Brooks v. Robinson, No. 772S87

• Docket Nº: No. 772S87
• Citation: 259 Ind. 16, 284 N.E.2d 794
• Case Date: July 10, 1972
• Court: Supreme Court of Indiana

Page 794

284 N.E.2d 794 259 Ind. 16 Patricia L. BROOKS, Appellant,
v.
Gene ROBINSON, Appellee. No. 772S87. Supreme Court of Indiana. July 10, 1972.

[259 Ind. 17] F. Boyd Hovde, Indianapolis, for appellant; Townsend, Hovde & Townsend, Indianapolis, of counsel.

James J. Stewart, Kent O. Stewart, Indianapolis, for appellee; Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, of counsel.

ON PETITION TO TRANSFER

HUNTER, Justice.

Petitioner, Patricia L. Brooks, is before this Court on an Application for Transfer seeking review of the Appellate Court's decision in Brooks v. Robinson (1971), Ind.App., 270 N.E.2d 338. Petitioner (plaintiff below) instituted this action to recover damages for injuries sustained by her on January 6, 1964, while riding as a passenger in an automobile driven by Gene Robinson (defendant below). Brooks' original complaint was filed on July 28, 1964. On June 8, 1969, while [259 Ind. 18] the action was pending, Brooks and Robinson were married. On January 15, 1970, the trial court sustained Robinson's Motion For Summary Judgment and entered judgment thereon based upon the proposition that the doctrine of interspousal immunity barred the plaintiff's action.

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On appeal, the judgment was affirmed by the Appellate Court. See, Brooks v. Robinson, supra.

In her Application for Transfer, petitioner contends that the doctrine of interspousal immunity should not apply to the facts of this case because both the injury and the filing of the complaint occurred prior to the marriage. Petitioner's second contention is that, regardless of the factual situation, the doctrine of interspousal immunity should no longer be the law in Indiana. Inasmuch as this Court is of the opinion that the doctrine of interspousal immunity should be abolished, it is only necessary that we consider petitioner's second contention.

The common law doctrine of interspousal immunity was based upon the theory that the husband and wife were one person. In Re Estate of Pickens (1970), Ind., 263 N.E.2d 151; Barnett v. Harshbarger (1886), 105 Ind. 410, 5 N.E. 718. Also, see Prosser, Law of Torts, 859 (4th Ed. 1971). The result of this legal fiction was, of course, that all actions between husband and wife were barred. The restrictive effect of the doctrine has been modified considerably by statute. However, as this Court recognized in Pickens, the doctrine has continued to be retained in the area of tort actions.

The applicability of the doctrine of interspousal immunity to actions in tort appears to have been first recognized in Indiana in Henneger v. Lomas (1896), 145 Ind. 287, 44 N.E. 462, where the Court stated:

'As we have shown, the common-law rule that marriage extinguished all rights of action in favor of the wife against the husband, for antenuptial injuries by the husband to her person or character, was founded upon the principle of the [259 Ind. 19] unity of husband and wife, and not upon the theory that the wife was under a legal disability. This rule of the common law is in force in this state, unless it has been changed by statute. This court has held that the same has not been abrogated.' 145 Ind. at 293, 44 N.E. at 464.

The doctrine was held inapplicable to the facts in Henneger because the complaint alleged that the marriage between the parties was viodable. The Court ruled that if the marriage could be judicially declared a nullity, the wife's subsequent action for her seduction should be approached as if the marital relationship had never existed. In subsequent decisions involving actions in tort between husband and wife, Henneger was cited as authority for the proposition that the doctrine of interspousal immunity was a valid defense to such an action. See, Hanna v. Hanna (1968), 143 Ind.App. 490, 241 N.E.2d 376; Hunter v. Livingston (1955), 125 Ind.App. 422, 123 N.E.2d 912; Blickenstaff v. Blickenstaff (1929), 89 Ind.App. 529, 167 N.E. 146.

The validity of the doctrine was severely questioned by Judge Bowen in Hunter v. Livingston, supra, where he stated:

'Our courts have held that a married woman may maintain an action against her husband for injuries to her property. Crater v. Crater, 1889, 118 Ind. 521, 21 N.E. 290; Pavy v. Pavy, 1951, 121 Ind.App. 194, 98 N.E.2d 224; Atkinson v. Atkinson, 7 Cir. 1948, 167 F.2d 793. However, our courts have taken the position that the common law rule is still in force, except that the statute gives the wife the right to sue alone in cases involving her property, and that the statute is silent as to injuries to person or character, Hamm v. Romine, 1884, 98 Ind. 77; Henneger v. Lomas, supra, and, therefore, the remedy lies with the legislature, under the present status of the law in this state, with what appears to be a glaring inconsistency in that a wife is given the right to sue her husband for a broken promise involving property, and for a wrecked house belonging to her, but not for a broken arm nor a broken body. To make such a distinction renders the person of the wife in a marriage completely subjugated to the will

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of her husband, as far as civil liability is concerned, for willful and wanton injuries inflicted upon her person either before or [259 Ind. 20] during marriage, and that such injuries are of no concern or value when placed in the scales of justice alongside property rights. This seems to be inconsistent, inhumane, and contrary to the true spirit and intent of the acts passed for the emancipation of women in an enlightened civilization.' 125 Ind.App. at 428, 429, 123 N.E.2d at 915.

Despite such criticism, the doctrine was summarily applied to all actions in tort between husband and wife until this Court's decision in In Re Estate of Pickens, supra, where it was determined that the doctrine had no applicability to actions...