Hunter v. Livingston, 18534
| Citation | 123 N.E.2d 912,125 Ind.App. 422 |
| Decision Date | 08 February 1955 |
| Docket Number | No. 18534,18534 |
| Parties | Nancy E. HUNTER, Appellant, v. Paul LIVINGSTON, Appellee. |
| Court | Court of Appeals of Indiana |
James D. Lopp and John D. Clouse, Evansville, for appellant.
Markel & Markel, Robert D. Markel and Clifton L. Markel, Evansville, for appellee.
This is an appeal from a judgment rendered in an action in which the appellant sought to recover damages against appellee for personal injuries allegedly caused by the willful and wanton misconduct of appellee while appellant was riding as a guest in appellee's automobile. Appellant and appellee are husband and wife. At the time of the alleged accident in question they were unmarried. The accident occurred on December 16, 1952, appellant and appellee were married on January 28, 1953, and the present suit was filed on April 25, 1953.
In the court below the appellant filed her complaint alleging in substance that she entered the automobile of appellee and was being transported as a guest of appellee without payment therefor. That appellee negligently failed to close the door on the side of the right front seat of such automobile where appellant was riding; that appellee started such automobile in a fast and sudden motion without notice or warning to appellant and turned the automobile to the left on a parkway and driveway of a restaurant, causing the appellant to be thrown against the door and side of such automobile and upon such driveway, thereby seriously painfully and permanently injuring appellant. The complaint alleged that the acts were willfully and wantonly done; that appellant received severe cuts and permanent disfigurement.
To this complaint appellee filed a verified plea in abatement, setting forth the relationship of the parties, that they were unmarried on the date of the accident, and subsequently were married, and that they were husband and wife at the time the present cause of action was commenced. Appellant demurred to such plea in abatement, and in the memorandum thereof asserted that the fact of the subsequent marriage of the parties does not bar appellant from any cause of action she has, or had, against the appellee.
Oral argument was heard on appellant's demurrer to the appellee's answer in abatement, and the demurrer was overruled. The appellant was ruled to plead further to appellee's answer in abatement, appellant refused to plead further, and judgment was rendered for appellee on his answer in abatement that such action abate.
Appellant asserts error in the judgment and proceedings in the court below in that the court erred in overruling the demurrer of the appellant to the appellee's answer in abatement.
By her assignment of error the appellant has presented a most perplexing problem for the determination of this court. The proposition which we are called upon to decide is whether a wife has a cause of action against her husband for a willful and wanton personal injury inflicted upon her prior to her marriage to such husband when the cause of action therefor is commenced subsequent to the marriage and during coverture. Difficulty arises because of the involution which exists in the recorded cases dealing with the rights and status of a married woman as against her husband as the rigid rule of common law, yielding to a more enlightened and humane civilization, has been changed by various judicial interpretations following the passage of the various so-called Married Woman's Acts. The consideration of this problem has resulted throughout the country in numerous cases of split decisions with rather strong and vehement language used by the proponents of the divergent views.
The majority view in the decided cases is that a married person does not have a cause of action against his or her spouse for a personal tort. In a substantial minority of states, the liability of a spouse to the other has been upheld.
A most exhaustive study of the present status of the majority and minority rule is to be found in the case of Courtney v. Courtney, 1939, 184 Okl. 395, 87 P.2d 660. A more recent case upholding the minority rule is Taylor v. Patten, 1954, 2 Utah 2d 404, 275 P.2d 696.
Prior to the passage of the Married Woman's Act, (Indiana has passed such an Act), Acts of 1879, (Spec.Sess.), ch. 67, § 6, and § 38-115, Burns' 1949 Replacement, the problem of tort suits between spouses did not present any real problem. The common law rule uniformly applied in all of the jurisdictions in this country and in England was, that a tort did not give rise to a cause of action in favor of the injured spouse. Such rule was based upon the unity of husband and wife and that the wife's individuality becomes merged in her husband. However, in construing the effect of the Married Woman's Acts, now in force in most of the states of the country, there has arisen a persuasive minority of decisions which follow the dissent of Mr. Justice Harlan in Thompson v. Thompson, 1910, 218 U.S. 611, 31 S.Ct. 111, 114, 54 L.Ed. 1180, and approved by an almost unanimous expression of opinion of respected authorities and text writers which challenges the reason for the previous common law rule when considered in the light of the Married Woman's Acts. Courtney v. Courtney, supra; Taylor v. Patten, supra; Prosser on Torts, § 99, p. 904; 43 Harv.L.Rev. 1030; 10 Cal.L.Rev. 461; 10 Ind.L.J. 290.
Our problem in the instant case is made more complicated by reason of the fact that the alleged injuries were not inflicted during coverture but prior to the time the parties were married.
The appellant prefaces his thesis on what he describes as the most 'important authority that anyone could rely upon', the Constitution of Indiana, art. 1, § 12, which grants to every one 'for injury done to him in his person, property, or reputation, * * * remedy by due course of law', but the appellant's counsel admit that such general statement in the Constitution is not clear-cut as to our problem in the instant case.
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