Mogford v. Mogford

• Decision Date: 11 February 1981
• Docket Number: No. 16528,16528
• Citation: 616 S.W.2d 936
• Parties: Lorenzo MOGFORD, Appellant, v. Dorothy MOGFORD, Appellee.
• Court: Texas Court of Appeals

Page 936

616 S.W.2d 936

Lorenzo MOGFORD, Appellant, v. Dorothy MOGFORD, Appellee.

No. 16528.

Court of Civil Appeals of Texas, San Antonio.

Feb. 11, 1981.

Rehearing Denied March 18, 1981.

Darrell G. Lochte, Kerrville, for appellant.

R. E. Lee, Mason, for appellee.

OPINION

ESQUIVEL, Justice.

This is an appeal of a divorce case in which a cause of action for personal injuries was joined in the trial court. No appeal is taken from that part of the judgment granting the divorce. To our knowledge, it is a case of first impression in this state.

Appellee, Dorothy Mogford, the wife of appellant, Lorenzo Mogford, for thirty-one years, sued for divorce in the district court. At the time of the divorce there were no minor children of the marriage. By her Second Amended Original Petition, appellee joined a cause of action for personal injuries arising out of willful and intentional torts committed upon her person by appellant during the marriage. In her petition, appellee sought $100,000.00 actual damages and $100,000.00 in punitive damages. The trial of the cause was to a jury. The jury awarded appellee $20,000 in damages for injuries and mental anguish caused by appellant's abuse of her. No punitive damages were awarded. The decree of divorce entered by the trial court on August 31, 1979, stated the grounds for the divorce. In answers to special issues presented to the jury, it was found that appellant was guilty of cruel treatment of appellee; that during the marriage appellant had committed adultery; that appellant had willfully and intentionally struck and abused appellee during the marriage, and that appellee was injured as a result of the willful and intentional acts of appellant. The trial judge also made a division of the community property and entered a corrective judgment nunc pro tunc, so that temporary orders issued during the pendency of the divorce would continue in effect until the appeal was exhausted.

Appellant cites eight points of error on appeal. Because of the nature and importance of this case we will examine each point of error individually. This case delves into the unclear realm of interspousal tort immunity on which there is a dearth of cases that we can consider to guide us. As far as we have been able to determine there are no cases specifically on point with this particular case in this state.

Appellant's first point of error is as follows:

IT WAS FUNDAMENTAL ERROR FOR THE TRIAL COURT TO RENDER JUDGMENT AGAINST APPELLANT FOR CLAIMED INJURIES RESULTING FROM ALLEGED TORTIOUS CONDUCT OF APPELLANT DURING THEIR MARRIAGE AND BEFORE ANY SEPARATION. UNDER THE STATUTORY LAW OF 'INTERSPOUSAL IMMUNITY' APPELLEE NEITHER HAS NOR HAD ANY CAUSE OF ACTION FOR THE INJURY CLAIMED, IF ANY INJURIES THERE WERE.

This point of error is the one relied on and briefed most exhaustively by both parties. Appellant's attorney argues forcefully that, "under the Constitution and laws of the State of Texas neither the wife nor the husband has any cause of action based upon the tortious conduct (willful or otherwise) of either against the other." Appellant's contention is that the common law doctrine of interspousal tort immunity is still applicable in Texas despite the recent erosion of this concept in the statutes, case law, and learned treatises. Appellant states that the common law was originally adopted by statute and that it remains in force today by statute. Appellant quotes from Vernon's Annotated Texas Statutes Article 1: "The common law of England so far as it is not inconsistent with the Constitution and the laws of this State, shall together with such Constitution and laws be the rule of decision and shall continue in force until altered or repealed by the Legislature."

Appellant urges that under this reasoning, the doctrine of interspousal tort immunity was transformed into statutory law because this common law concept of ancient England has been adopted by the Legislature of this State.

Appellant's argument fails in this case. The common law disability that prohibits one spouse from bringing a suit for grievances against the other has for some time been in retreat in this state. Equity, equality and justice have long cried out for a remedy to an aggrieved spouse for such heinous and despicable behavior inflicted by one spouse upon the other.

A passage in the landmark decision of Bounds v. Caudle, 560 S.W.2d 925, 926 (Tex.1977), states quite succinctly the foundation on which the common law doctrine rested:

The doctrine of interspousal tort immunity had its origin in the common law and is based on the legal fiction that the husband and wife became one person in law. Under this concept married women lost their capacity to sue or to be sued without the joinder of the husband. The wife's personal and property rights as well as her legal existence were considered suspended during the marriage. The husband acquired all of his wife's choses in action and could assert them in his own name and he became liable for the torts of his wife. This concept necessarily made it impossible for one spouse to maintain an action against the other.

It is quite evident that the concept of the unity of the husband and wife as one person has been abandoned so far as the laws of this state are concerned. A woman is no longer viewed as an appendage of her husband. She is an individual with rights and duties of her own and not merely a subservient chattel of the male.

The Texas Family Code now provides that a wife's recovery for personal injuries other than for loss of earning capacity is part of her separate estate. Tex.Fam.Code Ann. § 5.01(a)(3) (Vernon 1979). The Family Code permits a spouse to sue and be sued without the joinder of the other spouse. Tex.Fam.Code Ann. § 4.04 (Vernon 1979). Under section 5.21 of the Family Code, the wife has sole management, control and disposition of her separate estate. Tex.Fam.Code Ann. § 5.21 (Vernon 1979). It is not difficult to see that these statutory changes make the common law rationale for the doctrine obsolete under recent laws enacted by the Legislature. The fictional unity of the marriage relationship has also been dramatically altered by the emergence of women's rights over the past eighty years. The Supreme Court of Texas in Bounds v. Caudle, wisely ruled that there is no sound basis in barring a suit for an intentional tort, and accordingly abolished the rule of interspousal tort immunity to the extent that it served as a bar to all claims for willful and intentional torts arising out of a wrongful death action.

There is no doubt in our minds that the unity and harmony of the family is of paramount importance to our society, but so is the physical and mental well-being of the individuals that comprise the family. A family in which willful or intentional torts have caused injury and mental anguish to occur is not likely to be more disrupted by allowing a spouse to redress a grievance in the courts of equity. The usual occurrence is that when such physical attacks occur the marriage is already in deep trouble. It is most difficult to perceive how allowing a suit for injury could disrupt the marriage even more. As a matter of public policy, we feel that the disallowance of such actions could do more to destroy a family than to allow them. This is because the allowance of such suits provides a means to redress a wrong committed upon a family member who is otherwise virtually powerless to stop such abuses. Perhaps, it is not unlikely that the allowance of such actions would serve as a deterrent or restraint upon a violent family member who is disposed to batter his or her spouse and children. It is our opinion that the theoretical basis for the disallowance of such suits which is pinned upon public policy must give way to a more urgent policy need, that being the redress of a wrong committed upon the person of an individual. Indeed, several other states have gone so far as to allow suits between spouses to take place with regard to intentional torts, and in some cases even negligent torts. Johnson v. Johnson, 201 Ala. 41, 77 So. 335 (1917); Cramer v. Cramer, 379 P.2d 95 (Alaska 1963); Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957); Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962); Self v. Self, 58 Cal.2d 683, 26 Cal.Rptr. 97, 376 P.2d 65 (1962); Foster v. Foster, 264 N.C. 694, 142 S.E.2d 638 (1965).

Justice Greenhill in the recent case of Robertson et al. v. The Estate of Byron M. McKnight, 609 S.W.2d 534 (Tex.1980), stated, "While Texas does not permit spouses to recover from each other for negligently inflicted injuries, a rule which does permit such a suit does not violate good morals or natural justice." Indeed, we believe that justice is served by stating what is already obvious; the legislature by its actions has mortally wounded the doctrine of interspousal tort immunity and we will not take heroic steps to insure its survival. We are not unheeding to policy arguments that would serve to controvert our position, but the dignity of the individual demands that at the same time we must heavily weigh many compelling factors in favor of allowing the trial court's judgment to stand. We have done this with great care and reflection. Accordingly, appellant's Point of Error No. 1 is overruled.

Appellant's Second Point of Error is as follows:

THE TRIAL COURT WAS GUILTY OF FUNDAMENTAL ERROR IN RENDERING JUDGMENT FOR THE APPELLEE'S CLAIMED PERSONAL INJURIES IN THIS CAUSE, BECAUSE THE INSTANT CAUSE IS ONE FOR DIVORCE AND THE DISTRICT COURT IS WITHOUT POWER, AUTHORITY OR JURISDICTION TO CONSIDER A TORT CLAIM IN A DIVORCE ACTION.

This case was initiated on August 3, 1977, with the filing of appellee's original petition. This petition requested that the court grant a divorce and divide the marital property, together with a prayer for the issuance of temporary orders. On October 30, 1978, following the Supreme Court's decision in Bounds v. Caudle, appel...