Davis v. Davis

• Decision Date: 03 October 1983
• Citation: 657 S.W.2d 753
• Parties: Marjorie Ann DAVIS, Plaintiff-Appellant, v. Wayne DAVIS, Defendant-Appellee. 657 S.W.2d 753
• Court: Tennessee Supreme Court

Page 753

657 S.W.2d 753

Marjorie Ann DAVIS, Plaintiff-Appellant, v. Wayne DAVIS, Defendant-Appellee.

657 S.W.2d 753

Supreme Court of Tennessee at Nashville.

Oct. 3, 1983.

Royce Taylor, Murfreesboro, for plaintiff-appellant.

William C. Moody, Nashville, for defendant-appellee.

OPINION

BROCK, Justice.

The issue before the Court concerns the continued validity of the doctrine of interspousal immunity; specifically, whether that common law doctrine should be allowed to preclude a negligence action by one spouse against the other.

On June 5, 1979, the plaintiff-appellant, Marjorie Ann Davis, was riding as a passenger in a motorized fishing boat which was being operated by her husband, the defendant-appellee, Wayne Davis. At approximately 2:00 p.m. Mr. Davis set a course across Percy Priest Lake, intent on returning to the landing where he and his wife had earlier launched the boat. While proceeding across the lake the boat struck a bridge support and the impact resulted in serious injury to Mrs. Davis.

The appellant alleged that she sustained three fractures in one leg and cuts and bruises on her head, arms and upper body. She further alleged that the accident occurred because her husband had "failed to exercise that degree of care that an ordinary, prudent person would have exercised under the same, or similar, circumstances." Simply stated, she attributes her injuries to the negligence of her husband and attempts to recover damages therefor.

When faced with a motion for summary judgment which asserted interspousal immunity as a bar, the trial court dismissed Mrs. Davis' lawsuit. The Court of Appeals observed the rule of stare decisis and affirmed the lower court's dismissal.

The formalistic legal foundations that originally lent support to the doctrine of interspousal immunity have long ago crumbled away. It is irrefutable that, although the doctrine does not discriminate between a husband and wife in denying one a cause of action against the other, its early existence can be traced to a concept that only imposed legal disability on the wife; that concept is unity. ¹

The Washington Supreme Court has aptly noted:

"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." Freehe v. Freehe, 81 Wash.2d 183, 186, 500 P.2d 771, 773 (1972).

In McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), this Court said:

"It has been held that neither husband nor wife can maintain an action against the other for wrongs committed during coverture. This holding rests in part upon their unity by virtue of the marriage relation, which would preclude the one from suing the other at law, and in part upon the respective rights and duties involved in that relation." (Emphasis added.) 77 S.W. at 665.

This litany, that interspousal immunity is shielded from critical analysis because unity is an incident of marriage, has been invoked without fail as a justification for preventing one spouse from suing the other.

In Tobin v. Gelrich, 162 Tenn. 96, 97, 34 S.W.2d 1058 (1931), a wife sued her husband for injuries she sustained due to his alleged negligent operation of the automobile in which they were riding. The defendant's demurrer was sustained and an appeal was commenced by plaintiff. This Court affirmed, saying:

"By the common law, neither the husband nor the wife could maintain an action against the other for wrong committed during coverture. The rule rested upon the nature of the relation, the unity of interest of husband and wife in each other's respective rights and duties and was not limited to actions for willful wrongs, such as assault and battery, but embraced alike all torts." (Emphasis added.) Id.

In Prince v. Prince, 205 Tenn. 451, 326 S.W.2d 908 (1959), this Court articulated a subtle distinction between the prohibition on interspousal tort litigation as it has developed in this State and the manner in which it is applied elsewhere. In most states, even though a cause of action arises when one spouse acts tortiously against the other, the immunity defeats the cause of action. Past decisions of this Court make clear that "the right of action never existed." Prince v. Prince, supra, 326 S.W.2d at 910, quoting from Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71 (1926). The Court explained:

"Under this view, based primarily on the common-law doctrine of the unity of husband and wife, there is never any cause of action; it is not simply a matter of granting an immunity as is elsewhere the doctrine." 326 S.W.2d at 910.

In Gordon v. Pollard, 207 Tenn. 45, 336 S.W.2d 25 (1960), a woman brought suit against her former husband for damages arising out of an automobile accident. The complaint alleged that she was riding as a passenger and guest in an automobile being operated by Johnny Pollard, her husband at the time of the accident, which automobile was owned and maintained by the defendants, Mrs. Lorence Pollard and C.P. Pollard, his mother and father, as a family purpose car. The complaint contained allegations of common law and statutory negligence.

The defendants countered by pointing out that at the time of the accident Johnny Pollard was lawfully married to the plaintiff, Doris Gordon.

The plaintiff's theory in Gordon v. Pollard, supra, rested on the fact that her marriage had been annulled and was, therefore, void ab initio. The plaintiff was only seventeen and the marriage license had apparently been obtained by misrepresentation or fraud. This Court rejected plaintiff's appeal, however, saying:

"We think that the annulment of a voidable marriage may well restore certain existing property and statutory rights to a spouse, but does not create in a spouse, husband or wife, a right to maintain an action against the other for a tort which occurred in Tennessee during the period the status of the parties was that of husband and wife.

"Upon the solemnization and consummation of the marriage of the plaintiff and defendant, each was subject to all of the privileges and all of the disabilities of coverture, and these privileges and disabilities continued until the marriage was avoid by the plaintiff.

* * *

"To give an annulment decree such an effect would be to substitute legal theory for practicality. The retroactive effect of annulment is not without limits, prescribed by policy and justice." 336 S.W.2d at 27.

Policy may have been served in Gordon v. Pollard, supra, but justice surely was not. In our minds, legal theory was paid homage at the expense of pragmatism and reason. The plaintiff was suing under the family purpose doctrine so any liability would have been the responsibility of Johnny Pollard's parents. Because she rashly entered into marriage at the tender age of seventeen, a union that was subsequently annulled, the plaintiff was denied access to the court "because there [was] no civil right to be redressed." 336 S.W.2d at 26. We think the decision in Gordon v. Pollard, supra, is illustrative of the irrational and unjust results that may come from judicial adherence to once utilitarian, but now outmoded legal tenets.

In Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621 (1965), the plaintiff brought suit against his step-father under T.C.A., Sec. 20-607 (presently T.C.A., Sec. 20-5-106), for damages for the wrongful death of his mother, whom his step-father intentionally shot and killed. This Court affirmed the decision of the trial court in sustaining defendant's demurrer, and held:

"It is quite plain then that the right of the plaintiff in this case to recover against his stepfather is derivative only as coming to him through the right of his mother to have prosecuted a claim for damages against her husband. Since the law of this State does not permit one spouse to sue the other for tort during coverture, she had no right of action which could pass to her next of kin." 391 S.W.2d at 624.

Recently, when presented with the opportunity of affirming Hance v. Haun, supra, we chose instead to expressly overrule it. The case of Luna v. Clayton, 655 S.W.2d 893 (Tenn.1983), was factually identical to Hance v. Haun, supra, and yet we allowed the wrongful death action to proceed, stating:

"This Court recognizes that courts may have previously fashioned a rule of immunity from wrongdoing, having adopted a posture at an earlier date in response to what appeared to be desirable then as a matter of policy; yet when it later appears to be unsound within a given context, especially when the reasons upon which the immunity is based no longer exist, it remains within the domain of the judiciary to reject the applicability of such a rule." 655 S.W.2d at 897.

We limited our holding in Luna v. Clayton, supra, to the facts presented therein, saying:

"Whether the reasons underpinning the doctrine of interspousal immunity are valid and viable within other contexts must await future consideration." 655 S.W.2d at 897.

Nevertheless, our exposition in Luna citing the present status of interspousal immunity in each of our 49 sister states reveals a decided trend away from the doctrine.

In all of the cases previously discussed in this opinion, unity is either expressly or impliedly cited as the theoretical underpinning of interspousal immunity. Curiously enough, in a decision rendered by this Court construing whether the Married Women's Emancipation Act abrogated interspousal immunity, it was held that the legislature intended to abolish unity but not marital immunity. That holding, in and of itself, is not objectionable.

The Married Women's Emancipation Act, T.C.A., Sec. 36-601 (Ch. 26, Acts of 1913), removed the disabilities of coverture from married women. In Lillienkamp v. Rippetoe, 133 Tenn....