Guffy, By and through Reeves v. Guffy

• Decision Date: 17 July 1981
• Docket Number: No. 52360,52360
• Citation: 631 P.2d 646,230 Kan. 89
• Parties: Ethel GUFFY, an Incapacitated Person, By and Through Lawrence REEVES, her Conservator and Next Friend, Appellant, v. George GUFFY, Appellee.
• Court: Kansas Supreme Court

Page 646

631 P.2d 646

230 Kan. 89

Ethel GUFFY, an Incapacitated Person, By and Through

Lawrence REEVES, her Conservator and Next Friend, Appellant, v. George GUFFY, Appellee.

No. 52360.

Supreme Court of Kansas.

July 17, 1981.

Syllabus by the Court

Neither spouse may maintain an action against the other for tortious personal injury occurring during marriage. Following Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952).

Donald W. Vasos, of Scott, Daily & Vasos, Kansas City, argued the cause, and Dianna K. Stapleton, Kansas City, was with him on the briefs for appellant.

Wayne T. Stratton, of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, argued the cause, and Mark A. Buck, Topeka, was with him on the brief for appellee.

Kay Y. Rute, of Carpenter & Carpenter, Chartered, Topeka, and Carol Duffy McDowell, of Levy & McDowell, Topeka, were on the amicus curiae brief for American Civil Liberties Union.

Justice B. King, of Fisher, Patterson, Sayler & Smith, Topeka, was on the amicus curiae brief for Kansas Association of Defense Counsel.

FROMME, Justice:

This appeal presents the issue of whether this court should continue to recognize interspousal tort immunity in Kansas, which immunity was first recognized by this court in 1952. See Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952).

The present case arose from a one-car accident in Jackson County, Kansas. The accident occurred on December 28, 1977. George Guffy drove his automobile off the road and into a culvert. His wife, Ethel Guffy, and three other women passengers received severe injuries. We are concerned in this action with a husband's liability, if any, for causing his wife's injuries. The wife received severe brain and kidney damage plus several fractured ribs. The injuries to her brain caused permanent loss of ability to express thoughts and to understand speech. As a result of Ethel Guffy's incapacity, a conservator was appointed to look after her property and preserve her rights in action. The conservator, Lawrence Reeves, then brought the present action in tort against the husband, George Guffy, alleging negligence on his part.

At all times since the accident Ethel Guffy has received continuous in-patient medical treatment at various hospitals and when not in a hospital, she has resided in a skilled nursing home facility. The conservator claims damages for Ethel Guffy's personal injuries in the sum of $100,000.00. The conservator points out that the husband George Guffy was insured against liability under a policy of motor vehicle liability insurance with policy limits up to $100,000.00 per person and $300,000.00 per accident.

The trial court sustained a motion for summary judgment in favor of the husband and against the conservator. The decision was solidly based on the doctrine of interspousal immunity as first announced by this court in the Sink case. Appellant concedes that the doctrine of interspousal immunity in Kansas must be abrogated if the judgment below is to be reversed and the case remanded for trial. Separate actions were also brought by the three other passengers for amounts totaling $535,000.00. The actions are pending in the trial court but they are of no present concern to this court.

We have been favored with four excellent briefs, one by the plaintiff, one by the defendant, one by the American Civil Liberties Union as amicus curiae, and one by the Kansas Association of Defense Counsel as amicus curiae. The briefs by the plaintiff and by the American Civil Liberties Union urge abrogation of the immunity. The briefs by the defendant and by the Kansas Association of Defense Counsel urge this court to adhere to the doctrine of interspousal immunity.

Depending on which brief you consult, the doctrine of interspousal immunity either is archaic and retreating into oblivion or it is vibrant and solidly based on the public policy of this State.

In Kansas the doctrine has been considered in light of our Constitution and the Kansas Married Women's Act. Article 15, § 6 of the Constitution of the State of Kansas provides:

"The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart for the husband; and shall also provide for their equal rights in the possession of their children."

As to property owned by the parties at the time of the marriage, K.S.A.1980 Supp. 23-201 (a) provides:

"The property, real and personal, which any person in this state may own at the time of his or her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to him or her by descent, devise or bequest, or by gift from any person except his or her spouse, shall remain his or her sole and separate property, notwithstanding the marriage, and not be subject to the disposal of his or her spouse or liable for the spouse's debts."

As to property acquired by the parties during the marriage, subsection (b) of that statute provides:

"Property, other than property described in subsection (a) or property excluded by a written agreement by the parties, acquired by either spouse after marriage and before commencement of an action for divorce, separate maintenance, or annulment, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy or tenancy in common, shall be marital property. Each spouse has a common ownership in marital property which vests not later than the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment, the extent of the vested interest to be determined and finalized by the court pursuant to K.S.A.1978 Supp. 60-1610, and any amendments thereto."

K.S.A.1980 Supp. 23-203 provides:

"A person may, while married, sue and be sued in the same manner as if he or she were unmarried."

In Harrington v. Lowe, 73 Kan. 1, 18, 84 P. 570 (1906), in referring to Art. 15, §§ 6, 9, it is said:

"These constitutional provisions themselves irretrievably broke down the common-law theory of marital unity, destroyed the notion of feminine subjection to baronial authority, threw off the restraints of coverture, and installed the modern doctrine of the equality of man and wife before the law."

In 1952 in the case of Sink v. Sink, 172 Kan. 217, 239 P.2d 933, this court for the first time held:

"Neither spouse may maintain an action in tort for damages against the other." Syl.

In the Sink case this court considered the constitutional provisions for married women as well as the statutory provisions which authorize a married woman to sue and be sued in the same manner as if she were unmarried. In adopting interspousal immunity Chief Justice Harvey, who authored the opinion, cited many cases from other states which had embraced interspousal immunity and stated:

"The reason normally given by the courts for such refusal (to abrogate immunity) is that it would be contrary to public policy and tend to disrupt the marital relation. We think the reasoning sound." 172 Kan. at 219, 239 P.2d 933.

Following Sink this court has continued to recognize and apply interspousal immunity in all cases coming before it.

In O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964), the holding in Sink was approved. However, the court held that a woman could continue to maintain an action against a man whom she later married after the action accrued. The court reasoned that since the cause accrued before the marriage it was a personal property right held before marriage and could be retained and prosecuted after the marriage.

In Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965), a divorce action was pending between the husband and wife when the personal injuries were inflicted. This court held that neither spouse could maintain an action in tort for personal injuries against the other so long as the marriage relationship continued. In the Fisher v. Toler opinion, the cases on the subject were reviewed again and the doctrine was applied. No cause of action by the wife was permitted.

In Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), this court recognized the law of Sink but held that interspousal immunity from torts does not prevent a determination of the percentages of causal fault of both the husband and the wife in a comparative negligence case when an action is filed on behalf of both husband and wife against a third party tortfeasor.

The foregoing is a brief summary of the law on the subject of interspousal immunity as it appears in the case law of Kansas. Now we turn to the arguments presented by the parties for and against change.

The appellant asserts that the overwhelming weight of current judicial authority favors abolition of immunity. An exhaustive annotation on the modern status of interspousal tort immunity in personal injury and wrongful death actions appears in 92 A.L.R.3d 901-959. We will not list the cases either from the states which retain immunity or from those which have abrogated it. However, we do note that there are five states that permit actions between spouses in motor vehicle cases only. There are six states which permit actions between spouses when based on an intentional tort. If these two categories are considered separately, the remaining states are about evenly divided.

After studying the cases from other states, we conclude the decisions are based upon the decisional law, the statutory law and the public policy of each respective state. As such, the cases are not persuasive for the outcome of each case has been dictated by entirely different constitutional and statutory law. For instance, at least three states have interspousal immunity dictated by statute. 92 A.L.R.3d 901, § 5. Some states are community property states in which damages for personal injuries to a spouse become community property. In those states, in the absence of...