Hosko v. Hosko

• Decision Date: 04 December 1969
• Docket Number: No. 1,Docket No. 6193,1
• Parties: Alice HOSKO, as guardian for Eleanor Hosko, a mental incompetent, Plaintiff-Appellee, v. Steve HOSKO, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 317

174 N.W.2d 317

20 Mich.App. 416

Alice HOSKO, as guardian for Eleanor Hosko, a mental incompetent, Plaintiff-Appellee, v. Steve HOSKO, Defendant-Appellant.

Docket No. 6193.

Court of Appeals of Michigan, Division No. 1.

Dec. 4, 1969.

Released for Publication Feb. 25, 1970.

David J. Cooper, Garan, Lucow & Miller, Detroit, for appellant.

William H. Goodman, Detroit, for appellee.

Before LESINSKI, CJ., and GILLIS and DANHOF, JJ.

GILLIS, Judge.

On July 6, 1965, plaintiff,* while a passenger in a car driven by her husband, defendant herein, was injured in an automobile accident. As a result of the accident, plaintiff suffered brain damage and was subsequently declared a mental incompetent by the Wayne county probate court. Suit was commenced on plaintiff's behalf by her legal guardian. It was alleged that the accident occurred as a result of defendant's gross negligence.

At the time of the accident, plaintiff and defendant were husband and wife. They remain married. Defendant filed a motion to dismiss asserting that plaintiff had failed to state a claim for the reason that interspousal tort immunity precluded recovery.

This appeal is taken, upon leave granted, from an order of the Wayne county circuit court denying defendant's motion for summary judgment.

The most recent case before our Supreme Court in which the question of interspousal tort immunity arose was Mosier v. Carney (1965), 376 Mich. 532, 138 N.W.2d 343. After an exhaustive reconsideration of the doctrine of interspousal tort immunity, Mr. Justice Souris in an opinion signed by 3 other members of the Court ¹ concluded:

'We this day hold: (1) that a suit may be maintained predicated upon injuries to one spouse during marriage arising out of an allegedly wrongful act of the martial partner, when the allegedly wrongful act resulted in termination of the marriage by death; (2) that a suit commenced before marriage of the parties thereto may be maintained by one spouse against the other for an alleged antenuptia tort.' Mosier v. Carney, Supra, p. 566, 138 N.W.2d p. 355.

Defendant contends that in this case, unlike the situation in Mosier v. Carney, Supra, the allegedly wrongful act has not resulted in the termination of the marriage by death. Since this case does not fall squarely within Mr. Justice Souris' pronouncement that 'a suit may be maintained * * * when the allegedly wrongful act resulted in termination of the marriage by death,' it is argued that interspousal immunity bars plaintiff's claim. We agree.

In Kircher v. Kircher (1939), 288 Mich. 669, 671, 286 N.W. 120, it was broadly declared that interspousal tort suits contravene the public policy of this State. Three earlier decisions had shaped that policy, establishing as a general rule the doctrine of interspousal tort immunity. See Bandfield v. Bendfield (1898), 117 Mich. 80, 75 N.W. 287, 40 L.R.A. 757; Harvey v. Harvey (1927), 239 Mich. 142, 214 N.W. 305; Riser v. Riser (1927), 240 Mich. 402, 215 N.W. 290.

In Mosier, Mr. Justice Souris seriously questioned the continuing validity of the traditional, A priori arguments in favor of interspousal immunity. However, the Court was unwilling to overrule its earlier decisions and a majority of the Justices in Mosier were careful to limit its effect. Speaking for 3 other Justices, Mr. Justice Souris concluded:

'It is appropriate to add that what we have said here concerning the doctrine of interspousal tort immunity Must be considered in light of these same fact circumstances.' 376 Mich. 566, 138 N.W.2d 355. (Emphasis supplied.)

In concurring, Mr. Justice Smith noted:

'I wish it to be understood, then, that in concurring in the holding of Justice Souris' opinion, I am not voting for the abolition of all interspousal tort immunity in Michigan, but for the Specific result in the cases before us.' 376 Mich. 573, 138 N.W.2d 359. (Emphasis supplied.)

Mr. Justice O'Hara was also careful to limit the extent of his agreement with Mr. Justice Souris. ² Thus, it is clear that Mosier, in effect, creates 2 limited exceptions to the common-law doctrine of interspousal immunity. ³ Where the tort is antenuptial suit may be maintained. Likewise, suit may be maintained where the tort results in the termination of the marriage by death. However, if the facts as alleged fall within neither of these specific exceptions, Bandfield, Harvey and Riser remain controlling.

In this case, the allegedly wrongful act has not resulted in the termination of the marriage by death. It is conceded that the parties remain married. Thus, plaintiff in effect urges that we create an additional exception to the 'plain and long-established' rule of interspousal tort immunity. See Bandfield, supra, p. 82, 75 N.W. 287. This we have no right to do.

In his opinion in Mosier, Mr. Justice Souris noted:

'Since the doctrine of interspousal tort immunity is a creation of the common law and since such doctrine has never been codified in this State, it is Our duty to re-examine it and, if necessary to avoid continuing inuustice, to change it.' 376 Mich. 543, 138 N.W.2d 344. (Emphasis supplied.)

We believe it is the duty of an intermediate appellate court to adhere to established precedent. If an additional exception to the general rule of interspousal tort immunity is to be created, the decision must be that of the Supreme Court. Since in this case the allegedly wrongful act has not resulted in the termination of the marriage by death, Stare decisis requires that we reverse the trial court's denial of defendant's motion for summary judgment.

Reversed. Costs to appellant.

LESINSKI, Chief Judge (dissenting).

I find myself in disagreement with the views expressed by the majority. The question initially presented regarding Mosier v. Carney (1965), 376 Mich. 532, 138 N.W.2d 343, is whether it stands as a narrow exception to a general rule or whether it stands for the broader proposition that where the reasoning behind the doctrine does not apply, the doctrine itself will not be applied.

The importance of this question arises from the general, all pervasive application of the doctrine prior to Mosier. In Bandfield v. Bandfield (1898), 117 Mich. 80, 75 N.W. 287, 40 L.R.A. 757, the Court commenced its opinion with the following lines:

'The sole question is: Can a wife maintain suit against her husband for a personal tort, committed upon her while they were living together as husband and wife? We answered this question in the negative in the case of Wagner v. Wayne Circuit Judge (no opinion, not reported), decided November 17, 1897.'

The language of the Court clearly implies that it was not treating each suit as a case of first impression.

The doctrine is given similar treatment in Harvey v. Harvey (1927), 239 Mich. 142, 214 N.W. 305; Riser v. Riser (1927), 240 Mich. 402, 215 N.W. 290; and Kircher v. Kircher (1939), 288 Mich. 669, 286 N.W. 120. In Kircher the Court concluded at p. 671, 286 N.W. p. 121, with the following comment:

'As has been stated, it is contrary to public policy in this state to permit one spouse to sue the other for negligent injury, and this closes the court to the action at bar brought by a resident of Michigan against her husband for a tort committed in Colorado.'

My analysis of Mosier leads me to the conclusion that a majority of the Supreme Court adopted the view that the doctrine of interspousal immunity will no longer be a Per se rule, but rather that each case will be examined by the courts, as was done in Mosier, to determine the applicability of the reasons behind the doctrine. The majority, thus, rejected the method used in the old cases of automatically applying the doctrine in every case.

The opinion of Mr. Justice Souris clearly refused to apply the doctrine to cases where the reasons behind the doctrine do not also apply. As was stated at p. 565, 138 N.W.2d p. 355:

'We have examined the Michigan precedents And have found nothing in them which logically militates against permitting prosecution of the suits here involved. Indeed, as we have seen The 'reasoning,' if it may be called that, of those cases, has no applicability in the fact circumstances of these instant cases of first impression.' (Emphasis supplied.)

Of the two concurring justices, Mr. Justice O'Hara appears to carve out a very limited exception to the general rule. He would allow recovery only where the wrongful act is the negligent operation of a motor vehicle and the tort results in the death of one spouse.

Mr. Justice Smith, however, goes further and treats each of the three cases then on appeal as ones of first impression. He states beginning at p. 573, 138 N.W.2d at p. 359:

'Each of the 3 cases brings some special merit...