Mosier v. Carney

• Decision Date: 01 January 1964
• Docket Number: Nos. 11,s. 11
• Parties: Charles B. MOSIER, Administrator of the Estate of Maxine Symons Carney, Deceased, Plaintiff and Appellant, v. Admiral Equall CARNEY and John Akers, Defendants and Appellees. Mamie Solomon SMITH, Plaintiff and Appellant, v. Willa Mae KING, Administratrix of the Estate of John P. Smith, Deceased, Defendant and Appellee. Bernard DOOD, Plaintiff and Appellant, v. Dorothy MOSHER, Defendant and Appellee. ,
• Court: Michigan Supreme Court

Page 343

138 N.W.2d 343

376 Mich. 532

Charles B. MOSIER, Administrator of the Estate of Maxine

Symons Carney, Deceased, Plaintiff and Appellant, v. Admiral Equall CARNEY and John Akers, Defendants and Appellees.

Mamie Solomon SMITH, Plaintiff and Appellant, v. Willa Mae KING, Administratrix of the Estate of John P.

Smith, Deceased, Defendant and Appellee.

Bernard DOOD, Plaintiff and Appellant, v. Dorothy MOSHER, Defendant and Appellee.

Nos. 11, January Term, 1964, 56, April Term, 1964, 52,

January Term, 1965.

Supreme Court of Michigan.

Dec. 7, 1965.

[376 Mich. 540] Leitson, Dean, Dean & Abram, Flint, for Charles B. Mosier, Adm'r.

John Bove, Flint, for Admiral Equell Carney, and others.

[376 Mich. 541] Adams & Wade, Detroit, for Mamie Solomon Smith.

Howlett, Hartman & Beier, Pontiac, for Willa Mae King.

Hayes & Davis, Grand Rapids, for Bernard Dood.

Luyendyk, Hainer, Hillman, Karr, & Dutcher, Grand Rapids, for Dorothy Mosher.

Before the Entire Bench.

[376 Mich. 542] SOURIS, Justice.

Four times in the published reports of this Court we have directly or indirectly denied the right of one spouse to sue the other for recovery of damages for injuries resulting from an interspousal negligent tort. ¹ We said that at common law such

a suit could not be maintained, and we found no statute which we thought would authorize such a suit. That the time has come for a reconsideration of this area of the law is indicated by the fact that we now are called upon to decide these three cases, each originating in a different circuit court and each involving the successful assertion of the doctrine of interspousal tort immunity as a defense. In view of the importance of the legal principles involved, we requested the negligence law section of the State bar association to submit a brief amicus. Indicative of the present ambivalence of thought upon this question is the fact that two briefs were in fact submitted by the bar, one advocating and the other opposing the repudiation of the defensive doctrine of interspousal tort immunity. We acknowledge their assistance in our resolution [376 Mich. 543] of the issue as presented by the three cases before us for decision

At the outset we note that the felt need for re-examination of the common law defense of interspousal tort immunity has not been confined to Michigan. Indeed, at least 32 jurisdictions either have completely, or at least in certain fact situations, abolished the defense. A sampling of such cases is collected in the appendix which follows this opinion. We note also that the common law doctrine has received virtually universal excoriation from the legal scholars who have given consideration to it. See the selective bibliography included in the appendix.

While most of the cases cited in the appendix which have rejected the common law doctrine purport to base their holdings upon so-called married women's acts, it is evident from many of the opinions that the courts had cconcluded that the immunity defense no longer had any valid basis in logic, fact or policy. The fact that virtually the same statutory language is subject to varying interpretations by these courts suggests strongly that the actual basis for many of their decisions is a reappraisal of the common law and its rejection because no longer applicable to the facts of modern civilization.

We shall pursue a more forthright course in our disposition of the cases at bar. Since the doctrine of interspousal tort immunity is a creation of the common law and since such doctrine has never been codified in this State, it is our duty to re-examine it and, if necessary to avoid continuing injustice, to change it. ² We shall analyze our four pertinent precedents and, in our effort to understand them, we [376 Mich. 544] shall examine in the process other earlier decisions of our own and other courts. 'To the Reader my Advice is, that in Reading of these or any new Reports, he neglect not in any Case the Reading of the old Books of Years reported in former Ages, for assuredly out of the old Fields must spring and grow the new Corn'. ^2a

I.

In Bandfield v. Bandfield (1898), 117 Mich. 80, 75 N.W. 287, 40 L.R.A. 757, the first of our four precedents, plaintiff married defendant in 1879, obtaining a divorce from him in 1897. Thereafter she began suit to recover damages from defendant for infecting her with a veneral disease in 1893. In affirming dismissal of her suit on demurrer, this Court briefly considered and rejected as inapplicable the legislature's modifications of the legal consequences of the marital relation as embodied in the married women's acts.

The Court based its decision upon the following expressed considerations:

'The result of plaintiff's contention would be another step to destroy the sacred relation of man and wife, and to open the door to lawsuits between them for every real and fancied wrong,--suits which the common law has refused on the ground of public policy. This court has gone no further than to support the wife, under the married woman's act, in protecting her in the management and control of her property. It has sustained her right to an action for assault and battery, for slander, and for alienation of her husband's affections against others than her husband. Berger v. Jacobs, 21 Mich. 215; Leonard v. Pope, 27 Mich. 145; Rice v. Rice, 104 Mich. 371, 62 N.W. 833. At the same time, it has held that the wife [376 Mich. 545] could not enter into a partnership or other business with her husband, and thus become responsible for the contracts and debts of her husband. Artman v. Ferguson, 73 Mich. 146, 40 N.W. 907 (2 L.R.A. 343, 16 Am.St.Rep. 572); Edwards v. McEnhill, 51 Mich. 160, 16 N.W. 322. Personal wrongs inflicted upon her give her the right to a decree of separation or divorce from her husband, and our statute have given the court of chancery exclusive jurisdiction over that subject. This court, clothed with the broad powers of equity, can do justice to her for the wrongs of her husband, so far as courts can do justice, and, in providing for her, will give her such amount of her husband's property as the circumstances of both will justify, and, in so doing, may take into account the cruel and outrageous conduct inflicted upon her by him, and its effect upon her health and ability to labor. 2 Am. & Eng. Enc. Law (2d Ed.) 120; 2 How.Ann.St. § 6245. In the absence of an express statute, there is no right to maintain an action at law for such wrong. We are cited to no authority holding the contrary. We cite a few sustaining the rule: Abbott v. Abbott, 67 Me. 304 (24 Am.Rep. 27); Freethy v. Freethy, 42 Barb. 641; Peters v. Peters, 42 Iowa, 182; Schultz v. Schultz, 89 N.Y. 644; Cooley, Torts, (2d Ed.) p. 268; Schouler, Dom.Rel. § 252; Newell, Defam. p. 366; Townsh. Sland. & L. (3d Ed.) p. 548 § 300.' 117 Mich. 80, 82-83, 75 N.W. 287, 288.

The Court's fear of frivolous suits hardly seems to be a realistic one. Thus, with regard to torts based upon an allegation of negligent conduct during marriage, the fact finder would be quite justified in taking into account the fact that the alleged negligent conduct occurred during marriage. Negligence is, after all, basically a question of reasonable behavior in the circumstances, and it may well be that conduct which would be actionably negligent as between strangers would not be so as between spouses.

[376 Mich. 546] 'It must be true that when a man and woman marry their reciprocal rights and duties are different toward each other than toward third persons. The extent of the difference under the existing law must be developed by time and experience.' Wait v. Pierce (1926), 191 Wis. 202, 209 N.W. 475, 480, 48 A.L.R. 276.

'Undoubtedly there is conduct torious when engaged in by a third person, which would not be tortious between husband and wife because of the mutual concessions attending their relationship and implied in the marriage contract.' Courtney v. Courtney (1938), 184 Okl. 395, 87 P.2d 660, 669.

We shall not comment upon Bandfield's somewhat ludicrous juxtaposition of the argument that interspousal tort suits should not be permitted because of their potential for disruption of marital harmony with the helpful hint that, while one who has been tortiously injured by his spouse should not

be permitted to disrupt the marriage relation by suing for damages, he may nonetheless achieve redress by means of a divorce. ³ Not only is that argument absured, but also it is patently legally faulty, insofar as it suggests that alimony may be awarded to compensate for a tortious personal injury which has not [376 Mich. 547] impaired the injured spouse's ability to labor. 2 How.Stat. § 6245 specifically provided that 'if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate real and personal, to be paid to her in gross or otherwise as it shall deem just and reasonable having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case.' Alimony was at the time of Bandfield, and is today (C.L.S.1961, § 552.23, as last amended by P.A.1964, No. 11 [Stat.Ann.1964 Current Material § 25.103]), a device whereby a spouse was obliged to discharge an obligation of support, and not a means of recompensing one spouse for tortious injuries endured during marriage. See Cummings v. Cummings (1883), 50 Mich. 305, 15 N.W. 485; Johnson v. Johnson (1956), 346 Mich. 418, 78 N.W.2d 216

It is also of interest to note that two of the three jurisdictions cited by Bandfield in support of its holding have since modified their positions. New York now permits by statute interspousal suits, while Maine permits the defendant in a negligence suit by a wife...