Burns v. Burns

• Decision Date: 20 September 1974
• Docket Number: No. 11549--PR,11549--PR
• Citation: 526 P.2d 717,111 Ariz. 178
• Parties: Virgil David BURNS, Appellant, v. Beverly J. BURNS, Appellee.
• Court: Arizona Supreme Court

Page 717

526 P.2d 717

111 Ariz. 178

Virgil David BURNS, Appellant, v. Beverly J. BURNS, Appellee.

No. 11549--PR.

Supreme Court of Arizona, In Banc.

Sept. 20, 1974.

Miller, Pitt & Feldman, P.C., by Barry N. Akin, Tucson, for appellant.

Lesher & Scruggs, P.C., by Robert Lesher, Tucson, for appellee.

CAMERON, Vice Chief Justice.

This is a petition for review of an opinion and decision of the Court of Appeals, Division Two, 21 Ariz.App. 337, 519 P.2d 190 (1974), which reversed an order of the Superior Court of Pima County granting summary judgment in favor of the defendant-appellee Beverly J. Burns on the ground that the suit against her was barred by the doctrine of interspousal tort immunity.

We consider only one question on review, and that is whether a divorced spouse may, after a divorce, sue his former spouse for a negligent tort committed during the marriage.

The facts necessary for a determination of the question before us are quoted in part from the opinion of the Court of Appeals as follows. 'On May 27, 1972, appellant, while a passenger in an automobile driven by appellee, was seriously injuried in an automobile accident caused by appellee's negligence. Although married at the time of the accident, apparently that were not happy as they had separated one month before and appellee had consulted an attorney about a divorce. The accident did not restore connubial bliss and on September 1, 1972, they were divorced. Appellee remarried three weeks after the divorce. Appellant filed suit against appellee on October 17, 1972, to recover damages for his injuries sustained prior to divorce.' 21 Ariz.App. at 338, 519 P.2d at 191. The trial court granted summary judgment in favor of defendant, and plaintiff appealed, urging that the doctrine of interspousal tort immunity should not apply after the parties are divorced. After an exhaustive analysis of the history and theory of the doctrine of interspousal tort immunity the Court of Appeals held that after a divorce a spouse may maintain an action against his former spouse for a negligent tort and that such cause of action arises upon the divorce. Appellee timely petitioned this court for review, and we granted the petition.

In Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968) this court re-affirmed that Arizona followed the doctrine of interspousal tort immunity. Later, in Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971), we partially abrogated the doctrine and held that a divorced spouse could sue her former spouse for an intentional tort committed during the marriage. In so holding we wrote:

'* * * As recently as 1968 the Arizona Supreme Court observed in Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968), 'Arizona has adhered to the common law position that interspousal tort suits are not permitted.' 103 Ariz. p. 563, 447 P.2d p. 255. However, an intentional tort inflicted by one spouse on another so clearly destroys the concept of unity that the basis for the doctrine is lost.

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'We pause briefly to point out the fact that in a community property state such as ours a complete abrogation of interspousal tort immunity is fraught with many problems. One which comes to mind immediately is our Arizona Rule that damage for personal injuries to a spouse are community property. Fox Tucson Theatres Corporation v. Lindsay, 47 Ariz. 388, 56 P.2d 183 (1936). Our sister state of California abrogated the interspousal tort immunity rule one after the legislature had made damages for personal injuries the separate property of the injured person. Self v. Self, 58 Cal.2d 683, 26 Cal.Rptr. 97, 376 P.2d 65 (1962); Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962). The dissent in Klein, supra, makes sense with his argument that this is a matter much better handled by legislative action on a broad front covering all affected areas of substantive law.' 107 Ariz. at 267--268, 485 P.2d at 1157--1158.

Our holding in Windauer, supra, however, was carefully limited to the facts of that case, a case of an intentional as opposed to a negligent tort.

More recently, in Huebner v. Deuchle, 109 Ariz. 549, 514 P.2d 470 (1973) we held that since the doctrine of interspousal tort immunity would not have permitted an action by a wife against her husband for her injuries sustained during the marriage, the wife's estate could not maintain an action against the husband under our wrongful death statute, § 12--611 A.R.S. In again declining to abrogate interspousal tort immunity we wrote:

'At the common law there could be no such thing as a tort obligation between husband and wife, and in no event could there be a suit by the one against the other to enforce it. 1 Harper and James, Law of Torts, § 8.10. The common law, so far as it is not repugnant to the Constitution of the United States, the constitution or laws of this state, or established customs of the people of this state, was adopted by the Legislature and is 'the rule of decision in all courts of this state.' A.R.S. § 1--201. While we recognize that there are courts which have enlarged their wrongful death acts by judicial decision to include interspousal suits, we think that the abolishment of immunity from suit should be predicated only upon clear and unequivocal legislative language. Cf. Saunders v. Hill (Del.) 202 A.2d 807 (1964).' 109 Ariz. at 550, 514 P.2d at 471.

The Court of Appeals, in holding as it did, reasoned that 'the facts of the (instant) case Sub judice, are more akin to Windauer v. O'Connor, supra, and can be decided without violence to Schwartz.' 21 Ariz.App. at 337, 519 P.2d at 194. The court wrote:

'* * * Appellee claims that Windauer is distinguishable because the tort was intentional. We do not believe any distinction can be made between an intentional...