Flogel v. Flogel

• Decision Date: 09 March 1965
• Docket Number: No. 51592,51592
• Citation: 133 N.W.2d 907,257 Iowa 547
• Parties: Florence S. FLOGEL, Appellant, v. Urban H. FLOGEL, Appellee.
• Court: Iowa Supreme Court

Page 907

133 N.W.2d 907

257 Iowa 547

Florence S. FLOGEL, Appellant, v. Urban H. FLOGEL, Appellee.

No. 51592.

Supreme Court of Iowa.

March 9, 1965.

William T. Connery, Dubuque, for appellant.

Kenline, Reynolds, Roedell & Breitbach, Dubuque, for appellee.

MOORE, Justice.

Plaintiff is defendant's wife and appeals from a judgment holding she cannot recover damages against her husband in the Iowa court for injuries she sustained by reason of negligent operation of his automobile in Wisconsin.

Plaintiff's petition alleges the parties are residents of Kowa and that she was severely injured on April 5, 1962 while riding in an automobile negligently operated by her husband in Grand County, Wisconsin. She asks damages, including loss of earnings as a factory worker.

Defendant's motion to dismiss, which the trial court sustained, is limited to the ground that plaintiff may not maintain such an action against her husband in this state.

Plaintiff contends (1) the Wisconsin Law, which she alleges permits a wife to sue her husband for tort, applies here and (2) interspousal immunity has been or should be abrogated in Iowa.

I. We believe our opinion in Fabricius v. Horgen, Iowa, 132 N.W.2d 410 (filed January 12, 1965), is decisive of plaintiff's first contention. There plaintiff as administrator brought action in Iowa for loss caused by decedent's death in an automobile accident in Minnesota. The Minnesota statutory law required such an action be prosecuted by a court appointed trustee and any recovery be distributed to the next of kin by the trustee. The question presented was whether the law of the place of the wrong or of the forum was to be applied as to the proper party to bring the action, for whom, and the measure of damages.

After reviewing our earlier cases, several recent rulings on the subject in other jurisdictions and calling attention to the trend toward an improvement of the rule as noted in Restatement of Conflict of Laws, Second, Tentative Draft No. 9, section 379, we say: 'We conclude that the better and more modern rule is that the determination as to the existence of actionable negligence is according to the law of the jurisdiction where the claimed tort occurred, in this instance, Minnesota. Questions as to who may maintain an action in Iowa, for whom, and the measure of damage are determined by the law of the forum in this instance, Iowa. When an Iowa administrator brings an action in the Iowa courts for the benefit of Iowa people and against an Iowa defendant his standing, his methods of procedure and his measure of damage are according to Iowa law. To use the modern term he has made his 'choice of law' and must abide thereby.' (Loc. cit. p. 416, 132 N.W.2d)

The exact question present here is new to this court but has been decided in several other jurisdiction. The rule seems firmly established that if the law of the forum prohibiting the maintenance of a tort action between spouses is regarded by the court of the forum as forming an essential part of the public policy which will be contravened by the enforcement of a cause of action created by the law of the state where the tort occurred, the cause of action will not be enforced at the forum, although its existence elsewhere may be conceded. In other words, the family law of the forum is applied.

In Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, plaintiff sued her husband in their home state of New York for injuries sustained by her in Connecticut as a result of her husband's negligent operation of his automobile. Connecticut permitted a wife to sue her husband for tort but New York at that time did not. The court affirmed dismissal of her petition and at page 599, 3 N.E.2d states: 'The law of the forum determines the jurisdiction of the courts, the capacity of parties to sue or to be sued, the remedies which are available to suitors and the procedure of the courts. Where a party seeks in this state enforcement of a cause of action created by foreign law, he can avail himself only of the remedies provided by our law, and is subject to the general limitations which are part of our law.'

In Koplik v. C. P. Trucking Corp., 27 N.J. 1, 141 A.2d 34, plaintiff's action included a defendant whom she married during the pendency of the cause. The accident took place in New York where a statute (New York Domestic Law, McKinney's Consol.Laws, c. 14, section 57) had been passed specifically permitting a suit by a husband or wife against the other for personal injuries. New Jersey law forbids such an action. The court ordered plaintiff's action against her newly acquired husband dismissed. At page 40, 141 A.2d, the court states: 'As a final word on the subject we hold the view that even where an actual conflict of laws problem is directly presented, it is sensible and logical to have disabilities to sue and immunities from suit arising from the family relationship determined by reference to the law of the state of the family domicile when the suit is brought in that state. Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining.'

The Wisconsin court in Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814, when faced with the problem of interspousal liability for tort and the determination of which law controlled, overruled six prior decisions and held the law of the forum applied. Plaintiff brought suit against her husband in Wisconsin for injuries sustained in California. Under the Wisconsin law a wife may sue her husband in tort. At that time under California law she could not. After analyzing its prior cases, those from other jurisdictions and several law review articles the court states: 'After most careful deliberation, it is our considered judgment that this court should adopt the rule that, whenever the courts of this state are confronted with a conflict of laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile.' (Loc. cit. p. 818, 95 N.W.2d)

The New Hampshire court in deciding the problem in Thompson v. Thompson, 105 N.H. 86, 193 A.2d 439, 441, 96 A.L.R.2d 969, states:

'We have no doubt that the law of the jurisdiction where a tort is committed should continue to determine the applicable standard of care. * * * We are persuaded however, that since the parties are both domiciled as husband and wife in New Hampshire, the law of this jurisdiction, rather than of Massachusetts, should determine whether the plaintiff may maintain her action against her husband. * * * We consider that the incidents of the status of marriage of parties domiciled here should not be determined by the law of another jurisdiction merely because they chance to be involved in an accident there.' Prior New Hampshire cases to the contrary are overruled.

For like holdings see, Poling v. Poling, 116 W.Va. 187, 179 S.E. 604; Kircher v. Kircher, 288 Mich. 669, 286 N.W. 120; Kyle v. Kyle, 210 Minn. 204, 297 N.W. 744; Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218.

We hold the Iowa law, being that of the domicile and forum, governs plaintiff's right to maintain this action.

II. This brings us to plaintiff's second contention, that a wife may maintain an action in this state against her husband for tort.

It is well settled, and is not disputed by plaintiff, that under the common law a wife does not have the right to maintain such an action. 27 Am.Jur., Husband and Wife, section 589; 41 C.J.S. Husband and Wife § 396a.

Little, if any, attempt has been made to change the common law rule in the absence of a statute. However, the widespread enactment of married women's statutes has resulted in a great amount of litigation involving the rule of interspousal disability. Most courts in construing such statutes adhere to the common law rule unless the statute clearly make a change. The many cases on the subject, including those listed under the majority and minority holdings, are annotated in 43 A.L.R.2d 632. At page 651 the writer states: 'In adhering to or rejecting the common-law rule that one spouse is disabled by virtue of the spousal relationship from bringing a personal injury action against the other, the courts have stated various reasons for their holdings, but the difference in result can, in almost every instance, the traced to a different interpretation of the applicable married women's acts.'

Citation and discussion of specific interpretations in other jurisdictions would be of little help. Our married women's statutes have been construed by us. We are committed to the majority holding that unless the common law rule of spousal immunity is clearly abrogated by statute it applies in Iowa.

In Peters v. Peters, 42 Iowa 182, plaintiff sued her husband in tort for assaults and batteries committed at various times upon her prior to July 26, 1875. The opinion at page 183 states: 'If this action can be maintained, it is because of the...