Price v. Price , 718 S.W.2d 65 ( 1986 )

718 S.W.2d 65 (1986)

Kimberly Parmenter PRICE, Appellant,
v.
Duane PRICE, Appellee.

No. 04-85-00579-CV.

Court of Appeals of Texas, San Antonio.

September 17, 1986. Rehearing Denied October 14, 1986.

Marvin B. Zimmerman, San Antonio, for appellant.

Timothy Patton, San Antonio, for appellee.

Before CADENA, C.J., and BUTTS and CANTU, JJ.

OPINION

CADENA, Chief Justice.

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.

BUTTS, Justice, dissenting opinion.

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.^[1] 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:

[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.

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
KAN      1964      X                O'Grady v. Potts,       Intentional tort     1982
396 P.2d 285              claims allowed
ME       1973      X         X      Moulton v. Moulton,     Fully abrogated      1980
309 A.2d 224
MICH     1965      X                Mosier 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             claims allowed
N.C.     1931                1      Shirley v. Ayers,       Fully abrogated         1920
158 S.E. 840              Reaffirmed           1976
PA.      1981      X                Hack v. Hack,           Fully abrogated      19812
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
259 A.2d 786              claims allowed

1 Statutory changes affecting married women's rights and
tortfeasor's liability not changed by subsequent marriage to
victim
2 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. v. Perez   238 A.2d 341       Rule acknowledged and
sustained
District of   1910       Thompson v. Thompson        218 U.S. 611       Rule acknowledged and
Columbia                                                                  sustained
Florida       1979       Raisen v. Raisen            379 So. 2d 352      Rule acknowledged and
sustained
Georgia       1936       Eddleman v. Eddleman        189 S.E. 833       Rule acknowledged 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 to
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. MacDonald      412 A.2d 71        Rule fully abrogated
Maryland      1983       Boblitz v. Boblitz          462 A.2d 506       Rule abrogated as to
vehicular torts
Massachusetts 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 Hampshire 1915       Gilm. v. Gilman            95 A. 657          Rule fully abrogated
New Jersey    1978       Merenoff v. Merenoff        388 A.2d 951       Rule fully abrogated
New Mexico    1975       Maestas v. Overton          531 P.2d 947       Rule fully abrogated
New York      1974       State Farm Mut. Auto Ins.   324 N.E.2d 137     Rule fully abrogated
Co. v. Westlake
North Carolina 1920      Crowell v. Crowell          105 S.E. 206       Rule fully abrogated
North Dakota   1932      Fitzmaurice v. Fitzmaurice  242 N.W. 526       Rule fully abrogated
Ohio           1985      Shearer v. Shearer          480 N.E.2d 388     Rule fully abrogated
Oklahoma       1938      Courtney v. Courtney        87 P.2d 660        Rule fully abrogated
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. Arnica            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 Carolina 1932      Pardue v. Pardue            166 S.E. 101       Rule fully abrogated
South Dakota   1941      Scotvold v. Scotvold        298 N.W. 266       Rule fully abrogated
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. Thompson         183 S.E.2d 200     Rule abrogated as to
vehicular torts
Washington    1972       Freehe v. Freehe            500 P.2d 771       Rule fully abrogated
West Virginia 1978       Coffindaffer v.             244 S.E.2d 338     Rule fully abrogated
Coffindaffer
Wisconsin     1926       Wait v. Pierce              209 N.W. 475       Rule fully abrogated
Wyoming       1943       McKinney v. McKinney        135 P.2d 940       Rule acknowledged and
sustained

NOTES

[1] We are indebted to appellant for the attached Appendix A and Appendix B.