Lewis v. Lewis

• Decision Date: 09 July 1976
• Citation: 351 N.E.2d 526,370 Mass. 619
• Parties: , 92 A.L.R.3d 890 Blanche LEWIS v. Larry C. LEWIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 526

351 N.E.2d 526

370 Mass. 619, 92 A.L.R.3d 890

Blanche LEWIS

v. Larry C. LEWIS.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Jan. 6, 1976.

Decided July 9, 1976.

Morton J. Sweeney, Springfield (Patricia A. Bobba, Springfield, with him), for the plaintiff.

George J. Shagory, Boston (Edward J. Shagory, Boston, with him), for defendant.

Robert M. Fuster, Pittsfield, for Juliette G. Pevoski, amicus curiae, submitted a brief.

J. Norman O'Connor and John D. Lanoue, Adams, for Joseph J. Pevoski, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

REARDON, Justice.

This matter raises the question of the continuance in Massachusetts of the doctrine of interspousal immunity. The case originated as a civil action of tort for personal injuries brought by the plaintiff Blanche Lewis against her husband, the defendant Larry Lewis. The defendant's motion for summary judgment was granted, and we allowed the plaintiff's motion for direct appellate review. Blanche Lewis was a passenger in a car owned and driven by her husband on July 27, 1973, when about 9 P.M., on a public highway in the town of Agawam, the car slid on a wet pavement, struck a light pole and rolled over on its side, causing injury to the plaintiff. The motion for summary judgment which was allowed was based on the common law doctrine of interspousal immunity and on the provisions of G.L. c. 209, § 6, as amended by St.1963, c. 765, § 2. In addition to briefs filed by the parties we also reviewed briefs filed by counsel in a case raising a similar question commenced in the Superior Court for Berkshire County. We are thus led to a discussion of the current status of the doctrine of interspousal immunity and our opinion relative to the argument here presented by the plaintiff.

The fundamental basis for the common law rule of interspousal immunity was the special unity of husband and wife within the marital relationship. For most purposes the common law treated husband and wife as 'a single person, represented by the husband.' Nolin v. Pearson, 191 Mass. 283, 284, 77 N.E. 890, (1906). See Butler v. Ives, 139 Mass. 202, 203, 29 N.E. 654 (1885). This merger of legal identities has been described in the following terms: 'By marriage, the husband and wife are one person in law: . . . that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything . . .. Upon this principle, of a union of a person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.' 1 W. Blackstone, Commentaries *442.

Among the many disabilities visited upon a woman once she took her marriage vows was an inability to sue or be sued in her own name. To enforce any right of action for tortious injury to her person her husband had to be joined as a plaintiff; and, furthermore, he was entitled to the proceeds of any judgment obtained. Conversely, to enforce an action against a married woman it was necessary to join the husband as a defendant, and a judgment, if obtained during coverture, became the obligation of the husband. McCurdy, Personal Injury Torts Between Spouses, 4 Vill.L.Rev. 303, 304 (1959). 1 F. Harper & F. James, Torts § 8.10 at 643 (1956).

Within this framework a rule prohibiting suits between husband and wife made some sense. Not only was there the conceptual problem of the single marital entity suing itself but, as a practical matter, the rules of liability would have rendered such suits idle exercises. As Dean Prosser pointed out: 'If the man were the tort-feasor, the woman's right would be a chose in action which the husband would have the right to reduce to possession, and he must be joined as a plaintiff against himself and the proceeds recovered must be paid to him . . .. If the wife committed the tort, the husband would be liable to himself for it, and must be joined as a defendant in his own action.' W. Prosser, Torts § 122 at 860 (4th ed. 1971).

These antediluvian assumptions concerning the role and status of women in marriage and in society which animated and gave support to the common law rule of interspousal immunity were soon perceived as inconsistent with the principles and realities of a progressing American society. Beginning in the middle of the nineteenth century, women's emancipation acts were passed in all American jurisdictions in order to secure to married women their own independent legal identities. See W. Prosser, Torts § 122 at 861 (4th ed. 1971); McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1036--1037 (1930). In Massachusetts, beginning with St.1845, c. 208, the Legislature through a series of enactments now found in G.L. c. 209, §§ 1--13, has moved to recognize and invigorate the legal identity of the married woman. Most of the disabilities which rendered women second class citizens under the common law were removed by these statutes in Massachusetts. They provide inter alia that a married woman may hold and dispose of both real and personal property (G.L. c. 209, § 1), may enter into contracts in her own name (G.L. c. 209, § 2), and may sue and be sued in her own name without joinder of her husband, and without her husband's being liable for judgments against her (G.L. c. 209, §§ 6, 8). As we recognized as early as 1906 in Nolin v. Pearson, supra, 191 Mass. at 285, 77 N.E. at 890, 'This remedial legislation has resulted in very largely impairing the unity of husband and wife as it existed at common law.' The old order has been changing and the doctrine of the legal unity of husband and wife is no longer a satisfactory foundation on which to base a rule of interspousal tort immunity. ¹

Despite the demise of the unity theory of husband and wife and the enactment of married women's acts, the rule of interspousal tort immunity has survived in Massachusetts and in many other jurisdictions. This court could say in 1948 in very broad and dogmatic terms, 'That no cause of action arises in favor of either husband or wife for a tort committed by the other during coverture is too well settled to require citation of authority. Recovery is denied in such a case not merely because of the disability of one spouse to sue the other during coverture, but for the more fundamental reason that because of the marital relationship no cause of action ever came into existence.' Callow v. Thomas, 322 Mass. 550, 551--552, 78 N.E.2d 637, 638 (1948). Indeed at that time interspousal immunity was the rule in a substantial majority of jurisdictions. However, in the interim there has been a significant trend in other jurisdictions toward abrogating the doctrine. Currently, State jurisdictions are about evenly divided between those which have abandoned and those which have maintained the interspousal immunity rule. Furthermore, among commentators who have considered the topic, criticism of the rule is practically universal. See, e.g., 1 F. Harper & F. James, supra at 643--647; W. Prosser, supra at 859--864; McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030 (1930); McCurdy, Personal Injury Torts Between Spouses, 4 Vill.L.Rev. 303 (1959); Comment Tort Liability Between Husband and Wife: The Interspousal Immunity Doctrine, 21 U.Miami L.Rev. 423 (1966); Note, Interspousal Immunity--Time for a Reappraisal, 27 Ohio St.L.J. 550 (1966).

While most jurisdictions recognize that the theory of the legal identity of husband and wife can no longer support the interspousal immunity rule, those courts which have upheld the rule have generally done so on grounds of public policy. The two arguments most frequently advanced in favor of the rule are, first, that tort actions between husband and wife would tend to disrupt the peace and harmony of the family, and, second, that such actions would tend to promote fraud and collusion on the part of husband and wife for the purpose of reaping an undeserved financial reward at the expense of the family's liability insurer. Both of these arguments were considered and rejected in the analogous context of parental immunity in the recent case of SORENSEN V. SORENSEN, --- MASS. --- , 339 N.E.2D 907 (1975)^A, decided this term. We refer to our discussion and resolution of these issues in that case. Id. at --- - --- ^b, 339 N.E.2d 907. Suffice it to say that just as we did not find the arguments concerning the preservation of family harmony and the avoidance of family fraud sufficient to justify a rule barring tort suits for personal injuries by a child against a parent, we are similarly unconvinced by these arguments in the present context of interspousal immunity. We further note that most of the jurisdictions which have rejected the rule of interspousal immunity have considered these very same arguments and found them wanting. See Self v. Self, 58 Cal.2d 683, 689--691, 26 Cal.Rptr. 97, 376 P.2d 65 (1962) (intentional torts); Klein v. Klein, 58 Cal.2d 692, 694--696, 26 Cal.Rptr. 102, 376 P.2d 70 (1962) (negligent torts); Brooks v. Robinson, 259 Ind. 16, 20--22, 284 N.E.2d 794 (1972); Rupert v. Stienne, 90 Nev. 397, 401--402, 528 P.2d 1013 (1974); Immer v. Risko, 56 N.J. 482, 488--495, 267 A.2d 481 (1970); Flores v. Flores, 84 N.M. 601, 603, 506 P.2d 345 (Ct.App.1973) (intentional torts); Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975) (negligent torts); Surratt v. Thompson, 212 Va. 191, 192, 183 S.E.2d 200 (1971); Freehe v. Freehe, 81 Wash.2d 193, 187--189, 500 P.2d 771 (1972).

However, the defendant argues that, unlike the situation prevailing in most other jurisdictions, the rule of interspousal immunity has taken on statutory dimensions in Massachusetts. The argument is based on G.L. c. 209, § 6, as appearing in St.1963, c. 765, § 2, which provides: 'A married woman may sue and be sued...