Moser v. Hampton

• Decision Date: 18 April 1984
• Docket Number: No. A8102-01142,A8102-01142
• Parties: Jeanne MOSER, Personal Representative of the Estate of Barbara A. Hampton, Deceased, Appellant, v. Clifford HAMPTON, Respondent, and Denise Marie Jayne, Defendant. ; CA A27147.
• Court: Oregon Court of Appeals

Page 1379

679 P.2d 1379

67 Or.App. 716

Jeanne MOSER, Personal Representative of the Estate of Barbara A. Hampton, Deceased, Appellant, v. Clifford HAMPTON, Respondent and Denise Marie Jayne, Defendant.

No. A8102-01142; CA A27147.

Court of Appeals of Oregon.

Argued and Submitted Nov. 16, 1983.

Decided April 18, 1984.

Michael A. Greene, Portland, argued the cause for appellant. With him on the briefs was Rosenthal & Greene, P.C., Portland.

Anna J. Brown, Portland, argued the cause for respondent. With her on the brief were I. Franklin Hunsaker, R.G. Stephenson and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

This is a wrongful death action arising from a motor vehicle accident involving two vehicles. Decedent, a passenger in the vehicle driven by her husband, died as a result of the accident. Plaintiff, as personal representative of decedent's estate, seeks recovery from decedent's husband, defendant Clifford Hampton, and from the driver of the other vehicle, defendant Denise Jayne. Plaintiff appeals from a judgment dismissing her complaint against Hampton ¹ on the ground of spousal immunity. We affirm.

In the first claim, the complaint alleges that defendants were negligent in the operation of their respective vehicles and were both driving while under the influence of intoxicating liquor. In the second claim, plaintiff realleges the specifications of negligence and intoxication and alleges:

"The acts of defendant Hampton, as stated above, were reckless and in complete disregard of the safety and well-being of Barbara A. Hampton, deceased."

The third claim alleges:

"The acts of defendant Hampton as stated above were in complete disregard of the safety and well-being of Barbara A. Hampton, deceased, and amount to willful misconduct."

Plaintiff makes essentially three arguments for reversal of the judgment. She first argues, under various headings, that the doctrine of spousal immunity should be abolished. Second, she contends that if not abolished, the doctrine does not apply in this case, because defendant Hampton's conduct was reckless or willful misconduct. Third, she contends that the surviving beneficiaries of decedent's estate are the real parties in interest and that application of the doctrine denies them a remedy in violation of Article I, section 10, of the Oregon Constitution.

Plaintiff invites us, by a variety of cogent arguments, to abolish or severely limit spousal immunity. It is not judicial inertia but binding precedent that compels rejection of the invitation. The Oregon Supreme Court has determined that one spouse is immune from an action by the other for nonintentional torts. Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); Kowaleski v. Kowaleski, 227 Or. 45, 361 P.2d 64 (1961); Smith v. Smith, 205 Or. 286, 287 P.2d 572 (1955); Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955). As in Winn v. Gilroy, 61 Or.App. 243, 656 P.2d 386, rev. allowed 294 Or. 792, 662 P.2d 727 (1983), we cannot disregard the controlling precedent.

Plaintiff argues that her complaint states a cause of action for reckless or willful misconduct that is not protected by this doctrine of spousal immunity. The basis of her argument is Apitz v. Dames, supra, and Cowgill, Adm'r v. Boock, Adm'r, 189 Or. 282, 218 P.2d 445 (1950). In Apitz the husband intentionally shot and killed his wife and then committed suicide. The wife's personal representative brought a wrongful death action against the husband's estate. The court held that the doctrine of spousal immunity does not prevent a claim for an intentional tort. The exception to spousal immunity was clearly limited to intentional torts.

Plaintiff argues that Cowgill provides a conceptual basis for recovering in this case. It involved the application of immunity from actions by children against their parents for tortious injury. There, the father, who was intoxicated, refused to allow his 17-year-old son to drive him home and forced the son to ride in the car while he drove. The vehicle was involved in an accident, and both the father and son were killed. The personal representative of the son's estate brought a wrongful death action against the father's estate. In discussing the concept of parental immunity, the court held that there was an exception to the doctrine for willful or malicious misconduct on the part of the parent. The court said:

"The evidence in the instant action certainly shows that the decedent-father was guilty of willful misconduct." 189 Or. at 301, 218 P.2d 445.

In Chaffin v. Chaffin, supra, the court explained its holding in Cowgill:

" * * * [W]e conclude that an act by a parent, whether described as willful or malicious or wanton, which will pierce the veil of parental immunity, is an act which is done with an intention to injure the child or is of such a cruel nature in and of itself as to evidence not a reasonably normal parental mind, but an evil mind, malo animo. * * * " 239 Or. at 387, 397 P.2d 771.

In discussing the necessary allegations of a complaint, the court said:

"We reach the conclusion then that for a petition of a minor child to state a cause of action against a parent, even under the modified rule of Cowgill v. Boock, supra, the complaint must allege facts from which a conclusion can be drawn that the parent committed an act so cruel in its nature as to denote a wicked intent to cause injury to someone." 239 Or. at 388, 397 P.2d 771.

Even assuming that the modified rule of Cowgill respecting parental immunity is readily transferrable to spousal immunity, plaintiff's complaint does not state a claim. The complaint alleges in a conclusory fashion that defendant Hampton's acts amounted to reckless or willful misconduct. The specific allegation of defendant Hampton's conduct control over the general allegation of recklessness or willfulness. Chaffin v. Chaffin, supra. The acts alleged constitute ordinary negligence, with the additional allegation of intoxication. Those specifications are no more than allegations of gross negligence, which is not sufficient to pierce the veil of immunity.

Plaintiff's constitutional argument was answered adversely to her claim in Smith v. Smith, supra.

Affirmed.

VAN HOOMISSEN, Judge, specially concurring.

I concur in the result reached by the majority under the binding precedent cited in the majority opinion. ¹ However, at least to the extent of the claim presented here, that precedent should be reexamined.

The spousal immunity rule is a creature of the common law. It is rooted in a legal fiction that a husband and wife are united as a legal entity under the direction and control of the husband. At common law, a wife could not act legally without her husband's consent, nor could she sue him in tort, no matter how egregious the conduct giving rise to her claim. Erosion of the fiction began with the passage of Married Women's Acts in the early nineteenth century, which gave married women a legal status apart from their husband's. ² Concomitant with that erosion was the development of public policy in favor of immunity. ³ See Garlick, Interspousal Tort Immunity: An Analysis of the Law in Oregon and Washington, 8 Will L J 427 (1972).

Jurisdictions retaining spousal immunity advance a variety of arguments favoring retention, including: (1) unity of spouses on marriage; (2) promotion of family harmony; (3) prevention of collusive or fraudulent claims by spouses; (4) prevention of a large increase in "trivial" claims; (5) adequate redress for injury provided by domestic relations and criminal courts; and (6) the legislative prerogative in abolishing spousal immunity. See Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506, 513 (1983); Moore, The Case for Retention of Interspousal Tort Immunity, 7 Ohio N.U.L.Rev. 943 (1980). None of those arguments justifies the denial of a civil remedy on the evidence here.

The common law notion of marital unity gives little support for retention of immunity on these facts. It perhaps served a function in denying legal equality to women, but that injustice has been remedied. See Apitz v. Dames, 205 Or. 242, 262, 287 P.2d 585 (1955); Davis v. Davis, 657 S.W.2d 753, 754 (Tenn.1983).

The arguments that the rule promotes family harmony and that adequate redress is provided through domestic relations and criminal courts fall of their own weight. Certainly criminal or dissolution action by one spouse against the other have no less an effect on family harmony than civil litigation. Further, spouses may now sue each other for injury to property, breach of contract and intentional torts. Barring action by an injured spouse serves only to deny that person compensation for injuries sustained through the negligence of another. It is the wrongful act, not the subsequent litigation, that causes most familial disharmony. Indeed, knowledge that one may be sued for committing a negligent tort against one's spouse should serve to increase vigilance and to deter such conduct when spouses interact. See Immer v. Risko, 56 N.J. 482, 267 A.2d 481, 488 (1970). Interspousal tort claims often arise from activity, such as operating an automobile, where the defendant spouse has liability insurance. With the threat of financial ruin removed, it is less likely that disharmony will result from litigation. See Tubbs v. Dressler, 435 So.2d 792, 793 (Fla.1983) (immunity waived to extent of negligent spouse's insurance).

As for the fear that trial courts will be deluged with trivial claims, there is no more incentive for spouses, absent collusive actions, to bring trivial actions than for the population generally. See Richard v. Richard, 131 Vt. 98, 300 A.2d 637, 641 (1973). Preventing collusive or fraudulent claims is important. See Smith v. Smith, 205 Or. 286, 311, 287 P.2d 572 (1955). Still, that does not justify the absolute bar imposed by the spousal immunity...