Flagg v. Loy

• Decision Date: 27 March 1987
• Docket Number: No. 60072,60072
• Citation: 241 Kan. 216,734 P.2d 1183
• Parties: , 55 USLW 2584 Marilyn FLAGG and Richard Coonrod, as Individuals and Marilyn Flagg, as Administratrix of the Estate of Vera Lois Coonrod, deceased, Appellants, v. Kurtis I. LOY, Administrator of the Estate of Thomas Wesley Coonrod, Appellee, and Furnal Truck Line, Inc., and Great Western Casualty, Defendants.
• Court: Kansas Supreme Court

Page 1183

734 P.2d 1183

241 Kan. 216, 55 USLW 2584

Marilyn FLAGG and Richard Coonrod, as Individuals and Marilyn Flagg, as Administratrix of the Estate of Vera Lois Coonrod, deceased, Appellants, v. Kurtis I. LOY, Administrator of the Estate of Thomas Wesley Coonrod, Appellee and Furnal Truck Line, Inc., and Great Western Casualty, Defendants.

No. 60072.

Supreme Court of Kansas.

March 27, 1987.

Syllabus by the Court

1. One spouse may maintain an action against the other for tortious personal injury occurring during the marriage; overruling Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952).

2. Children as the heirs-at-law of the deceased mother may maintain an action against the personal representative of the deceased father for the wrongful death of their mother based upon the alleged negligence of the father which resulted in the death of the mother.

Timothy A. Short, of Spigarelli, McLane & Short, Pittsburg, argued, and Fred Spigarelli, was with him on brief, for appellants.

John I. O'Connor, of White, O'Connor & Werner, P.A., Pittsburg, argued and was on the brief, for appellee.

ALLEGRUCCI, Justice:

This is a personal injury and wrongful death action brought by Marilyn Flagg and Richard Coonrod against the estate of their deceased father, Thomas Wesley Coonrod, for the death of their mother, Vera Coonrod. Plaintiffs appeal from the trial court's granting of the defendant's motion for summary judgment.

On January 15, 1985, Vera Lois Coonrod was a passenger in an automobile driven by her husband, Thomas Wesley Coonrod. There was a collision involving the Coonrod automobile and a semi-tractor/trailer truck operated by Furnal Truck Line, Inc. Thomas Wesley Coonrod died in the accident and Vera Coonrod died from her injuries on February 1, 1985. The plaintiffs sued Kurtis I. Loy, administrator of the estate of their deceased father, and Furnal Truck Line, Inc., and its insurer. Defendant Kurtis I. Loy filed a motion for summary judgment based upon the doctrine of interspousal tort immunity. The trial court ruled this action was barred by the doctrine of interspousal tort immunity and granted the motion for summary judgment. A certificate of Final Judgment, pursuant to K.S.A.1986 Supp. 60-254(b), was incorporated into the Journal Entry of Summary Judgment. This appeal followed.

The issue before the court is whether the doctrine of interspousal tort immunity should be abrogated. Before determining the merits of plaintiffs' argument for abolishing the doctrine, we should first comment on plaintiffs' argument in the alternative that an exception should be created where both spouses are deceased. Rhode Island has created such an exception. Asplin v. Amica Mutual Insurance Co., Inc., 121 R.I. 51, 394 A.2d 1353 (1978) (where one or both spouses are dead). This court has recognized an exception where the tortious act occurred prior to marriage, O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964), and where the tort was intentional, Stevens v. Stevens, 231 Kan. 726, 647 P.2d 1346 (1982). However, because of our wrongful death statute, we are prevented from doing so in this case. K.S.A. 60-1901 provides:

"If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased." (Emphasis added.)

The statute is clearly a survival statute. It creates no new cause of action for the heirs but, instead, provides that the cause of action survives if it could have been brought by the deceased had she lived. Mrs. Coonrod could not have maintained a personal injury action against the estate of her husband had she survived the accident. Therefore, absent abrogation of the doctrine of interspousal tort immunity, the plaintiffs would be barred from maintaining this action. The provisions of K.S.A. 60-1901 mandate such a result even though the traditional rationale for applying the doctrine of interspousal tort immunity is absent where one or both spouses are deceased. There is no marital harmony to preserve nor could the deceased spouses collude to defraud another defendant or an insurance carrier. This illogical result mandates that we reexamine our previous decisions and determine if this court should continue to recognize the doctrine of interspousal immunity in Kansas.

This court first recognized the doctrine of interspousal immunity in Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952). Since that time, this court has continued to recognize interspousal tort immunity. In Sink, this court cited G.S.1949, 77-109, which provided in part: "The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state." The constitutional provisions pertaining to married women (Kan. Const. art. 15, § 6), and K.S.A. 23-201 and 23-203, commonly referred to as the Married Women's Act, were found not to modify the common-law doctrine of interspousal tort immunity and the doctrine was upheld because to not do so would be "contrary to public policy and [would] tend to disrupt the marital relation." 172 Kan. at 219, 239 P.2d 933.

In O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285, Syl. p 1, this court held: "A woman may, after becoming the wife of the defendant, continue to maintain an action against her husband for an alleged tortious act" which occurred prior to the marriage. Although the holding in Sink was cited with approval, the court reasoned that a "chose in action" is personal property owned by a woman at the time of her marriage and remains her "sole and separate property." O'Grady v. Potts, 193 Kan. at 648-49, 396 P.2d 285.

In Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965), interspousal tort immunity was upheld even though a divorce action was pending when the personal injuries occurred.

In Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), this court again recognized the decision in Sink, but held it did not prevent a comparison of causal fault of both spouses in a comparative negligence case filed by both spouses against a third party tortfeasor.

This court recently affirmed the doctrine of interspousal tort immunity in Guffy v. Guffy, 230 Kan. 89, 631 P.2d 646 (1981). Justice Fromme, speaking for the majority, found "the doctrine of interspousal immunity presently existing in Kansas is vibrant and solidly based on the public policy of this State. It should not be abrogated." 230 Kan. at 97, 631 P.2d 646. A well-reasoned and comprehensive dissent was written by Justice Prager (now Chief Justice) in which Justice Herd joined.

In Stevens v. Stevens, 231 Kan. 726, 647 P.2d 1346, we recognized an exception to interspousal tort immunity for a willful and intentional tort committed by one spouse against the other. This exception was reaffirmed in Ebert v. Ebert, 232 Kan. 502, 656 P.2d 766 (1983).

The traditional reasons for retaining interspousal tort immunity are: (1) protection of family harmony and tranquility; (2) stare decisis; (3) absence of legislative action to abolish; and (4) possibility of fraud and collusion by the spouses where insurance coverage exists. These grounds, with the exception of fraud and collusion, were considered and recognized as grounds for the decisions in Sink and Guffy. We shall reexamine these grounds in light of present public policy and appellants' argument that interspousal tort immunity is an archaic doctrine which has been "orphaned by logic and reason."

Does the doctrine of interspousal tort immunity promote and protect family harmony and tranquility? We think not. The doctrine of interspousal tort immunity is a creature of common law evolving out of the legal fiction of the unity of husband and wife. The doctrine of unity was based upon the concept that, upon marriage, the wife's identity was merged into that of her husband and she was, for all legal purposes, a chattel of her husband. The wife could not sue or be sued without the joinder of her husband. By reason of our constitution (Art. 15, § 6) and the Married Women's Act, K.S.A. 23-201 and 23-203, the concept of unity of husband and wife is no longer recognized in Kansas. However, this did not prevent the majority in Guffy from justifying the continued recognition of interspousal tort immunity primarily on the premise that personal tort actions between spouses would destroy the peace and harmony of the marriage and therefore were contrary to public policy.

In Coffindaffer v. Coffindaffer, 161 W.Va. 557, 565, 244 S.E.2d 338 (1978), the West Virginia Supreme Court responded to the question of whether interspousal tort immunity promotes family harmony as follows:

"Undoubtedly family harmony is a laudable goal in this era of rising divorce rates. However, it is difficult to perceive how any law barring access to the courts for personal injuries will promote harmony. If this were a valid sociological consideration, the Legislature could orchestrate even greater harmony by abolishing the statute giving the right to divorce. Moreover, there is an obvious fallacy in this argument, as under the Married Women's Act it has long been recognized that spouses may sue each other in regard to their property rights."

In Shook v. Crabb, 281 N.W.2d 616 (Iowa 1979), the Supreme Court of Iowa, in abolishing interspousal tort immunity, commented:

"While the state has an interest in encouraging marital harmony, to deny a forum for the redress of a wrong would do little to advance the compatibility of a married couple. It is difficult to see how denying access to the legal process could be said with any certainty to encourage domestic tranquility. Interspousal suits are not barred for the vindication of a property interest, § 597.3, The Code, or...