Freehe v. Freehe

Opinion by: NEILL, J.

Plaintiff, Clifford Freehe, seeks compensation for personal injuries allegedly sustained due to defendant's negligent maintenance of a tractor and failure to warn plaintiff of the tractor's unsafe condition. The claim for relief would be just the normal action in tort for personal injury but for the fact that the defendant is the wife of the plaintiff, thus bringing into issue the doctrine of interspousal tort immunity.

The farm on which the accident took place is the separate property of defendant, doing business under the name of Hazel Knoblauch. The tractor involved in this accident, together with all other assets and income of the farm, were and remain the separate property of defendant. The business of the farm is carried on separately from any community business of the parties. Plaintiff has no interest in the farming operation. Neither was he employed by defendant.

The trial court granted defendant's motion for summary judgment solely on the basis of interspousal tort immunity. Plaintiff appeals.

Because the common-law doctrine of immunity is based upon the law's policy toward the personal relationship of the parties, and because the business liability of a sole proprietor is coextensive with and indistinguishable from the proprietor's "personal" liability, we will resist the temptation to treat this case as somehow involving an issue that is distinct from the general question of whether the rule of interspousal immunity should be retained. In Manion v. Pardee, 79 Wn.2d 1, 3, 482 P.2d 767 (1971), we said that "Comment or any possible reexamination of this doctrine by the court must await a proper factual setting." The case at bench presents that setting.

[. . .]

At this point, we observe as a threshold matter that no statute in this state establishes or affirms a rule precluding one spouse from suing the other for a tort committed during coverture. The rule of interspousal immunity or disability is of common-law origin, court made and court preserved. Our survey of the Washington cases shows that the reception and application of the rule has been less than enthusiastic. A rule so diligently avoided invites our critical reexamination.

Our cases have referred to the historical arguments supporting the common-law disability. One is the "supposed unity of husband and wife." [. . .] A second is a public policy of preserving peace and tranquility in the home. [. . .]

The "supposed unity" of husband and wife, which serves as the traditional basis of interspousal disability, is not a reference to the common nature or loving oneness achieved in a marriage of two free individuals. Rather, this traditional premise had reference to a situation, coming on from antiquity, in which a woman's marriage for most purposes rendered her a chattel of her husband.

It has been said, whether humorously or not, that at common law husband and wife were one person, and that person was the husband . . . [A]s to her personal and property rights, the very legal existence of the wife was regarded as suspended for the duration of the marriage, and merged into that of the husband, so that she lost the capacity to contract for herself, or to sue or be sued without joining the husband as a plaintiff or defendant. The husband acquired the right to possession and use of his wife's real and personal property, and he was entitled to all of her choses in action, provided that he "reduced them to possession" during marriage by some act by which he appropriated them to himself, such as collecting the money or obtaining judgment in a suit in his own name. In turn he became liable for the torts of his wife, committed either before or during the marriage.
[. . .] At old common law, with the husband entitled to the chose in action for his own torts and liable to himself for his wife's torts against him, the rule of interspousal disability made sense.

Things have changed. They had changed 88 years ago when the Rosencrantz court, noting the improved legal status of married women, held them as eligible as their husbands to serve on juries. Neither spouse is liable for the separate debts of the other. RCW 26.16.200. And either spouse may sue the other for invasion of separate property rights. RCW 26.16.180; Mattinson v. Mattinson, 128 Wash. 328, 222 P. 620 (1924). Recent legislation (Laws of 1972, 2d Ex. Sess., ch. 108) radically alters the relative right of the wife to manage and represent community property, rights and interests. Spouses are no longer individually liable for each other's torts unless they would be jointly liable if unmarried.

Modern realities do not comport with the traditional "supposed unity" of husband and wife. In our view, this concept of legal identity is no longer a valid premise for a rule of this interspousal disability.

A second major reason given for the disability is the notion that to allow a married person to sue his or her spouse for tort damages would be to destroy the peace and tranquility of the home. On reflection, we are convinced that this is a conclusion without basis. If a state of peace and tranquility exists between the spouses, then the situation is such that either no action will be commenced or that the spouses -- who are, after all, the best guardians of their own peace and tranquility -- will allow the action to continue only so long as their personal harmony is not jeopardized. If peace and tranquility are nonexistent or tenuous to begin with, then the law's imposition of a technical disability seems more likely to be a bone of contention than a harmonizing factor.

We have previously discussed the family tranquility argument in an analogous context [. . .] and in dicta in an interspousal disability case [. . .]. On both occasions, the argument has been rejected. For the reasons stated here and in those cases, we now expressly reject the notion that the desirability of family peace and tranquility is a valid reason for precluding a cause of action in tort against the tort-feasor spouse. [. . .]

A third reason advanced in support of maintaining the common-law rule of disability is the suggestion that the injured spouse has an adequate remedy through the criminal and divorce laws. It has been observed that neither of these alternatives actually compensates for the damage done, or provides any remedy for nonintentional (negligent) torts. Prosser, supra at 862-63. We have previously observed that while "a criminal action may be adequate to prevent future wrongs . . . it certainly affords no compensation for past injuries." [. . .] To these reflections we add the observation that limiting the injured party to a divorce or criminal action against his or her tort-feasor spouse is quite inconsistent with any policy of preserving domestic tranquility. Thus, the argument based on suggested legal alternatives simply does not withstand analysis.

It has also been argued that to permit litigation between spouses over personal torts would flood the courts with a burdensome amount of trivial matrimonial disputes. [. . .]

[T]his theoretical problem has not materialized elsewhere. Furthermore, should the courts find this possibility to be materializing, there is nothing to prevent application of established notions of "consent" or "assumption of risk" to minor annoyances associated with the ordinary frictions of wedlock.[. . .]

Respondent also suggests that another argument in favor of the disability rule is that to permit suits between spouses would encourage collusion and fraud where one or both of the spouses carries liability insurance. In Goode v. Martinis, supra at 234, we rejected this "pessimistic premise," noting that "this line of argument presupposes that courts are so ineffectual and the jury system is so imperfect that fraudulent claims cannot be distinguished from the legitimate." In the analogous case of Borst v. Borst, supra at 653, we stated:
The courts may and should take cognizance of fraud and collusion when found to exist in a particular case. However, the fact that there may be greater opportunity for fraud or collusion in one class of cases than another does not warrant courts of law in closing the door to all cases of that class. Courts must depend upon the efficacy of the judicial processes to ferret out the meritorious from the fraudulent in particular cases. If those processes prove inadequate, the problem becomes one for the legislature. Courts will not immunize tort feasors from liability in a whole class of cases because of the possibility of fraud, but will depend upon the legislature to deal with the problem as a question of public policy.
We there cited, as an example of the ability of the legislature to cope with such a problem should it arise, the enactment of host-guest statutes (RCW 46.08.080, .085, .086) in automobile personal injury cases. We conclude that this possibility is not a valid premise for the common-law disability rule.

Respondent also suggests that any change in the marital disability rule is a matter for the legislature, citing Schultz v. Christopher, supra. This argument ignores the fact that the rule is not one made or sanctioned by the legislature, but rather is one that depends for its origins and continued viability upon the common law. In these circumstances, it is proper to echo the words quoted in Borst v. Borst, supra at 657:
"Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule." [. . .]

We are cognizant of the long-standing nature of the common-law rule of interspousal tort immunity. But we find more impelling the fundamental precept that, absent express statutory provision, or compelling public policy, the law should not immunize tort-feasors or deny remedy to their victims. With this in mind, we have reviewed the stated reasons for the common-law rule, and have found all of them to be insufficient. Therefore, the rule of interspousal disability in personal injury cases is hereby abandoned. [. . .]
Reversed and remanded.