Morin v. Letourneau

• Decision Date: 01 December 1959
• Citation: 102 N.H. 309,156 A.2d 131
• Parties: Theresa M. MORIN v. Richard M. LETOURNEAU.
• Court: New Hampshire Supreme Court

Page 131

156 A.2d 131

102 N.H. 309

Theresa M. MORIN v. Richard M. LETOURNEAU.

Supreme Court of New Hampshire.

Argued Nov. 3, 1959.

Decided Dec. 1, 1959.

Walter H. Gentsch, East Jaffrey, and Willian D. Tribble, Manchester, for plaintiff, furnished no brief.

Upton, Sanders & Upton and Wesley E. Whitney, Concord, for defendant.

DUNCAN, Justice.

It is the settled law of this jurisdiction that a married woman may maintain an action against her husband for damages suffered during coverture as a result of his illegal acts (Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A.1916B, 907) including negligent acts (Miltimore v. Milford Motor Co., 89 N.H. 272, 197 A. 330).

RSA 460:2 provides in part: 'Every married woman * * * may * * * sue and be sued, in all matters in law and equity * * * as if she were unmarried'; and it is considered that as a result of the married women's acts 'husband and wife now stand upon an equality of right in respect to property, torts, and contracts * * *.' Seaver v. Adams, 66 N.H. 142, 143, 19 A. 776. See also, Caplan v. Caplan, 83 N.H. 318, 142 A. 121; Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404.

It has been the equally well settled law of this and other jurisdictions that the existence and extent of a cause of action for a wrong are governed by the law of the place where the wrong occurred, or the plaintiff's injuries were suffered. Restatement, Conflict of Laws, s. 382 et seq. Gray v. Gray, supra; Boisvert v. Boisvert, 94 N.H. 357, 53 A.2d 515; Zielinski v. Cornwell, 100 N.H. 34, 37, 118 A.2d 734. Thus in Miltimore v. Milford Motor Co., 89 N.H. 272, 273, 197 A. 330, 331, supra, it was said that "incidents of [the marital status of parties domiciled in the forum] are those prescribed by the law of the place where the transactions [took] place.' Though by the law of the forum the wife's incapacity to recover for the tort of her husband has been abolished, the lex loci delicti must determine her right to recover in the present action against her husband. Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404.' This was the conclusion reached in Gray v. Gray, supra, where the plaintiff wife was injuried in Maine; and it was there determined that under the law of Maine 'there is not merely * * * a prohibition of suit, but * * * the acts complained of do not give rise to any cause of action.' Id., 87 N.H. 85, 174 A. 509.

Relying upon this rule, the defendant in this case contends that under Massachusetts law the plaintiff could not recover in that jurisdiction (Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320), and therefore should not be permitted to maintain her action here. In support of this contention he relies upon Coster v. Coster, 289 N.Y. 438, 46 N.E.2d 509, 146 A.L.R. 702 and Bohenek v. Niedzwiecki, 142 Conn. 278, 113 A.2d 509 to illustrate proper application of principles of conflict of laws in cases of antenuptial torts, and to establish that the right of the wife to recover against her spouse is a matter of substantive law and governed by the law of the place of the wrong when the law of the forum differs. See annotation 43 A.L.R.2d 632, 636.

Recent developments in the field of conflict of laws indicate support in interspousal or family suits, arising out of wrongs committed in foreign jurisdictions, for the view that the rights of the parties should be determined in accordance with the law of the domicile of the parties. Emery v. Emery, 45 Cal.2d 421, 428, 289 P.2d 218; Koplik v. C. P. Trucking Corp., 27 N.J. 1, 11-12, 141 A.2d 34; Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814 (overruling Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342); Bodenhagen v. Farmer's Mut. Ins. Co., 5 Wis.2d 306, 92 N.W.2d 759, modified in 95 N.W.2d 822. And see Kelso: Accidents and Conflict of Laws, 33 Ind.L.J. 297; Ford; Interspousal Liability for Automobile Accidents, 15 U.Pitt.L.Rev. 397; note, 68 Harv.L.Rev. 1260; comment, 15 Wash. & Lee L.Rev. 266, 275-276. In commenting upon the Koplik case, supra, Professor Seavey has recently expressed disagreement with the Connecticut decision in Bissonnette v. Bissonnette, 145 Conn. 733, 142 A.2d 527, which followed Bohenek v. Niedzwiecki, 142 Conn. 278, 113 A.2d 509, supra. 1958 Annual Survey of American Law 487, 488 (34 N.Y.U.L.Rev. 527, 528).

However, none of these decisions have been referred to by the parties, and we find no occasion for purposes of this case either to adopt or to censure the views which they advance (cf. Lumbermen's Mutual Casualty Co. v. Blake, 94 N.H. 141, 47 A.2d 874), or to question the soundness of the rule applied in Miltimore v. Molford Motor Company and Boisvert v. Boisvert, supra. The latter cases both involved causes claimed to have arisen after marriage, out of conduct in Massachusetts; and the view adopted has been reinforced by Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637, 2 A.L.R.2d 632, a case since decided, where it was held that following annulment of a marriage valid when the alleged acts of negligence took place (322 Mass. at page 555, 78 N.E.2d at page 640), a wife may not maintain an action against her former spouse based upon his conduct during the marriage, 'for the more fundamental reason that because of the marital relationship no cause of action ever came into existence.' Id., 322 Mass. 552, 78 N.E.2d 638.

The issue before us in this case, however, is not that of whether a wife may maintain an action against her spouse for a wrong which occurred in Massachusetts after the marriage. In the language of Koplik v. C. P. Trucking Co., supra, 3 'No conflict of laws problem is presented with respect to [the plaintiff's cause of action before marriage] for both [Massachusetts and New Hamphire] recognize her right to sue in such a situation. The issue here is simply whether the subsequent marriage before judgment extinguishes the right to prosecute the action.' [27 N.J. 1, 141 A.2d 35.] See annotation, 43 A.L.R.2d 632, supra, 642, s. 4.

As a preliminary matter, it may be observed that neither the law of New Hampshire, nor that of Arkansas, where the marriage took place, would operate to preclude recovery by the plaintiff wife unless required by the law of Massachusetts. See Katzenberg v. Katzenberg, 183 Ark. 626, 37 S.W.2d 696; Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15; note, 34 N.D.L.Rev. 71.

We turn therefore to a consideration of Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320, supra, upon which the defendant relies to establish his right to dismissal, in accordance with the decisions of the New York and Connecticut courts in Coster v. Coster and Bohenek v. Niedzwiecki, supra. The Lubowitz case parallels the case now before us, in that in each case the accident occurred before the marriage. Unlike the situation in Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637, 2 A.L.R.2d 632, where it was held that no cause of action ever arose between the spouses, in Lubowitz v. Taines, supra, it was not questioned that a cause did arise, since the...