Peggy Baker Estes v. Phillip Estes

• Decision Date: 19 October 1984
• Docket Number: WD-84-36,84-LW-4168
• Parties: Peggy Baker ESTES, Appellant, v. Phillip ESTES, Appellee.
• Court: United States Court of Appeals (Ohio)

Peggy Baker ESTES, Appellant, v. Phillip ESTES, Appellee.

No. WD-84-36.

84-LW-4168 (6th)

Court of Appeals of Ohio, Sixth District Wood

October 19, 1984

Appeal from Wood County Common Pleas Court No. 82-CIV-299.

DECISION AND JOURNAL ENTRY

This cause came on to be heard upon the record in the trial court. Each assignment of error was reviewed by the court and upon review the following disposition made:

This cause comes on appeal from a decision of the Wood County Court of Common Pleas. By summary judgment rendered on March 9, 1984, the trial court dismissed appellant's complaint. From said decision, appellant sets forth two assignments of error:

"1.The doctrine of interspousal immunity is violative of the equal protection clause of the Ohio and United States Constitutions, is therefore unconstitutional and furthermore has no application to acts which occurred before the marriage.

"2.The Defendant waived the right to claim interspousal immunity as a defense by his insurance company's agents acts and declarations."

The pertinent facts of this action are not in dispute. On August 8, 1980, plaintiff-appellant was injured in an automobile accident while a passenger in the vehicle negligently operated by defendant-appellee. At the time, appellant, Peggy Baker Estes was engaged to be married to appellee Phillip Estes.

After the accident, but prior to the filing of a complaint appellant and appellee were married. Appellant filed a lawsuit in the Wood County Court of Common Pleas on August 6, 1982, seeking recovery of damages for personal injuries, lost wages and medical expenses from appellee Phillip Estes. On motion for summary judgment, the trial court dismissed the complaint as barred by the doctrine of interspousal immunity.

Appellant, by her first assignment of error, raises two separate issues that may be dispositive of this appeal: (1) that the interspousal immunity doctrine violates the Equal Protection Clause of the Ohio and United States Constitutions; and (2) the immunity doctrine does not apply to acts which occur prior to marriage.

Appellant's first assignment of error raises serious questions as to the efficacy of the interspousal immunity doctrine, especially when it is expanded to encompass premarital negligent acts.

The interspousal immunity doctrine was concisely defined in the syllabus of Lyons v. Lyons (1965), 2 Ohio St.2d 243:

"A spouse may not maintain an action against the other spouse for personal injuries resulting from the negligence of the other spouse where the married parties are living together as husband and wife at the time of the alleged injury." (Citations omitted).

In Lyons, the court found that a husband was barred from recovering damages in an action against his wife for injuries sustained by her negligent operation of a motor vehicle. Id. In finding that the Ohio Married Women's Property Act ®1¯ did not relieve all common law immunities, the court in Lyons enunciated three distinct policy reasons for maintaining the doctrine of interspousal immunity: (1) the preservation of marital harmony; (2) the prevention of fraud or collusion, and in summation, the court added a third element by stating:

"This court is not convinced that a useful purpose would be served in overthrowing the rule of interspousal immunity from suit so well established in a majority of jurisdictions in this country. If there is to be a change in the public policy of the state in this regard, it should come from the General Assembly." (Citations omitted.)

See also Varholla v. Varholla (1978), 56 Ohio St.2d 269, 270; Bonkowsky v. Bonkowsky (1982), 69 Ohio St.2d 152, 153, cert. denied (1982), 457 U.S. 1135.

The doctrine of interspousal immunity and its policy foundation was held to apply to premarital negligent conduct in Thomas v. Herron (1969), 20 Ohio St.2d 62. In Thomas, the Supreme Court of Ohio upheld the dismissal of a cause of action when the parties were married 17 days after the negligent act in question. Id., at 67-68. After a summary of the policy principles set forth in Lyons, supra, the court in Thomas applied the immunity doctrine stating:

"Although the policy which favors allowing every person to be compensated for his injuries (see Signs v. Signs [1952], 156 Ohio St. 566), as well as that which recognizes each spouse as sui juris (Damm v. Elyria Lodge [1952], 158 Ohio St. 107), militates against interspousal immunity, the factors previously discussed require the extension of the doctrine announced in Lyons to the situation presented here."

A condition precedent to our review of this appeal is the question of whether the interspousal immunity doctrine is properly reviewable by the judiciary or is a matter which requires legislative enactment. We find it a paradox to judicially establish a common law doctrine, supported by judicial perceptions of a social institution, and then require legislative action to abrogate the doctrine.

Recently, the Supreme Court of Ohio has shown little reticence in abolishing similar common law exceptions to general tort liability in discarding the doctrine of charitable immunity, governmental immunity for municipally owned hospitals, and the interspousal immunity doctrine as applied to wrongful death actions. Albritton v. Neighborhood Assn. (1984), 12 Ohio St.3d 210; Sears v. Cincinnati (1972), 31 Ohio St.2d 157; Prem v. Cox (1983), 2 Ohio St.3d 149. Nor has the interspousal immunity doctrine withstood judicial scrutiny when this court found the doctrine's policy basis did not justify application to intentional torts. Green v. Green (1982), 4 Ohio App.3d 133; see also Kobe v. Kobe (1978), 61 Ohio App.2d 67.

It is abundantly clear that the immunity doctrine is a common law rule created by a judiciary and its perceptions of social policy. Therefore, the interspousal immunity doctrine must be subject to the judicial scrutiny as advocated by a substantial number of jurisdictions.®2¯ In Lewis v. Lewis (1976), 370 Mass. 619, 351 N.E.2d 526, at 531, the Supreme Judicial Court of Massachusetts stated:

"[I]t is within the power and authority of the court to abrogate this judicially created rule; and the mere longevity of the rule does not by itself provide cause for us to stay our hand if to perpetuate the rule would be to perpetuate inequity. When the rationales which gave meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula."

Further, the Supreme Court of Ohio in Sears, supra, at 161, endorsed the reasoning of Gibson, J., in his decision rendered in Hack v. Salem (1963), 174 Ohio St. 383, wherein he states:

" " * * * Admittedly the General Assembly has the authority to change or abolish the rule of immunity created by this court for municipal corporations in regard to their so-called governmental functions, but that in no way precludes this court from changing its own rule. * * * ' "

The effect of contemporary judicial scrutiny of the interspousal immunity doctrine has been marked. At the present, a majority of 32 jurisdictions have abolished the common law interspousal immunity doctrine.®3¯ When written in 1965, the Supreme Court of Ohio in Lyons, supra, at 245, identified only 5 jurisdictions that had abrogated the immunity doctrine.®4¯

To date, there has been no constitutional examination of the propriety of interspousal immunity and its application to premarital torts. In the face of the continued loss of substantial individual rights, we find that the proper procedure in the instant case is to apply the logical approach advanced in Thomas v. Herron, supra, at 66-67; "The proper inquiry is whether the reasons which defeated the maintenance of the suit in Lyons are likewise valid to deny a suit between spouses living together, based on negligence, for an injury received prior to that marriage."

For premarital torts, the policy reason of preserving marital harmony creates two obvious contradictions. Initially, one might point out that through all the supposed problems raised by the negligent act, each of the parties retained sufficient affection to finalize the marriage. Secondly, the application of the immunity doctrine to premarital negligent acts promotes an antithesis to the stated purpose of preserving marital harmony: to wit; the correct legal advice to individuals such as the parties herein, would be to postpone the wedding day until the cause of action and insurance claims are resolved. Or, if the parties are presently married and the claim is substantial, an action may be maintained so long as a divorce is obtained prior to filing the complaint.®5¯ As such, interspousal immunity acts in the exact opposite manner by promoting separation rather than marital bliss. Finally, the preservance of marital harmony in this instance seems to be a dated proposition, as the spouse may now sue on contract and property actions.®6¯

The second policy reason for the doctrine of interspousal immunity is to avoid fraud and collusion. The allegations in the cause sub judice illustrate that, for premarital negligent acts, such fraud prevention can necessarily be a "two-edged sword." In the instant case, it is alleged that appellee's insurance agent was aware of, and awaited appellant's marriage prior to terminating communication.®7¯ Thus, the subsequent legal action was dismissed based upon appellant's marital status. What such allegations illustrate is the hitherto unmentioned possibility of harmful and collusive effects that the interspousal immunity doctrine might have on individuals who deal through insurance...