort 1974 _________________ 510 P.2d 1358 __________________________________________________________________________ N.C. 1931 Shirley v. Ayers, Fully abrogated 1920 _________________ Reaffirmed 1976 158 S.E. 840 __________________________________________________________________________ PA. 1981 X Hack v. Hack, Fully abrogated 1981 _____________ 433 A.2d 859 __________________________________________________________________________ TENN. 1978 X Childress v. Childress, Fully abrogated 1983 ______________________ 569 S.W.2d 816 __________________________________________________________________________ VT. 1969 X Juaire v. Juaire, Vehicle tort 1973 _________________ claims allowed 259 A.2d 786 __________________________________________________________________________
Statutory changes affecting married women's rights and tortfeasor's liability not changed by subsequent marriage to victim.
Court also fully abrogated immunity in same case and discounted theories of "unity," family harmony, prevention of collusion and avoidance of trivial claims.
In addition, Maryland abrogated interspousal immunity as to motor vehicle accidents in a 198 case involving a premarital car wreck after carefully analyzing the views of every other jurisdiction in the United States. See Boblitz v. Boblitz, 462 A.2d 506 (Md. 1983).
APPENDIX B
JURISDICTIONS AND DECISIONS ON INTERSPOUSAL IMMUNITY
Alabama 1931 Penton v. Penton 135 So. 481 Rule fully abrogated Alaska 1963 Cramer v. Cramer 379 P.2d 95 Rule fully abrogated Arizona 1982 Fernandez v. Romo 646 P.2d 878 Rule abrogated for vehicular torts Arkansas 1957 Leach v. Leach 300 S.W.2d 15 Rule fully abrogated California 1962 Klein v. Klein 376 P.2d 70 Rule fully abrogated Colorado 1935 Rains v. Rains 46 P.2d 740 Rule fully abrogated Connecticut 1914 Brown v. Brown 89 A. 889 Rule fully abrogated Delaware 1968 Short Line, Inc. 238 A.2d 341 Rule acknowledged v. Perez and sustained Florida 1979 Raisen v. Raisen 379 So.2d 352 Rule acknowledged and sustained Georgia 1936 Eddleman v. 189 S.E. 833 Rule acknowledged Eddleman and sustained Hawaii 1958 Tugaeff v. Tugaeff 42 Haw. 455 Rule acknowledged and sustained Idaho 1949 Lorang v. Hays 209 P.2d 733 Rule abrogated as to intentional torts Idaho 1975 Rogers v. 539 P.2d 566 Rule abrogated as Yellowstone Park Co. vehicular torts Illinois 1960 Heckendorn v. 166 N.E.2d 571 Rule of immunity First Nat'l Bank imposed by statute Indiana 1972 Brooks v. Robinson 284 N.E.2d 794 Rule fully abrogated Iowa 1979 Shook v. Crabb 281 N.W.2d 616 Rule abrogated for all personal injury actions Kansas 1982 Stevens v. Stevens 647 P.2d 1346 Rule abrogated as to intentional torts Kentucky 1953 Brown v. Gosser 262 S.W.2d 480 Rule fully abrogated Louisiana 1965 Smith v. Southern 174 So.2d 122 Because of the Farm Bureau competing effect of two statutes, (Article 2315 and LSA-RS 9:291) has a cause of action but no remedy to enforce it Maine 1980 MacDonald v. 412 A.2d 71 Rule fully abrogated MacDonald Maryland 1983 Boblitz v. Boblitz 462 A.2d 506 Rule abrogated as to vehicular torts Massachusett 1976 Lewis v. Lewis 351 N.E.2d 526 Rule abrogated as to vehicular torts
Michigan 1971 Hosko v. Hosko 187 N.W.2d 236 Rule fully abrogated Minnesota 1969 Beaudette v. Frana 173 N.W.2d 416 Rule fully abrogated prospectively Mississippi 1924 Austin v. Austin 100 So. 591 Rule acknowledged and sustained Missouri 1915 Rogers v. Rogers 177 S.W. 382 Rule acknowledged and sustained Montana 1932 Conley v. Conley 15 P.2d 922 Rule acknowledged and sustained Nebraska 1979 Imig v. March 279 N.W.2d 382 Rule fully abrogated Nevada 1974 Rupert v. Stienne 528 P.2d 1013 Rule abrogated as to vehicular torts New 1915 Gilman v. Gilman 95 A. 657 Rule fully abrogated Hampshire New Jersey 1978 Merenoff v. 388 A.2d 951 Rule fully abrogated Merenoff New Mexico 1975 Maestas v. Overton 531 P.2d 947 Rule fully abrogated New York 1974 State Farm Mut. 324 N.E.2d 137 Rule fully abrogated Auto Ins. Co. v. Westlake North 1920 Crowell v. Crowell 105 S.E. 206 Rule fully abrogated Carolina North Dakota 1932 Fitzmaurice v. 242 N.W. 526 Rule fully abrogated Fitzmaurice Ohio 1985 Shearer v. Shearer 480 N.E.2d 388 Rule fully abrogated Oklahoma 1938 Courtney v. 87 P.2d 660 Rule fully abrogated Courtney Oregon 1955 Apitz v. Dames 287 P.2d 585 Rule abrogated as to intentional torts Pennsylvania 1981 Hack v. Hack 433 A.2d 859 Rule fully abrogated Rhode Island 1953 Asplin v. Amica 394 A.2d 1353 Rule abrogated where Mut. Ins. Co. death of either spouse intervenes between tortious act and commencement of suit Rhode Island 1978 Digby v. Digby 388 A.2d 1 Rule abrogated as to vehicular torts South 1932 Pardue v. Pardue 166 S.E. 101 Rule fully abrogated Carolina South Dakota 1941 Scotvold v. 298 N.W. 266 Rule fully abrogated Scotvold Tennessee 1983 Davis v. Davis 657 S.W.2d 753 Rule fully abrogated Texas 1977 Bounds v. Caudle 560 S.W.2d 925 Rule abrogated as to intentional torts Utah 1980 Stoker v. Stoker 616 P.2d 590 Rule fully abrogated Vermont 1973 Richard v. Richard 300 A.2d 637 Rule abrogated as to vehicular torts Virginia 1971 Surratt v. 183 S.E.2d 200 Rule abrogated as to Thompson vehicular torts Washington 1972 Freehe v. Freehe 500 P.2d 771 Rule fully abrogated West 1978 Coffindaffer v. 244 S.E.2d 338 Rule fully abrogated Virginia Coffindaffer Wisconsin 1926 Wait v. Pierce 209 N.W. 475 Rule fully abrogated Wyoming 1943 McKinney v. 135 P.2d 940 Rule acknowledged Mckinney and sustained
I respectfully dissent.
This is an appeal from a summary judgment. Plaintiff Kimberly Parmenter Price sued the driver of a truck, together with his employer, Pool Well Servicing Co., and Duane Price, the driver of the motorcycle on which she was a passenger. Kimberly suffered injuries in a collision between the truck and the motorcycle. She alleged negligent acts of each driver caused her injuries. The claim against the driver and the company ended with an agreed judgment, and the claim against Duane Price was severed. Defendant Duane moved for summary judgment based upon the doctrine of interspousal immunity. The trial court granted the motion.
The summary judgment evidence reflects that on July 17, 1983, the date of the collision, Kimberly and Duane were "living together" but not married. On December 24, 1983, the couple married. It is without question that the cause of action accrued six months before the marriage.
The doctrine of interspousal tort immunity is a common law concept derived from the legal fiction that the husband and wife become one person in law. Married women could not sue or be sued without joinder of their husbands. The wife's personal and property rights as well as her legal existence were considered suspended during the marriage (coverture). The husband acquired all his wife's choses in action and could assert them in his own name. He became liable for the torts of his wife. This concept necessarily made it impossible for one spouse to maintain an action against the other. Bounds v. Caudle, 560 S.W.2d 925, 926 (Tex. 1977); see, Comment, Intrafamily Immunity, 20 BAYLOR L.REV. 27 (1967).
TEX.REV.CIV.STAT.ANN. art. 1 (Vernon 1969) provided that the common law of England when not inconsistent with the Texas laws and Constitution would be the rule of decision. Amended in 1985, the law remains virtually the same in TEX. CODES ANN., Civil Practice Remedies § 5.001 (Vernon 1986), except that the term "those portions of the common law of England" is used. It is noteworthy that Texas is a community property state with recognition of the Spanish law also. Under Spanish law the marriage was a species of partnership in which each might own and control a separate estate as well as a common interest in a community estate. SPEER, LAW OF MARITAL RIGHTS IN TEXAS, §§ 90, 91, 92 (4th ed. 1961). As Speer noted, this system is opposed to the common law principle that marriage completed a merger of the women's individuality into that of her husband's with consequential inability to own or control separate property. It was Speer's theory that the framers of the Texas Constitution never intended that our marital laws take the common law turn as pronounced in the nineteenth century.
Statutory law defining the marital relationship in Texas has undergone major revisions since 1967. TEX.REV.CIV.STAT.ANN. art. 4615 was replaced by TEX.FAM. CODE ANN. § 5.01(a)(3) (Vernon 1975). It provides that a wife's recovery for personal injuries other than for loss of earning capacity is part of her separate estate. Id.; See §§. 4.03, 4.04. The wife has the sole management, control and disposition of her separate estate. Id. at § 5.21. TEX.CONST. art. I, § 3a. adopted in 1972, provides for sexual "equality under the law." These changes invalidate the common law rationale for the fictional unity of the husband and wife as one legal entity. See Bounds v. Caudle, supra at 927.
The primary reason employed by courts for not permitting interspousal suits is public policy (to prevent marital disharmony). Nickerson Matson v. Nickerson, 65 Tex. 281 (1886) was the leading Texas case in this now changing area of law. Although the court deferred to the common law tradition of "one unity" in law, the case really rested upon public policy grounds. Nickerson set the standard for Texas courts and gave us the judicial doctrine of interspousal tort immunity, the rule which denied one spouse a right of action against the other spouse. In Sykes v. Speer, 112 S.W. 422 (Tex.Civ.App. — 1908), rev'd on other grounds, 102 Tex. 451, 119 S.W. 86 (1909), the court wrote that a judgment awarding the wife damages for personal injuries was void on its face since it showed that the injuries complained of were committed during the marital relationship. Accord, Gowin v. Gowin, 292 S.W. 211 (Tex.Comm'n App. 1927). It was stated in Latiolais v. Latiolais, 361 S.W.2d 252 (Tex.Civ.App. — Beaumont 1962, writ ref'd n.r.e.) that:
Quite generally, one of the reasons why a husband or wife cannot bring suit for a personal tort against the other, during coverture at least, is that to do so would disturb and tend to disrupt the marriage and family relations, which it is the public policy of the state to protect and maintain inviolable.Id. at 253. But see, Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1965) (Rule still applied where cause of action accrued during marriage but suit filed after divorce.)
The Supreme Court in Bounds v. Caudle, supra, partially overruled Nickerson, thereby allowing for the first time in Texas an action in tort for personal injury committed upon one spouse by the other during the marriage. The limitation placed on this kind of action was that the tort must be one of intentional personal injury, the rationale being that the peace and tranquility of the home had already been disrupted. Acknowledging that the interspousal tort immunity doctrine has been severely criticized in recent years and that many other states no longer recognize its viability, the court abolished the rule to the extent that it would bar all claims for willful or intentional torts. Id. at 927. The decision left Texas with one-half of the original rule. Now a spousal claim based on a negligent act of the other spouse during marriage would still be barred.
Reversing the decision of the court of civil appeals, Robertson v. McKnight, 591 S.W.2d 639 (Tex.Civ.App. — Tyler 1979), in Robertson v. McKnight, 609 S.W.2d 534 (Tex. 1981), the Supreme Court wrote:
The court of civil appeals reasoned that the Texas law of interspousal tort immunity had to be applied because the New Mexico law violated Texas policy. Although the policies of Texas and New Mexico differ as to interspousal immunity, that does not mean that the New Mexico rule is so contrary to our public policy that our courts will refuse to enforce it. We have stated that we will only refuse to enforce a foreign law which violates good morals, natural justice, or it prejudicial to the general interests of our own citizens. (citations omitted)
While Texas does not permit spouses to recover from each other for negligently inflicted injuries, a rule which does permit such a suit does not violate good morals or natural justice. We note that a large number of states do permit such suits. (Emphasis added)Id. at 537. The court noted that the rule was not created to punish persons for being Texas domiciliaries, but to protect domestic tranquility and conform with the marital property laws of our state. Robertson suggested two strong points: Even though Texas clings to the immunity doctrine in spousal negligence suits, the Supreme Court looks with favor at the abolishment of the rule in other states. Further the rule was fashioned only to supplement what the Texas courts envisioned the marital property laws to be in 1886.
At least 29 states have now abrogated the interspousal tort immunity doctrine, and several others have curtailed its application. A comprehensive 1980 list is also contained in Renfrow v. Gojohn, 600 S.W.2d 77, 80-82 (Mo.App. 1980). A recent abolishioner was Ohio. See Shearer v. Shearer, 18 Ohio St.3d 94, 480 N.E.2d 388, 393 (1985). Ohio had earlier partially limited the application of the doctrine by permitting spousal suits for intentional injuries; Ohio spouses likewise could sue their mates for property damages, in contract, and for criminal injuries. Texas at the present time permits all these other spousal actions. In abrogating the doctrine, the Ohio court stated:
We are indebted to appellant for the attached Appendix A and Appendix B.
[T]he preservation of marital harmony is better served by allowing the negligent spouse, who in this day and age has more likely than not purchased liability insurance to compensate those whom he injures, to provide for his injured spouse, than by denying compensation for the spouse's suffering because of fear for the harmony of the marital unit.Id. 480 N.E.2d at 393.
The plaintiff-wife in this case contends on appeal the doctrine was wrongfully applied to deny her redress for her alleged injuries. It is suggested that the logic in Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985) be applied in this case. In Whitworth, the Supreme court declared the Texas Automobile Guest Statute, TEX.REV.CIV.STAT.ANN. art. 6701b (Vernon 1977) unconstitutional under the rational relationship test, that is, that the classifications drawn by the statute are not "rationally related to a legitimate state interest." However, in the present case the law is a judicially created one.
While we may agree with this statement by the Pennsylvania Supreme Court in Hack v. Hack, 495 Pa. 300, 433 A.2d 859, 860-61 (1981), "A tortfeasor's immunity from liability because of his marital relationship with the injured party cannot be sustained on the basis of law, logic or public policy," this court will refrain from ruling on the whole doctrine of interspousal tort immunity as it applies in Texas to negligent acts of a spouse when the cause of action accrues during the marriage relationship. Rather we address the limited question of the application of the doctrine only to the negligent acts of a spouse occurring before marriage.
The alleged injuries to the wife occurred six months before her marriage to one of the tortfeasors. When the couple merely "lived together" there was no bar to the woman bringing suit for tortiously inflicted injuries against her "boyfriend." Why should this right to sue disappear after marriage? Her separate property rights were vested in her before the marriage.
The present provisions of the Family Code, and Texas Constitution and the partial abrogation of the immunity doctrine in Bounds v. Caudle, lead to the conclusion that marriage should not require the wife to give up any pre-existing tort claim against her husband. To hold otherwise defies logic, for this would mean that public policy encourages the status of "living together" rather than that of marriage and family life. To hold otherwise penalizes the injured party by exacting a forbearance to bring suit and to seek redress for a negligent injury.
I therefore would hold that the doctrine of interspousal tort immunity does not apply as a bar to a suit where the cause of action based on negligent acts of the other spouse arises before the marriage.
For these reasons I dissent.