Heino v. Harper

• Decision Date: 02 August 1988
• Citation: 759 P.2d 253,306 Or. 347
• Parties: Dorothy M. HEINO, Petitioner on Review, v. Roy L. HARPER, Defendant, Arno Heino, Respondent on Review. TC A8404-02592, CA A37137, SC S33273.
• Court: Oregon Supreme Court

Page 253

759 P.2d 253

306 Or. 347

Dorothy M. HEINO, Petitioner on Review, v. Roy L. HARPER, Defendant, Arno Heino, Respondent on Review.

TC A8404-02592, CA A37137, SC S33273.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Jan. 21, 1987.

Decided Aug. 2, 1988.

[306 Or. 348] Charles S. Tauman, Portland, argued the cause on behalf of petitioner on review. With him on the petition was Bennett, Hartman, Tauman & Reynolds, Portland.

Duane Vergeer, Portland, argued the cause on behalf of respondent on review. The responses were filed by Thomas Sauberli and Vergeer, Roehr & Sweek, Portland.

[306 Or. 349]

GILLETTE, Justice

We are asked in this case to reconsider the rule of law in Oregon that a person is immune from liability for negligent torts committed against his or her spouse. This court first announced the rule for this state as a matter of common law in Smith v. Smith, 205 Or. 286, 287 P.2d 572 (1955); see also Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955), and later followed the rule in Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); see also Moser v. Hampton, 67 Or.App. 716, 679 P.2d 1379, aff'd by an equally divided court 298 Or. 171, 690 P.2d 505 (1984). Upon further consideration, however, we now agree with the overwhelming number of jurisdictions which have concluded that the public policy rationale traditionally asserted in favor of a doctrine of interspousal immunity for negligent torts does not support the rule. ¹ Accordingly,

we hold that the common-[306 Or. 350] rule of interspousal immunity is no longer available in this state to bar negligence actions between spouses

The facts, as alleged in plaintiff's complaint, present a typical case of interspousal negligence. On May 5, 1982, plaintiff Dorothy Heino (wife) was riding as a passenger in an automobile driven by her husband, defendant Arno Heino (husband). At an intersection in north Portland, husband turned left into the path of an oncoming automobile driven by defendant Harper. The resulting collision injured wife. Wife [306 Or. 351] filed a complaint alleging, inter alia, that husband was negligent in failing to keep a proper lookout, in failing to keep his automobile under proper control, and in failing to yield the right-of-way. ² In his answer, husband asserted the defense of interspousal immunity. Based on that defense, he filed a motion for summary judgment. The trial court allowed the motion and entered final judgment in husband's favor. The Court of Appeals affirmed, citing Moser v. Hampton, supra. Heino v. Harper, 81 Or.App. 106, 723 P.2d 1082 (1986) (per curiam). We reverse.

We approach this case by first briefly discussing the common-law origins of the Smith rule; then we examine its application in the Oregon decisions, after which we extract, examine and analyze each of the public policy considerations that have been expounded for and against the common-law rule. Finally, we state our own analysis that we believe results in a different rule of responsibility for interspousal negligence in Oregon.

HISTORY OF COMMON-LAW INTERSPOUSAL IMMUNITY FROM TORT

This court first was called upon to declare whether the rule of interspousal immunity for negligent torts existed in Oregon in Smith v. Smith, supra. In approaching the problem, [306 Or. 352] the court said little about the English common-law antecedents of the doctrine, stating only:

"No judicial decisions need be cited for the proposition that at early common law neither spouse could maintain [an] action against the other for either a personal or a property tort, whether it was committed before or during marriage. The common-law rule of non-liability has been universally recognized. See Prosser on Torts, pp 898 and 899; and McCurdy, Torts Between Persons in Domestic Relation, 43 Harv L Rev 1031, et seq; Brandt v. Keller, 413 Ill. 503, 109 N.E.2d 729 [ (1952) ] * * *."

Id. at 288. While this statement was accurate as far as it went, it failed fully to acknowledge how utterly different were the times and circumstances that saw the creation of the rule from those that prevailed when the Smith court chose to recognize the rule in Oregon.

The most comprehensive study of the doctrine of interspousal immunity in tort is found in Professor McCurdy's article cited by the court in Smith: Torts Between Persons

in Domestic Relation, 43 Harv L Rev 1030 (1930). We turn to that article for a brief overview of the origins of the doctrine in England

"[At common law a] husband was entitled to his wife's services and earnings whether performed in the home or elsewhere, for himself or another; and the husband was under a duty to support. A married woman had no capacity to sue or be sued alone in her own name, but wherever she had a substantive capacity, or was substantively the holder of a right, or subject to a duty, suit must be brought in the name of husband and wife, and judgment was enforced in favor of the husband or against both husband and wife. In the case of torts committed against a married woman, her legal personality was substantively recognized, and insofar as the tortious act caused injury to a legally recognized interest of the woman herself, it was a chose in action of the woman's [although, as already noted, the husband was entitled to its use and any action for its enforcement had to be brought in his name as well.] * * * [I]nsofar as the injury was to the husband alone, either by depriving him of some interest, such as services and earnings, or by increasing the burden of his duties, such as support, it was a chose in action of the husband's. And the converse is likewise true. A married woman substantively had capacity to commit most torts, but her liability was in a sense suspended [306 Or. 353] during coverture, and the husband subjected. If she committed a tort during marriage, or committed a tort or contracted a debt before marriage, although the duty was substantively hers, suit must be brought against husband and wife, and judgment could be enforced against property of either * * *."

Id. at 1032-33 (footnotes omitted).

The effect of these and related disabilities and reciprocal obligations with respect to the property of either spouse had the cumulative effect at common law of making it impossible for one spouse to be civilly liable to the other for an act that, but for the relationship, would have been an actionable tort. Id. at 1033. As McCurdy explained it,

"[w]here the [tortious] act occurred before marriage, a cause of action arose. If the man was the tortfeasor, the woman's right would be a chose in action, which upon marriage the man would have the right to reduce to possession [in himself]. This union in one person of the right-duty relation discharges the duty as a matter of substance, and there is besides the procedural difficulty that the husband would be both plaintiff and defendant. If the woman was the tortfeasor, the man's right would be a chose in action against the woman, whose duty upon marriage would devolve upon the husband as a derivative duty, which would be discharged by union of the right and duty in the same person; and there is the same procedural difficulty. Where the act occurs during coverture, the matter is complicated by other factors[, but the same procedural difficulties would exist throughout, i.e., any such action would feature the husband as both plaintiff and defendant--an unacceptable anomaly] * * *."

Id. As the foregoing suggests, it is difficult to state with absolute certainty whether the real impediment to interspousal tort actions at common law was substantive, procedural, or both. It nevertheless is clear that, whatever label is affixed to it, the rule arose out of views of the rights and duties of the parties to a marriage as that institution existed several hundred years ago in a society that viewed the relationship far differently than it is viewed today. To take but one example, a legal system that generally did not even recognize divorce would have no reason to consider the implications of dissolution of marriage without fault.

We think that it is equally clear that to refer to this state of the law, as did the court in Smith v. Smith, supra, as [306 Or. 354] the "common-law rule of non-liability" is an inaccurate oversimplification. The rule did not deny the responsibility of one spouse to make reparation for harm done to the other; it merely regarded the incidents of the

relationship of marriage as the answer to the wrong. Where the husband was the wrongdoer, his duty to support the wife already existed; where the wrongdoer was the wife, any action against her had to include her husband as a defendant, and so the claim merged. It remained for the enactment of various Married Women's Property Acts in the nineteenth century to provide the impetus for doing away with the bars to most kinds of litigation between spouses. See generally Smith v. Smith, supra, 205 Or. at 290-95, 287 P.2d 572. Those acts and the other related legislation that proliferated in the last half of the nineteenth and the first part of the twentieth centuries were a reflection of the vastly changed social circumstances since the old rule came into existence. However, and in spite of those changes, which led finally even to the right to vote for women, the old rule of interspousal immunity for negligent torts was found still to be alive when, in 1955, this court first faced the issue. We turn now to a specific discussion of the Oregon experience

OREGON CASES DEALING WITH INTERSPOUSAL IMMUNITY FROM TORT

As noted, the question of the existence of interspousal immunity as a part of the common law of Oregon came relatively late to this court. When it came, in 1955, it came in tandem with a case involving an intentional tort committed by one spouse against another. The two cases gave this court an opportunity to announce both the existence of the rule of interspousal immunity for tort and the limitations on the scope of that...