Lederle v. United Services Auto. Ass'n

• Decision Date: 09 September 1965
• Docket Number: No. 4408,4408
• Citation: 394 S.W.2d 31
• Parties: Ferdinand LEDERLE et ux., Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 31

394 S.W.2d 31

Ferdinand LEDERLE et ux., Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.

No. 4408.

Court of Civil Appeals of Texas, Waco.

Sept. 9, 1965.

Rehearing Denied Sept. 30, 1965.

Head & James, Michael C. Kendrick, jr., Corpus Christi, for appellants.

Mahoney, Shaffer & Hatch, Corpus Christi, for appellee.

WILSON, Justice.

Appellants, husband and wife, citizens and residents of Texas, appeal from a declaratory judgment in which the trial court determined that appellee insurer did not owe a defense under its automobile liability insurance policy, and was not obligated to pay for the loss claimed under that policy.

The automobile described in the policy, owned by husband ans wife, was involved in a collision in Oklahoma. The husband was the driver of the insured vehicle; his wife was a passenger. The wife filed suit against her husband in Oklahoma to recover damages for her personal injuries. It is recognized by the parties that under Oklahoma law the wife may maintain an action against her husband for such damages, alone, and in her own name.

By the present action the insurer sought and obtained a declaration under Art. 2524-1, Vernon's Ann.Civ.Stat., that it was not obligated to defend the wife's suit against the husband and was not liable for sums which the husband became legally obligated to pay thereby. The wife was enjoined from further prosecuting the Oklahoma action against her husbnd. The insurer is a Texas reciprocal insurance association with its principal office in Texas. It issued its Texas standard form Family Automobile Policy in which the husband was the named insured. By policy definition the wife is also a 'named insured,' as well as an 'insured.' The policy was delivered in Texas.

The contention of husband and wife is that the insurer is obligated to defend and pay because the insuring clause requires it to pay all sums which the insured shall become legally obligated to pay because of bodily injury 'sustained by any person' arising out of the ownership, maintenance or use of the owned automobile; and to defend any action alleging such injury. 'Any person,' they say, includes the wife of the named insured. They also insist that the law of Oklahoma, as that of the place of the tort and of the forum, governs all conflict of laws questions in the case. The Oklahoma court so held on preliminary pleas in the wife's action there against her husband.

What law governs as to the right of the wife to maintain an action for personal injuries against her husband?

Under Texas substantive law the wife cannot recover damages from the husband for injuries resulting from the husband's negligence. Nickerson v. Nickerson, 65 Tex. 281; Dallas Ry. & Terminal Co. v. High, 129 Tex. 219, 103 S.W. 735, 736; Crawford v. DeLong, Tex.Civ.App., 324 S.W.2d 25, writ ref. n. r. e.

Remendial rights, however, are generally controlled by the law of the forum, 16 Am.Jur.2d, Conflict of Laws, Sec. 76, which determines who may and who must sue and be sued. American Law Institute, Restatement, Conflict of Laws, Sec. 588; 15 C.J.S. Conflict of Laws § 22, p. 952. Such adjective law questions as proper joinder and misjoinder of parties, and whether the wife may be sole plaintiff in a suit against her husband are governed by Oklahoma law, that of the forum. Consequently, it is our opinion the Texas Court was not authorized to enjoin further proceedings in Oklahoma on grounds involving remedial law.

The preliminary question, however, is not one of adjective, but of substantive law: what law governs in determining whether the husband is immune from tort liability to the wife? That question has not been decided in Texas. The subject has received extensive treatment from eminent contributors to periodicals, ¹ and text writers. Stumberg, in his Principles of Conflict of Laws (3d ed. 1963) 206, noting that suits such as the present are not permitted in community property states 'because of the relationship of the recovery to the marital assets,' concluded, 'the domiciliary law has well-grounded claim for recognition.'

The problem was not encompassed by the original American Law Institute Restatement, Conflict of Laws, but is dealt with directly by the tentative draft of the second Restatement, Sec. 390g:

'Intra-Family Immunity. Whether one member of a family is immune from tort liability to another member of the family is determined by the local law of the state of their domicil.'

It is commented that the quoted rule represents the trend of the modern decisions, many of which are cited in the note. Holdings are listed from some jurisdictions, that the law of the place of the tort governs. Earlier decisions are collated in 22 A.L.R.2d 1248. Ford ¹ suggests seven advantages in the application of the law of the matrimonial domicil. Among these are that it will result in consistency with the domestic policy of the state which has primary responsibility for regulating incidents of the marital relationship; and that it will provide certainty, avoiding diversity of decisions.

In our opinion the law of the domicil of husband and wife, that of Texas, controls the question of the husband's immunity from tort liability.

Will equity intervene, then, to restrain prosecution of the Oklahoma action on this ground alone? Such power should be exercised sparingly, and only to prevent manifest wrong and injustice. University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426, cert. den. 366 U.S. 973, 81 S.Ct. 1040, 6 L.Ed.2d 1262; 43 C.J.S. Injunctions, Sec. 49. See Barr v....