Price v. Price

• Decision Date: 24 June 1987
• Docket Number: No. C-5958,C-5958
• Citation: 732 S.W.2d 316
• Parties: Kimberly Parmenter PRICE, Petitioner, v. Duane PRICE, Respondent.
• Court: Texas Supreme Court

Page 316

732 S.W.2d 316

56 USLW 2056

Kimberly Parmenter PRICE, Petitioner, v. Duane PRICE, Respondent.

No. C-5958.

Supreme Court of Texas.

June 24, 1987.

Marvin B. Zimmerman and Gail Kay Zimmerman, Law Offices of Marvin B. Zimmerman, San Antonio, for petitioner.

Timothy Patton, Groce, Locke & Hebdon, San Antonio, for respondent.

KILGARLIN, Justice.

This case presents us with the opportunity to re-examine the validity of the doctrine of interspousal immunity. The case originated as a civil action of negligence for personal injuries brought by Kimberly Parmenter Price against her husband, Duane Price. Duane Price's motion for summary judgment was granted. The court of appeals affirmed that judgment. 718 S.W.2d 65. We reverse the judgment of the court of appeals and remand this cause to the trial court.

In July of 1983, Kimberly Parmenter, at the time a feme sole, was injured when a motorcycle on which she was riding collided with a truck. The motorcycle was driven by Duane Price. Six months after the accident, Duane and Kimberly were married. After marriage, Kimberly brought this action seeking recovery from her husband, Duane, and from the driver of the truck, claiming that the negligence of these drivers had caused her injuries. The driver of the truck and his employer settled. The trial court, in granting summary judgment for Duane, relied on the doctrine that one spouse could not sue another for negligent conduct.

The doctrine of interspousal immunity is a part of the common law, having been judicially created. Its origins are shrouded in antiquity, but the basis of the doctrine is "that a husband and wife are one person." Firebrass v. Pennant, 2 Wils. 255, 256 (C.P. 1764) (emphasis in original).

A woman's disability during coverture was an essential ingredient in fostering the doctrine. As was stated in Thompson v. Thompson, 218 U.S. 611, 614-15, 31 S.Ct. 111, 54 L.Ed. 1180 (1910):

At common law the husband and wife were regarded as one,--the legal existence of the wife during coverture being merged in that of the husband; and, generally speaking, the wife was incapable of making contracts, of acquiring property or disposing of the same without her husband's consent. They could not enter into contracts with each other, nor were they liable for torts committed by one against the other (emphasis added).

An earlier thesis on American law expanded the concept of superiority of the husband over the wife even to the extent of restraining her liberty or disciplining her. 2 Kent's Com. 174 (8th ed. 1854). While in this, the last quarter of the twentieth century, such views seem preposterous, recognition that those views were prevalent in the law makes easily understandable why suits by wives against husbands were not permitted.

However, the husband/wife unity argument as grounds for the doctrine was severely impeded by the adoption of what were known as Married Women Acts. These legislative acts occurred principally in the latter half of the nineteenth century and early twentieth century. See, e.g., 1877 Conn.Pub.Acts c. 114; Ga.Code Ann. § 7142 (1913); 1949 Kan.Sess.Laws 23-20 (1868); Mass.Gen.L. ch. 209 §§ 1-13 (1845); Mo.Rev.Stat. §§ 1735 & 8304 (1909); Mont.Code Ann. §§ 1439-1441 (1887); 1893 Pa.Laws 345 § 3; and 1913 Tex.Gen.Laws ch. 32, p. 61. These acts, while varying from state to state, generally gave wives the rights to own, acquire and dispose of property; to contract; and, to sue in respect to their property and contracts. Most importantly, many of the statutes specifically abolished the doctrine of the oneness of husband and wife.

With the demise of the legal fiction of the merger of husband and wife into a single entity, the doctrine of interspousal immunity found support in considerations of marital harmony, as well as the potential for collusive lawsuits. Restatement (Second) of Torts § 895F, comment d (1979).

American jurisdictions, in upholding the doctrine, early on espoused the premise that a civil suit by one spouse against another would destroy the harmony of the home. One court, in a fire and brimstone opinion upholding the prohibition against suits between spouses, foresaw all manner of evil should the immunity doctrine be terminated. In Ritter v. Ritter, 31 Pa. 396 (1858), that court, while observing that a favorite maxim at common law was that marriage makes a man and woman one person at law, also said:

Nothing could so complete that severance [of the marriage relationship] and degradation, as to throw open litigation to the parties. The maddest advocate for woman's rights, and for the abolition on earth of all divine institutions, could wish for no more decisive blow from the courts than this. The flames which litigation would kindle on the domestic hearth would consume in an instant the conjugal bond, and bring on a new era indeed--an era of universal discord, of unchastity, of bastardy, of dissoluteness, of violence, cruelty, and murders.

The second argument for barring interspousal suits, the possibility of collusive lawsuits, is entirely inconsistent with the subjugation of wife to husband and preservation of happy homes theses. Nevertheless, such inconsistency did not seem to trouble the courts. The possibility of collusion was alluded to in Abbott v. Abbott, 67 Me. 304 (1877), where it was suggested that a widow could raid her deceased husband's estate by claiming all sorts of wrongs by him during his lifetime. The fraud theory expanded into vogue with the advent of insurance to cover vehicular accidents. In Newton v. Weber, 119 Misc.Rep. 240, 196 N.Y.S. 113, 114 (1922), the court said of allowing a tort action by a wife against her husband, "[t]he maintenance of an action of this character, unless the sole purpose be a raid upon an insurance company, would not add to conjugal happiness and unison."

Without ascribing any reasons for doing so, Texas adopted the doctrine of interspousal immunity one hundred years ago in Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886), citing as authority only Cooley on Torts, Peters v. Peters, 42 Iowa 182 (1875), and Langendyke v. Langendyke, 44 Barb. 366 (N.Y.1863). Nickerson barred all civil actions for tort between husband and wife.

Neither Cooley nor either case relied upon offered logic for the doctrine. Those authorities merely stated that the law forbade suits by one spouse against the other for personal injuries.

The doctrine remained firmly established as Texas law until Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977). Bounds abrogated the rule as to intentional torts. In Bounds, this court concluded that suits for willful or intentional torts would not disrupt domestic tranquility since "the peace and harmony of a home" which had "been strained to the point where an intentional physical attack could take place" could not be further impaired by allowing a suit to recover damages. Id. at 927.

Is there today any policy justification for retaining this feudal concept of the rights of parties to a marriage? Apparently, our colleagues on the Court of Criminal Appeals have decided "no" in respect to the marital discord argument. With their September 1, 1986 promulgation of Tex.R.Crim.Ev. 504, that court abolished the long-standing rule that one spouse could prevent the other from voluntarily giving testimony in a criminal prosecution. The Fourth Court of Appeals also questioned the justification of the policy when it observed:

[W]hile the new legislation [the Married Women Acts] forced recognition of the rights of a married woman to recover from her husband if he broke the leg of her mule, the courts continued to clothe him with immunity if he tortiously broke his wife's leg.

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It has never been satisfactorily explained how permitting the wife to recover for her husband's conduct which tortiously injures her property would not disrupt domestic harmony, while allowing her to recover for bodily injury would.

Sneed v. Sneed, 705 S.W.2d 392, 394 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.).

It was likewise that court, in upholding the summary judgment in this case, that said:

Although neither courts nor commentators have satisfactorily explained how denying relief to the injured spouse will promote harmony, we are constrained to follow the unambiguous, if indefensible, precedent set by Nickerson and Bounds.

718 S.W.2d at 66.

Dean William Prosser, a preeminent commentator on tort law, certainly agreed that the doctrine is indefensible. He has stated:

Stress has been laid upon the danger of fictitious and fraudulent claims, on the very dubious assumption that a wife's love for her husband is such that she is more likely to bring a false suit against him than a genuine one; and likewise the possibility of trivial actions for minor annoyances, which might well be taken care of by finding consent to all ordinary fictions of wedlock--or at least assumption of risk! The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy--and this even though she has left him or divorced him for that very ground, and although the same courts refuse to find any disruption of domestic tranquility if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.

Prosser, Law of Torts, § 122 at 863 (4th ed. 1971). While it is true that part of this quote involves intentional rather than negligent torts, the arguments in favor of interspousal immunity are generally equally applicable, and lacking, as to both....