Poepping v. Lindemann

• Citation: 268 Minn. 30,127 N.W.2d 512
• Decision Date: 10 April 1964
• Docket Number: No. 39143,39143
• Court: Supreme Court of Minnesota (US)
• Parties: Olivia POEPPING, Respondent, v. Milton G. LINDEMANN and Fidelity Transfer & Storage Co., defendants and thirdparty plaintiffs, Respondents, and Bernard H. POEPPING as Spec. Admr. of Estate of Bernard Poepping, deceased, defendant and third party defendant, Appellant.

Page 512

127 N.W.2d 512

268 Minn. 30

Olivia POEPPING, Respondent, v. Milton G. LINDEMANN and Fidelity Transfer & Storage Co. defendants and thirdparty plaintiffs, Respondents and Bernard H. POEPPING as Spec. Admr. of Estate of Bernard Poepping, deceased, defendant and third party defendant, Appellant.

No. 39143.

Supreme Court of Minnesota.

April 10, 1964.

Syllabus by the Court

A wife was a cause of action arising out of bodily injury caused by the negligence of her deceased husband which may be asserted against his personal representative.

Peterson, Bell & Converse, St. Paul, for appellant.

Quigley, Quigley & Murphy, St. Cloud, Robert G. Johnson, Willmar, Quinlivan, Quinlivan & Williams, St. Cloud, for respondents.

SHERAN, Justice.

Appeal from an order of the district court denying appellant's motion for summary judgment and certifying the question of law as important and doubtful.

The Honorable Rol E. Barron states in his memorandum made a part of the order:

'The question presented is: May a surviving spouse maintain an action herself against the estate of a decedent spouse for his alleged negligence?

'It is settled that the Married Women's Act, M.S.A. 519 et seq. does not authorize tort actions by one spouse against another. Karalis v. Karalis, 213 Minn. 31, 4 N.W.2d 632.

'This case raises nothing beyond previous Minnesota decisions, except the effect of the survival statute, Sec. 573.01. Under similar statutes other jurisdictions have held that a wife's cause of action for a negligent tort does survive against the estate of her deceased husband; that intra-family immunity is no more than a procedural disability to sue; and that upon his death, the disability vanishes, and the cause of action which has existed may be maintained against his estate.'

The proposition that a wife cannot sue her husband for damages caused by his negligence has been long established in Minnesota. ¹ The rule applies to torts occurring before the marriage where action is commenced while the parties are husband and wife, ² and to actions instituted after divorce for torts occurring while the marital relationship was in existence. ³ It has been considered so reflective of the public policy of the state as to prevent assertion of such a claim in the courts of Minnesota even where the tort occurred in a state permitting such suits. ⁴

If injury inflicted by one spouse on the other does not give rise to a cause of action, the subsequent death of the person inflicting injury cannot create the basis for a claim for damages. A cause of action arising out of bodily injuries or death caused by the negligence of a decedent survives against his personal representative by virtue of Minn.St. 573.01, but that which never existed cannot be said to survive. On the other hand, if the spouse, while living, 'has an immunity from liability as distinguished from a privilege of acting,' ⁵ a different result might follow. The rule barring suit by one spouse against another would not operate in favor of the representative of the estate of a deceased spouse unless the policy giving rise to the bar compels such a result.

These considerations bring us to an analysis of the relevant Minnesota decisions. In holding that a woman divorced from her husband could not sue him for a tort occurring during coverture, this court held implicitly that the tort did not give rise to a cause of action. Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A.,N.S., 191. Were it otherwise, the severance of the marital relation should have lifted the bar to suit. It can be argued, as plaintiff does, that to permit suit after divorce, but not before, would be to undermine the public policy served by stability of the marriage relationship. But this consideration, while adequate to justify the result in the Strom case, was not mentioned in the opinion as a reason for it. On the other hand, the court in the Strom case did not deal expressly with the distinction between the absence of cause of action and a bar to its assertion.

In Miller v. J. A. Tyrholm & Co., Inc., 196 Minn. 438, 265 N.W. 324, decided in 1936, 30 years after the Strom case, the court was called upon to consider whether a wife, injured by her husband's negligence while driving the automobile of a third person, with his consent, could recover from the latter. The claimed liability of the owner was based on L.1933, c. 351, § 4, (Minn.St. 170.54) providing that when a motor vehicle is operated 'by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, Be deemed the agent of the owner of such motor vehicle in the operation thereof.' (Italics supplied.) The effect of the statute, as stated in Karalis v. Karalis, 213 Minn. 31, 4 N.W.2d 632, was to create the relationship of principal and agent between the owner of an automobile and the person driving it with his consent. Because in such case the principal's liability is vicarious only, ⁶ the determination made in Miller that the wife could assert a cause of action against the owner, 'deemed' (because of the statute) to be the principal of her husband, is inconsistent with the theory that the doctrine of marital immunity prevents a cause of action from arising when one is injured by the other. And although a distinction is to be noted between a case where one is 'deemed' the agent of another because of statutory directive and a case where the agency exists in fact, the reasoning of the court in the Miller case suggests that the difference, while recognized, was not the basis for decision. In support of its conclusion, the court quoted (196 Minn. 445, 265 N.W. 327) Restatement, Agency, § 217, which reads:

'(2) A master or other principal is not liable for acts of a servant or other agent which the agent is privileged to do although the principal himself would not be so privileged; but he may be liable for an act as to which the agent has a personal immunity from suit.

'Comment.

'b. If a principal has a personal privilege which cannot be shared by another, he cannot of course confer this privilege upon an agent so as to escape liability for the agent's act. * * * if an agent has an immunity from liability as distinguished from a privilege of acting, the principal does not share the immunity. Thus, if a servant, while acting within the scope of employment, negligently injures his wife, the master is subject to liability.'

The court also cited (196 Minn. 443, 265 N.W. 327) with apparent approval McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 191, 146 So. 877, 879, where it was said with respect to the right of a wife to recover damages for tort from her husband:

'* * * She is merely denied a remedy; this does not destroy the right of action against the master.'

Reference was also made (196 Minn. 443, 265 N.W. 327) to Chase v. New Haven W.M. Corp., 111 Conn. 377, 382, 150 A. 107, 108, where it was stated:

'* * * 'Public policy may exempt the husband or parent from an action by the wife or child directly against him for his negligent act. There is no rule of law and no public policy which would exempt the employer."

We note, too, that in the Miller case (196 Minn. 442, 265 N.W. 326) the court apparently agreed with that part of the decision in Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 256, 164 N.E. 42, 43, 64 A.L.R. 293, where it is stated with respect to an injury to a wife caused by her husband:

'* * * A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity.'

The Miller case does not specifically overrule the Strom case but the implicit...