Imig v. March

• Decision Date: 29 May 1979
• Docket Number: No. 41941,41941
• Parties: Ervin E. IMIG, Personal Representative of the Estate of Lois B. Schaap, Deceased, Appellant, v. William MARCH, Personal Representative of the Estate of Otto F. Schaap, Deceased, Appellee.
• Court: Nebraska Supreme Court

Page 382

279 N.W.2d 382

203 Neb. 537

Ervin E. IMIG, Personal Representative of the Estate of Lois B. Schaap, Deceased, Appellant, v. William MARCH, Personal Representative of the Estate of Otto F. Schaap, Deceased, Appellee.

No. 41941.

Supreme Court of Nebraska.

May 29, 1979.

Syllabus by the Court

1. Torts: Husband and Wife: Negligence: Case Overruled. The common law doctrine of interspousal tort immunity pronounced in Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297 (1927), is abrogated.

2. Torts: Husband and Wife: Negligence. The personal representative of a decedent may maintain a wrongful death action based on the alleged negligence of decedent's spouse.

M. J. Bruckner and Gary J. Nedved of Marti, Dalton, Bruckner, O'Gara & Keating, Lincoln, for appellant.

Patrick H. McDonnell, Omaha, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

This is a wrongful death action brought by the personal representative of a deceased wife against the personal representative of her deceased husband. Lois B. Schaap was the only other passenger in an airplane piloted by Otto F. Schaap, and the petition alleged that his acts of negligence and gross negligence were the proximate cause of the crash which occurred on February 26, 1977, resulting in these deaths. Defendant filed a demurrer questioning plaintiff's capacity to sue because of the marriage relationship which existed between the two decedents at the time of the accident. The trial court, although expressing the opinion that its decision might be overturned, felt that it was bound by the law as previously established by this court and sustained the demurrer. Plaintiff appealed. The issue is whether we should adhere to the traditional rule of interspousal immunity as it applies to tort liability.

Essentially, plaintiff argues that the doctrine of interspousal tort immunity is of judicial origin and this court has the power to modify or abolish it in the absence of legislative action to the contrary. Defendant insists that the doctrine was adopted by the Legislature when it adopted the common law of England by virtue of section 49-101, R.R.S.1943, and its predecessor, the Revised Statutes of the Territory of Nebraska, July 1, 1866.

The doctrine was first judicially pronounced in Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297 (1927). In that case, this court held that the statutes which granted married women certain independent contract and property rights and the right to sue and be sued did not authorize a suit by a wife against her husband to recover damages for injuries to her person. In a somewhat simplistic justification of its position, the court expressed itself with this language: "The legislation of this state apparently was designed to remove disabilities for married women, so as to place the sexes in equal position before the law. This was fully attained. The husband may not sue the wife for tort. Both spouses have the same disability and the equality is complete."

Although, as indicated, the court in Emerson relied to a certain extent on the so-called "married woman's act," as did Skinner v. Skinner, 38 Neb. 756, 57 N.W. 534 (1894), it did not cite Skinner. The holding in Skinner was limited to permitting a wife to sue her husband in contract for the use of real estate belonging to her, but its language was of considerably greater breadth. This was manifested by an answer to a non sequitur advanced by the husband's counsel that the act, which permits a married woman to sue in the same manner as if she were unmarried, does not authorize her to sue her husband because if she were unmarried she would have none to sue. The court replied: "The answer to this proposition is, 'that if this woman was unmarried, she could at common law sue this man(; b)eing a married woman, she could not at common law sue her husband, or any one else; but the statute having removed her common law disability in that respect, she may now sue any person whom she could sue, either at common law or under the statute, if she were unmarried. Her legal ability to sue and be sued is not limited to matters having reference to her separate property, trade, or business, as is her legal ability to make contracts.' "

In an even earlier case, May v. May, 9 Neb. 16, 2 N.W. 221 (1879), this court, in permitting suit by a wife against her husband on a promissory note, cited with approval this rather broad and liberating language from an 1856 California case: " 'The present policy of the law is to recognize the separate legal and civil existence of the wife, and separate rights of property; and the very recognition by the law of such separate existence and rights at law as well as in equity, to hold and enjoy separate property, involves a necessity for opening the doors of the judicial tribunals to her, in order that the rights guaranteed to her may be protected and enforced.' "

Both Emerson and Skinner cited the progenitor of section 25-1201, R.R.S.1943, now repealed, which prohibited a husband or wife from testifying "concerning any communication made by one to the other during the marriage." What effect that had in Emerson is not revealed with any certainty, but in any event, that statute has been repealed and replaced by section 27-505, R.R.S.1943, which limits the prohibition to "any confidential communication."

The real basis for the decision in Emerson may be found in the following language from the opinion: "An examination of the decisions of other jurisdictions discloses a great weight of opinion opposed to opening a field of litigation between spouses in tort actions by means of judicial interpretation and without unmistakable legislative action. The procedural difficulties, the dangers of disrupting the secrecy and serenity of marital relations, the avenue for fraud, the startling innovation in permitting such controversies, and the lack of clear legislative indorsement have all been assigned as ample reasons for the refusal of the courts to sanction, by supplying statutory interpretation, a new form of litigation manifestly requiring unequivocal legislation for its existence." These considerations include all of the traditional reasons advanced by the courts of the United States for prohibiting tort suits between spouses. These suits are now rejected in approximately one-half of the states.

However, Nebraska seems to have been unique in assigning "procedural difficulties" as a reason for adopting the doctrine. It is difficult to envision what these "difficulties" might be which are any different than those arising in either a marriage dissolution case, a criminal charge, or a suit involving contract or property rights.

Perhaps the best answer to the "secrecy and serenity" argument is the response of Professor Prosser, cited with approval in many cases, including Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972): " 'The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy and this even though she has left him or divorced him for that very ground, and although the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.' Prosser, Law of Torts, 863 (4th Ed. 1971)."

The "avenue for fraud" objection is likewise rationally answered in Brooks v. Robinson, supra : "Those who advocate this view have simply concluded that since the Possibility exists that tort litigation between husband and wife will not constitute a truly adversary proceeding, we should therefore close the courtroom doors to these parties and leave the injured to suffer his loss and the wrongdoer to escape his liability. To adopt such a view requires the blanket assumption that our court system is so ill-fitted to deal with such litigation that the only reasonable alternative to allowing husband-wife tort litigation is to summarily deny all relief to this class of litigants. It should be noted that this 'reasonable alternative' is absolutely contrary to the spirit of our legal system namely, that an injured party may seek redress for his injuries in our courts." It is the regular business of the courts to find the truth. We ought not deny what should be due the many for fear that the judicial process cannot weed out the spurious claims of a few. Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970).

It is somewhat difficult to know just what the court in Emerson was referring to in its "startling innovation" reason for denying this type of action. Undoubtedly it was tied up in the old common law doctrine of the unity of husband and wife, or as Professor Prosser states in his Law of Torts, s. 122 (4th Ed., 1971): "It has been said, whether humorously or not, that at common law husband and wife were one person, and that person was the...