Moulton v. Moulton

• Decision Date: 05 September 1973
• Citation: 309 A.2d 224
• Parties: Marsha J. MOULTON v. Wayne MOULTON.
• Court: Maine Supreme Court

Page 224

309 A.2d 224

Marsha J. MOULTON v. Wayne MOULTON.

Supreme Judicial Court of Maine.

Sept. 5, 1973.

Vafiades, Brountas & Kominsky by Eugene C. Coughlin, Lewis V. Vafiades, Bangor, for plaintiff.

Mitchell & Ballou by John W. Ballou, Bangor, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

On August 31, 1968 plaintiff, Marsha J. Moulton, then Marsha J. Smith, was riding as a passenger in an automobile operated by a friend, Wayne Moulton, who is the defendant in the present action. The automobile became involved in a collision resulting in personal injuries to the plaintiff.

On January 18, 1969, plaintiff and defendant became husband and wife.

Two years later, while still married to Wayne Moulton, plaintiff instituted against him the instant civil action alleging that his negligent operation of the automobile on August 31, 1968 was responsible for the serious bodily injuries she had sustained. ¹ Defendant filed a motion for summary judgment of dismissal, attaching documentary proof that the plaintiff and defendant were husband and wife. Pursuant to Rule 72 M.R.C.P., the case has been reported to this Court for decision of the rights of the parties.

It has long been settled in the law of Maine that tortious conduct occurring during the marriage relationship by one spouse against the other creates no cause of action. This proposition has been fully explained in Abbott v. Abbott, 67 Me. 304 (1877). It has been frequently affirmed in decisions including: Smith v. Gorman, 41 Me. 405 (1856); Libby v. Berry, 74 Me. 286 (1883); Sacknoff v. Sacknoff, 131 Me. 280, 161 A. 669 (1932).

The principle is supported on two grounds. First, the common law merged two human beings, once they had become husband and wife, into a single legal person; and if only one legal person is involved as tort feasor and victim, by the logic of this situation no cause of action can arise. Second, as fully discussed in Abbott v. Abbott, supra, there is the independent public policy consideration, deemed overriding, that as to tortious conduct between husband and wife occurring during their marriage relationship, to encourage marital harmony

"it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive." (p. 307 of 67 Me.) ²

When, however, a marriage relationship is absent, the principle is too elementary to require citation of authority that tortious conduct by one person toward another (absent other unique factors) gives rise to a cause of action.

In the case at bar, then, during the period between August 31, 1968 and January 18, 1969 when the parties were unmarried, plaintiff had an independent cause of action for tort against defendant for which plaintiff could have commenced and maintained a civil action to achieve a judgment-surely, so long as all had transpired prior to the date of the marriage, January 18, 1969.

The narrow issue here precipitated concerns the legal effect upon plaintiff's independently existing cause of action, and her right to vindicate it by a civil suit, which results from the supervention of her marriage to defendant.

Quoting from a dictum in Anthony v. Anthony, 135 Me. 54, 188 A. 724 (1937):

'(s)uits between spouses, with certain exceptions . . . (not including, as specified in Anthony v. Anthony, suits at law for tort) are not authorized in Maine' (p. 55, 188 A. p. 724),

defendant contends that

'the language of our Maine cases makes it abundantly clear that suits of the nature of that involved in this case do not lie.' (emphasis supplied)

If, however, the instant case is to be held precedentially controlled by prior Maine cases, the 'language' of the cases is not determinative. The 'language' must be evaluated in strict relationship to the precise factual situations to ascertain the decisions, since only the decisions impose the constraints of 'stare decisis.'

By such analysis, we discern that prior Maine cases, as called to our attention by defendant or disclosed by independent research, and in which, relative to actions of tort, may be found general language that one spouse is disabled from suing the other during the marriage, the tortious conduct upon which the action was based had occurred during the marriage relationship. Thus, on the facts of these cases, the broad language of 'disability' is dictum; the cases decided only the principle, stated at the commencement of this opinion, that tortious conduct occurring during marriage by one spouse toward the other fails to create a common law cause of action.

The same language has appeared, however, in other Maine cases which pertain to conduct concerning contractual matters occurring before the marriage, Carlton v. Carlton, 72 Me. 115 (1881), as well as during the marriage: Crowther v. Crowther, 55 Me. 358, 359 (1868); Webster v. Webster, 58 Me. 139, 144, 145 (1870); Blake v. Blake, 64 Me. 177, 182, 183 (1874); Hobbs v. Hobbs, 70 Me. 381, 383 (1879); Morrison v. Brown, 84 Me. 82, 83, 24 A. 672 (1891); Perkins v. Blethen, 107 Me. 443, 446-448, 78 A. 574 (1911); Mott v. Mott, 107 Me. 481, 483, 78 A. 900 (1911).

By force of the variously enacted married woman's separate property statutes, the common law doctrine that marriage deprives a woman of separate property (whether acquired before or during marriage) has been abrogated; and, for this purpose,

"property' includes choses in action as well as choses in possession. . . . In its broadest sense it includes every thing which goes to make up one's wealth or estate.' Carlton v. Carlton, supra, at p. 116 of 72 Me.

Hence, in all of the foregoing contract cases-regardless of whether the conduct occurred before or during marriage and because the conduct concerned contractual rights-a cause of action undoubtedly came into existence preserved to the wife as her separate property. Yet, notwithstanding that the wife was thus the owner of a cause of action (contract) against her husband, the above cases reiterate the principle that were the husband and wife allowed to be two opposed parties to a common law action, the common law conception of the husband and wife as a single legal personality would be contravened.

The language to this effect is fairly to be considered dictum in most of the abovementioned cases in which the facts were that the marriage relationship had been terminated either by divorce or death and the decision was that, for this reason, the action by one spouse against the other would lie.

In three of the cases, however, Crowther v. Crowther, Hobbs v. Hobbs and Perkins v. Blethen, even though the Court acknowledged the existence of a cause of action, was action by one spouse against the other was held barred on the rationale that, logically deriving from the common law principle that husband and wife are one legal person, is the consequence that husband and wife are disabled from constituting the two legal persons necessary to a common law action.

In the evaluation of whether continued precedential vitality should be accorded to this aspect of the decisions of the above three cases, we observe, initially, that subsequent changes in our legal system have materially diminished the cogency of particular facets of the reasoning utilized in them.

First, the circumstances in which arrest (and imprisonment), whether on mesne process or execution, are now available are so narrowly restricted that, for all practical purposes, this mechanism is virtually extinct as an incident of the commencement and maintenance of civil actions. Hence, no longer need we be disturbed by the concern expressed in Crowther v. Crowther, supra, that authorization of common law actions between husband and wife would be intolerable insofar as it could render of frequent occurrence the unseemly spectacle of husband and wife arresting and imprisoning each other.

Second, since 1960 our civil jurisprudence has been functioning under a structure in which common law forms of action have been abolished and law and equity are merged in the same Court which proceeds under a single system of practice utilizing a single form of action as to which

'. . . historical ancestry whether legal or equitable is of no moment. . . .'

and

'(a) party makes known in his demand for relief what it is that he wants, and in obtaining it he is not shackled by the formalisms of the common law or the niceties of equity procedure.' Field, McKusick & Worth, Maine Civil Practice, § 2.1, p. 35

The overriding importance previously attributed to the distinction between law and equity (so heavily relied upon in Perkins v. Blethen, supra) has thus been markedly attenuated. Presently, husbands and wives who would seek to enforce against each other causes of action sounding traditionally at common law would utilize the same Court, the same form of action and the same procedure as do husbands and wives who have always been entitled to enforce against each other causes of action sounding in equity. In the face of these facts, were we to persist in denying to husbands and wives requisite capacity to become parties adverse to each other solely on the ground that the causes of action they seek to enforce against each other sound at common law, we should indeed be contradicting the spirit of the merger of law and equity; we should stubbornly, hollowly and...