Luna v. Clayton

• Decision Date: 23 May 1983
• Citation: 655 S.W.2d 893
• Parties: Michael A. LUNA, b/n/f Jere R. Lee, Individually and as sole surviving child and sole heir-at-law of Linda Luna Clayton, Deceased, Appellant, v. Sherman CLAYTON, Appellee.
• Court: Tennessee Supreme Court

Page 893

655 S.W.2d 893

Michael A. LUNA, b/n/f Jere R. Lee, Individually and as sole surviving child and sole heir-at-law of Linda Luna Clayton, Deceased, Appellant, v. Sherman CLAYTON, Appellee.

Supreme Court of Tennessee at Nashville.

May 23, 1983.

Opinion on Petition to Rehear

Aug. 22, 1983.

Harlan Dodson, Lawrence D. Wilson, Nashville, for appellant.

H. Michael Bennett, Nashville, for appellee.

OPINION

FONES, Chief Justice.

The sole issue before this Court is whether the common law doctrine of interspousal immunity precludes the bringing of a wrongful death action against defendant for the intentional killing of his wife.

Plaintiff brought suit against his step-father under T.C.A. Sec. 20-5-106 for damages for the wrongful death of his mother, whom his step-father intentionally shot and killed. Defendant moved for summary judgment based upon the factually identical case of Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621 (1965), in which this Court upheld the applicability of the common law prohibition against interspousal suits to dismiss a similar wrongful death claim. Relying on Hance v. Haun, supra, the trial court found that since the doctrine of interspousal immunity would have barred the deceased from suing her husband in tort had she lived, she then had no right of action to pass to plaintiff upon her death. Yet finding disapproval with this rule, the trial court overruled defendant's motion for summary judgment and granted defendant an interlocutory appeal for the reconsideration of Hance v. Haun, supra. The Court of Appeals permitted the appeal, but honoring the principle of stare decisis, the appellate court reversed the trial court's order and dismissed plaintiff's suit. Plaintiff now asks this Court to overrule its previous holding in Hance v. Haun, supra, and accordingly reinstate the trial court's order.

I.

Plaintiff directs this Court to its recent consideration of the Tennessee Married Women's Emancipation Act, T.C.A. Sec. 36-601, in Childress v. Childress, 569 S.W.2d 816 (Tenn.1978), and contends that Childress holds that the Act reserved for the wife any cause of action she would have had in tort had she been unmarried, and therefore in the instant case, a derivative cause of action for the deceased's wrongful death survived in her son.

T.C.A. Sec. 36-601, first adopted in 1913, states as follows:

"Married women are fully emancipated from all disability on account of coverture, and the common law as to the disability of married women and its effects on the rights of the property of the wife, is totally abrogated, except as set out in Secs. 36-602, 36-603, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and to do all acts in reference to property which she could lawfully do, if she were not married, but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married."

The Act effectively removed the disability of coverture and its effects upon a woman's property rights based upon the fiction that the legal identity of a woman merged into that of her husband upon marriage; yet as early as 1915, this Court held that the Act "does not n express terms confer upon her the right to sue her husband for torts committed upon her during coverture, nor does it purport by such terms to confer upon him the right to sue her for such torts committed by her." Lillienkamp v. Rippetoe, 133 Tenn. 57, 62, 179 S.W. 628, (1915). Following Lillienkamp v. Rippetoe, supra, in those cases where torts had been committed between spouses during the existence of their marriage, this Court consistently refused to glean from the Act a statutorily created cause of action which the courts did not recognize at common law. See Wooley v. Parker, 222 Tenn. 104, 432 S.W.2d 882 (1968); Hance v. Haun, supra; Gordon v. Pollard, 207 Tenn. 45, 336 S.W.2d 25 (1960); Tobin v. Gelrich, 162 Tenn. 96, 34 S.W.2d 1058 (1931); Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71 (1925).

In cases where torts had been committed between spouses either before a marriage or after its termination by divorce, this Court has not bound itself to the common law and has allowed such suits. See Childress v. Childress, supra; Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166 (1960). We held in Brown v. Selby, supra, that the doctrine of interspousal immunity did not preclude a wrongful death action by the administrator of the wife's estate against the wife's ex-husband for a tort occurring after the entry of their divorce decree. Moreover, in Childress v. Childress, supra, we permitted a wife to sue her husband in tort for personal injuries incurred before their marriage. Yet, in neither Brown v. Selby, supra, nor Childress v. Childress, supra, did we find that the rights of action in tort were legislatively mandated by the Tennessee Married Women's Emancipation Act. In fact, Childress clearly states that the Act only "intended to preserve a pre-existing right of action" in tort against her husband regardless of whether she was married to him at the time the tort occurred. Neither are we now inclined to construe the Act accordingly and deviate from this Court's prior construction and reasoning initially enunciated in Lillienkamp v. Rippetoe, supra:

"We must assume that the legislature had in mind in the passage of the act the fundamental doctrine of the unity of husband and wife under the common law, and the correlative duties of husband and wife to each other, and to the well-being of the social order growing out of the marriage relation, and that, if it had been the purpose of the legislature to alter these further than as indicated in the act, that purpose would have been clearly expressed, or would have appeared by necesssary implication.

We are not warranted in ascribing to the Legislature by anything appearing in this act a purpose to empower a wife to bring an action against her husband for injuries to her person occurring during the coverture, thereby making public scandal of family discord, to the hurt of the reputation of husband and wife, their families and connections, unless such purpose clearly appears by the express terms of the act." 133 Tenn. at 64, 179 S.W. at 629.

II.

Our research reveals that the majority of American jurisdictions which have considered the effect of similar married women's acts on the doctrine of interspousal immunity have also consistently held that the acts were not intended to alter the common law rule or to permit any action for any personal tort between the spouses. See, e.g., Prosser, Law of Torts, Sec. 122 (4th ed. 1971); 4 Restatement (Second) of Torts Sec. 895F, Comment c (1979). In recent years, however, a number of these jurisdictions have either judicially or legislatively abolished the doctrine totally or in part to permit interspousal lawsuits for intentional torts and/or for torts arising in the context of the negligent operation of a motor vehicle. Presently, twenty-seven states have totally abrogated the doctrine. See Fernandez v. Romo, 132 Ariz. 447, 646 P.2d 878 (1982); Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981); MacDonald v. MacDonald, 412 A.2d 71 (Me.1980); White v. White, 618 P.2d 921 (Okl.1980); Shook v. Crabb, 281 N.W.2d 616 (Iowa 1979); Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979); Coffindaffer v. Coffindaffer, 244 S.E.2d 338 (W.Va.1978); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978); Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1975); Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975); Lundberg v. Hagen, 114 N.H. 110, 316 A.2d 177 (1974); Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972); Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972); Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); Layne v. Layne, 433 S.W.2d 116 (Ky.1968); Cramer v. Cramer, 379 P.2d 95 (Alaska 1963); Self v. Self, 58 Cal.2d 683, 26 Cal.Rptr. 97, 376 P.2d 65 (1962) and Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962); Silverman v. Silverman, 145 Conn. 663, 145 A.2d 826 (1958); Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957); Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266 (1941); Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935); Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 242 N.W. 526 (1932); Prosser v. Prosser, 114 S.C. 45, 102 S.E. 787 (1920); Johnson v. Johnson, 201 Ala. 41, 77 So. 335 (1917); Wis.Stat.Ann. Sec. 766.075 (1981); N.Y.Gen.Oblig.Law Sec. 3-313 (McKinney 1978); N.Gen.Stat. Sec. 52-5 (1976).

Twelve states have partially abrogated the doctrine. See Stevens v. Stevens, 231 Kan. 726, 647 P.2d 1346 (1982); Brown v. Brown, 381 Mass. 231, 409 N.E.2d 717 (1980); Counts v. Counts, 221 Va. 151, 266 S.E.2d 895 (1980) and Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975); Stoker v. Stoker, 616 P.2d 590 (Utah 1980); Digby v. Digby, 388 A.2d 1 (R.I.1978); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978); Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Richard v. Richard, 131 Vt. 98, 300 A.2d 637 (1973); Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969); Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955); Ill.Ann. Stat. ch. 40, Sec. 1001 (1982).

Another ten of our sister states have upheld the doctrine against any encroachment either by judicial or legislative action. See Hill v. Hill, 415 So.2d 20 (Fla.1982) and West v. West, 414 So.2d 189 (Fla.1982); Robeson v. International Indemnity Co., 248 Ga. 306, 282 S.E.2d 896 (1981); Alfree v. Alfree, 410 A.2d 161 (Del.1979); Varholla v. Varholla, 56 Ohio St.2d 269, 383 N.E.2d 888 (1978); State Farm Mutual Auto Ins....