Freehe v. Freehe

• Citation: 500 P.2d 771,81 Wn.2d 183
• Decision Date: 31 August 1972
• Docket Number: No. 42187,42187
• Parties: Clifford FREEHE, Appellant, v. Hazel Knoblauch FREEHE, doing business as Hazel Knoblauch, Respondent.
• Court: United States State Supreme Court of Washington

Page 183

81 Wn.2d 183

500 P.2d 771

Clifford FREEHE, Appellant, v. Hazel Knoblauch FREEHE, doing business as Hazel Knoblauch, Respondent.

No. 42187.

Supreme Court of Washington, En Banc.

Aug. 31, 1972.

Hammermaster & Robbins, Charles E. Robbins, Sumner, for appellant.

Merrick, Hofstedt, Schumm & Lindsey, Thomas J. Collins, James M. Lindsey, Jr., Seattle, for respondent.

NEILL, Associate Justice.

Plaintiff, Clifford Freehe, seeks compensation for personal injuries allegedly sustained due to defendant's negligent maintenance of a tractor and failure to warn plaintiff of the tractor's unsafe condition. The claim for relief would be just the normal action in tort for personal injury but for the fact that the defendant is the wife of the plaintiff, thus bringing into issue the doctrine of interspousal tort immunity.

The farm on which the accident took place is the separate property of defendant, doing business under the name of Hazel Knoblauch. The tractor involved in this accident, together with all other assets and income of the farm, were and remain the separate property of defendant. The business of the farm is carried on separately from any community business of the parties. Plaintiff has no interest in the farming operation. Neither was he employed by defendant.

The trial court granted defendant's motion for summary judgment solely on the basis of interspousal tort immunity. Plaintiff appeals.

Because the common law doctrine of immunity is based upon the law's policy toward the personal relationship of the parties, and because the business liability of a sole proprietor is coextensive with and indistinguishable from the proprietor's 'personal' liability, we will resist the temptation to treat this case as somehow involving an issue that is distinct from the general question of whether the rule of interspousal immunity should be retained. In Manion v. Pardee, 79 Wash.2d 1, 3, 482 P.2d 767, 768 (1971), we said that 'Comment or any possible reexamination of this doctrine by the Court must await a proper factual setting.' The case at bench presents that setting.

The case which apparently established the doctrine of interspousal tort immunity in Washington is Schultz v. Christopher, 65 Wash. 496, 118 P. 629 (1911). In that case the court referred to the common law notion of 'unity' of husband and wife, a notion which had been first adverted to (disapprovingly) in the case of Rosencrantz v. Territory of Washington, 2 Wash.Terr. 267, 5 P. 305 (1884). In Schultz, the court emphasized that plaintiff had Conceded her disability to sue in the absence of legislation. She relied solely upon a statute presently codified as RCW 26.16.160. On that basis this court held that the statute merely placed a husband and wife on an equal footing and that the conceded disability was equally applicable to both spouses.

On three subsequent occasions parties before this court have claimed the defense of this immunity and in each instance we have rejected the defense on varying grounds. In Johnson v. Ottomeier, 45 Wash.2d 419, 275 P.2d 723 (1954), we held the common law disability rule inapplicable against the personal representative of a deceased spouse, noting at page 424, 275 P.2d at page 725 that 'the reason for the immunity no longer exists when one spouse is dead.' In Goode v. Martinis, 58 Wash.2d 229, 391 P.2d 941 (1961), we held the disability inapplicable in an action for an intentional tort committed while the parties were legally separated but before their divorce was final, concluding that only a 'shell of the marriage' existed under the facts. Then in Manion v. Pardee, Supra, we held the disability rule inapplicable to an action for a tort committed before marriage, where the parties had become divorced during pendency of that appeal.

Throughout these cases, this court has dealt with matters of statutory construction. We shall treat this aspect of the issue in later pages. At this point, we observe as a threshold matter that no statute in this state establishers or affirms a rule precluding one spouse from suing the other for a tort committed during coverture. The rule of interspousal immunity or disability is of common law origin, court made and court preserved. Our survey of the Washington cases shows that the reception and application of the rule has been less than enthusiastic. A rule so diligently avoided invites our critical reexamination.

Our cases have referred to the historical arguments supporting the common law disability. One is the 'supposed unity of husband and wife.' Johnson v. Ottomeier, Supra; Schultz v. Christopher, Supra. A second is a public policy of preserving peace and tranquility in the home. See Goode v. Martinis, Supra; Johnson v. Ottomeier, Supra. We deal first with these two reasons.

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.

It has been said, whether humorously or not, that at common law husband and wife were one person, and that person was the husband . . . (A)s to her personal and property rights, the very legal existence of the wife was regarded as suspended for the duration of the marriage, and merged into that of the husband, so that she lost the capacity to contract for herself, or to sue or be sued without joining the husband as a plaintiff or defendant. The husband acquired the right to possession and use of his wife's real and personal property, and he was entitled to all of her choses in action, provided that he 'reduced them to possession' during marriage by some act by which he appropriated them to himself, such as collecting the money or obtaining judgment in a suit in his own name. In turn he became liable for the torts of his wife, committed either before or during the marriage.

(Footnotes omitted.) W. L. Prosser, Torts ch. 23, § 122 (4th ed. 1971) at 859--60. At old common law, with the husband entitled to the chose in action for his own torts and liable to himself for his wife's torts against him, the rule of interspousal disability made sense.

Things have changed. They had changed 88 years ago when the Rosencrantz court, noting the improved legal status of married women, held them as eligible as their husbands to serve on juries. Neither spouse is liable for the separate debts of the other. RCW 26.16.200. And either spouse may sue the other for invasion of separate property rights. RCW 26.16.180; Mattinson v. Mattinson, 128 Wash. 328, 222 P. 620 (1924). Recent legislation (Laws of 1972, 2d Ex.Sess., ch. 108) radically alters the relative right of the wife to manage and represent community property, rights and interests. Spouses are no longer individually liable for each other's torts unless they would be jointly liable if unmarried.

Modern realities do not comport with the traditional 'supposed unity' of husband and wife. In our view, this concept of legal identity is no longer a valid premise for a rule of this interspousal disability.

A second major reason given for the disability is the notion that to allow a married person to sue his or her spouse for tort damages would be to destroy the peace and tranquility of the home. On reflection, we are convinced that this is a conclusion without basis. If a state of peace and tranquility exists between the spouses, then the situation is such that either no action will be commenced or that the spouses--who are, after all, the best guardians of their own peace and tranquility--will allow the action to continue only so long as their personal harmony is not jeopardized. If peace and tranquility is nonexistent or tenuous to begin with, then the law's imposition of a technical disability seems more likely to be a bone of contention than a harmonizing factor.

We have previously discussed the family tranquility argument in an analogous context (parent-child disability: Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952)) and in dicta in an interspousal disability case (Goode v. Martinis, Supra). On both occasions, the argument has been rejected. For the reasons stated here and in those cases, we now expressly reject the notion that the desirability of family peace and tranquility is a valid reason for precluding a cause of action in tort against the tort-feasor spouse. See also, notes 37 Wash.L.Rev. 233 (1962), and 38 Wash.L.Rev. 371 (1963).

A third reason advanced in support of maintaining the common law rule of disability is the suggestion that the injured spouse has an adequate remedy through the criminal and divorce laws. It has been observed that neither of these alternatives actually compensates for the damage done, or provides any remedy for nonintentional (negligent) torts. Prosser, Supra, at pages 862--63. We have previously observed that while 'a criminal action may be adequate to prevent future wrongs . . . it certainly affords no compensation for past injuries.' Goode v. Martinis, Supra, 58 Wash.2d at page 234, 361 P.2d at page 944. To these reflections we add the observation that limiting the injured party to a divorce or criminal action against his or her tort-feasor spouse is quite inconsistent with any policy of preserving domestic tranquility. Thus, the argument based on suggested legal alternatives simply does not withstand analysis.

It has also been argued that to permit litigation between spouses over personal torts would flood the courts with a burdensome amount of trivial matrimonial disputes. As a matter of theory, this argument could be interposed against virtually all personal injury claims. Any validity to the argument would depend whether such a 'flood' materializes in practice. In Goode v. Martinis, Supra, at page 234, 361 P.2d at page 944, w...