Doiron v. Doiron

• Decision Date: 30 April 1968
• Docket Number: No. 5639,5639
• Citation: 241 A.2d 372,109 N.H. 1
• Parties: Alice O. DOIRON v. Joseph A. DOIRON d/b/a Joseph R. Doiron & Son.
• Court: New Hampshire Supreme Court

Page 372

241 A.2d 372

109 N.H. 1

Alice O. DOIRON v. Joseph A. DOIRON d/b/a Joseph R. Doiron & Son.

No. 5639.

Supreme Court of New Hampshire.

Argued Nov. 7, 1967.

Decided April 30, 1968.

King, Nixon, Christy & Tessier, Manchester (Thomas J. Tessier, Manchester, orally), for plaintiff.

Millimet, McDonough, Stahl & Branch, Manchester, and Robert A. Backus, Manchester, for defendant.

LAMPRON, Justice.

This is an action brought by a wife against her husband to recover for personal injuries sustained on May 8, 1964, on premises in Reed's Perry, as a result of her husband's negligence. Defendant filed a motion to dismiss on the ground that the parties were residents of and domiciled in Massachusetts when this action was commenced on October 26, 1965, and that the law of that State, which should determine the issue, prohibits such a cause of action by a wife against her husband.

The parties have agreed, for the purposes of this motion, that 'at the time of the accident the plaintiff wife and defendant husband, were living and domiciled in New Hampshire' and that 'at the time suit was instituted and presently the plaintiff and defendant are domiciled and residing in Massachusetts.' The Trial Court (Loughlin, J.) transferred without ruling the issue of law raised by the motion.

In New Hampshire, it is well settled law that a wife may maintain an action for tort against her husband for acts of negligence committed during coverture. Morin v. Letourneau, 102 N.H. 309, 310, 156 A.2d 131; RSA 460:2. Under Massachusetts law, however, no such action is permitted. Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637, 2 A.L.R.2d 632; Mass. Gen.Laws, Ch. 209 § 6 (Ter. ed.). This court held in Thompson v. Thompson, 105 N.H. 86, 193 A.2d 439, 96 A.L.R.2d 969, that when spouses are domiciled in New Hampshire, the wife can maintain an action in this State against her husband for a tort hwich occurred in Massachusetts. It was later decided in Johnson v. Johnson, 107 N.H. 30, 216 A.2d 781, that when the spouses are domiciled in Massachusetts, the wife, cannot maintain an action in New Hampshire against her husband for a tort inflicted on her by him in this State.

The issue before us involves the right of a wife to recover, for a tort committed in New Hampshire by her husband while they were both domiciled here, in an action commenced in this State when both are then domiciled in Massachusetts. This question has never been decided in this jurisdiction nor has any such decision elsewhere come to our attention.

This court has decided that choice-of-law decisions, such as the one with which we are concerned in this case, ought to be based on relevant choice-influencing considerations. Clark v. Clark, 107 N.H. 351, 353, 222 A.2d 205. These considerations are (1) predictability of results; (2) maintenance of reasonable orderliness and good relationship among the States in our federal system; (3) simplification of the judicial task; (4) advancement by the court of its own State's governmental interests rather than those of other States; (5) the Court's preference for what it regards as the sounder rule of law, as between the two competing ones. Clark v. Clark, supra, 354, 355, 222 A.2d 205. 'Obviously, some of them will be more relevant to some type of cases, less to other types.' Id., pp. 353, 354, 222 A.2d p. 208.

In a case involving a suit by a wife against her husband for a tort committed by him, the domicile of the parties is of great importance. Restatement (Second), Conflict of Laws, s. 390 g, comment a (Tent. Draft No. 9, 1964). As in all torts, however, the State where the conduct and injury occurred is also of considerable importance. Id., s. 379 a, comment e. In determining the relative importance of these and other relevant contacts, 'the forum will consider the issues, the character of the tort, and the relevant purposes of the tort rules of the interested States.' Id., s. 379(3).

On May 8, 1964, the day of this accident, the plaintiff and the defendant were domiciled and living as husband and wife in New Hampshire. The husband's negligent conduct took place in this State. The resulting injuries to the wife were incurred here. A cause of action in her favor was thereby created by the laws of New Hampshire. Morin v. Letourneau, 102 N.H. 309, 310, 156 A.2d 131. The wife's right of action being transitory, it followed her in whatever State she moved to. Roscoe v. Roscoe, 379 F.2d 94, 99 (C.A.D.C.1967). Consequently she could enforce this right by suit in any State where jurisdiction could be obtained over the husband unless the particular State had a prohibition against the institution of such an action, as does Massachusetts. See Parsons & Sons Lumber Co. v. Southwick, 101 N.H. 258, 259, 139 A.2d 883.

Turning to the prohibition of suits between husband and wife under the laws of Massachusetts, the 'more fundamental reason' for such prohibition, that is, 'because of the marital relationship no cause of action ever came into existence' ('Callow v. Thomas, 322 Mass. 550, 552, 78 N.E.2d 637, 638, 2 A.L.R.2d 632) is not present under the facts of this case. Morin v. Letourneau, 102 N.H. 309, 313, 156 A.2d 131. This leaves 'the disability of one spouse to sue the other during coverture' as the only basis to bar the wife from bringing her action in Massachusetts. Callow v. Thomas, supra; Lubowitz v. Taines, 293 Mass. [109 N.H. 4] 39, 198 N.E. 320; Mass.Gen. Laws, Ch. 209 § 6 (Ter. ed.). See Giles v. Giles, 279 Mass. 284, 181 N.E. 176; 293 Mass. 495, 200 N.E. 378.

The reasons usually advanced in support of the latter doctrine are the preservation of domestic harmony and the avoidance of collusive suits. Thompson v. Thompson, 105 N.H. 86, 88, 193 A.2d 439, 96 A.L.R.2d 969; Prosser, Law of Torts, s. 116, p. 883. However, New Hampshire has permitted interspousal suits for over a century. Seaver v. Adams, 66 N.H. 142, 143, 19 A. 776; Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A.1916B, 907; Laws 1846, 327:4. This surely evidences a lack of fear by our Legislature and by our courts that permitting such suits would engender collusion or discord among the families within its...