Hanna v. Hanna

• Decision Date: 08 November 1968
• Docket Number: No. 2,No. 1267A108,1267A108,2
• Citation: 143 Ind.App. 490,241 N.E.2d 376
• Parties: Robert Leland HANNA, Appellant, v. Helen M. HANNA, Appellee
• Court: Indiana Appellate Court

Page 376

241 N.E.2d 376

143 Ind.App. 490

Robert Leland HANNA, Appellant, v. Helen M. HANNA, Appellee.

No. 1267A108.

Appellate Court of Indiana, Division No. 2.

Nov. 8, 1968.

Stanley H. Smith, Robinson, Smith & Wiles, Indianapolis, William O. Schreckengast, Beech Grove, for appellant.

Howard DeTrude, Jr., John T. Hume, III, Indianapolis, for appellee, Kightlinger, Young, Gray & Hudson, Smith & Jones, Indianapolis, of counsel.

SMITH, Judge.

This controversy involves the sole question of whether one spouse may sue another spouse for negligent tort under the laws of the State of Indiana.

Appellant's injuries arose as a result of his wife's (appellee herein) negligence in attempting to maneuver her vehicle into a parking space; this operation was directed by appellant who was standing on a sidewalk behind his wife's vehicle. Appellant motioned for appellee to move forward, but appellee placed her gear selection lever in the wrong position and overly accelerated, thereby causing her vehicle to suddenly reverse, whereupon it jumped the curb, pinning appellant between the rear bumper and a tree.

Appellant's complaint alleged that his wife, appellee, was negligent in failing to have and acquire sufficient knowledge of the instruments of her new vehicle affecting forward and rear motion of said vehicle so as to properly control her vehicle and also negligent in failing to apply her brakes in time or with sufficient force to prevent the impact and subsequent injury.

In response to the appellant's original complaint, the appellee filed a motion for summary judgment with an affidavit in support thereof. Appellant's motion for new trial urged as the sole issue and argument abrogation of the doctrine of interspousal immunity from negligent tort.

The doctrine of interspousal immunity for negligent tort is part of the common law, and, as such became Indiana law upon the enactment of Burns' Ind. Stat., Sec. 1--101, which reads as follows:

'Law of state.--The law governing this state is declared to be:

'First. The Constitution of the United States and of this state.

'Second. All statutes of general assembly of the state in force, and not inconsistent with such constitutions.

'Third. All statutes of the United States, in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.

'Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth), and which are of the general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.'

(Emphasis supplied.)

This court believes that the trial court was correct in sustaining appellee's motion for summary judgment. Our affirmance of this result is founded upon the sound reasoning of our courts first enunciated and subsequently adopted in this jurisdiction without interruption since 1885 in that Indiana adheres to the common law theory and, thus, does not allow an individual to sue his spouse in an action resulting from a negligent tort. Our Supreme Court in Barnett v. Harshbarger, Administrator (1885), 105 Ind. 410, 5 N.E. 718, provided the...