Richard v. Richard, 19-72

Decision Date06 February 1973
Docket NumberNo. 19-72,19-72
Citation300 A.2d 637,131 Vt. 98
PartiesMarion RICHARD, b/n/f Edna Greenwood v. Robert RICHARD.
CourtVermont Supreme Court

Kilburn & Lynch, Swanton, for plaintiff.

Richard H. Wadhams, Jr., of Pierson, Affolter & Amidon, Burlington, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

SMITH, Justice.

The question before us has been certified to us by the presiding judge of the Franklin County Court, under the provisions of Rule 5(b) of the Vermont Rules of Appellate Procedure appealing the Amended Order of Superior Judge Stephen B. Martin, dated February 4, 1972.

The question certified is:

'Whether a wife can sue her husband for personal injuries received by her during her marriage while riding as a guest in an automobile operated by her husband by reason of his alleged negligence.'

The factual situation is simple. On November 14, 1970, in St. Albans, Vermont, plaintiff, during her marriage to the defendant, was injured in a one-car accident when she was a passenger in an automobile operated by her husband. Plaintiff's complaint, brought in her name and the name of her next friend, alleges that the defendant operated the automobile in a negligent manner, causing it to collide with a light pole. As a result of the collision, the plaintiff alleges she received severe, painful and permanent injuries for which she claims damages.

Some forty years ago, this Court was presented with a question almost identical to the one now presented. Comstock v. Comstock, 106 Vt. 50, 169 A. 903 (1934). This Court then held that under the Rights of Married Women Act, then G.L. 3521 and G.L. 3524, now found in 15 V.S.A. §§ 61 and 66, a married woman could not maintain an action against her husband under the laws of this State for injuries caused by his gross negligence in operating an automobile in which she was riding as his guest. Declaring that to allow such a suit by the wife against her husband would be contrary to the common law as well as to the statute, the Court said:

'If the right exists, the wife is entitled to assert it; if it does not exist, she has no standing in court. Clearly such a right is not to be found in express terms in our statute; nor can it be fairly implied from the language used. If such a radical change is to be made in the common-law rights and liabilities of married persons, as that urged by the plaintiff, it must be made by clear legislative enactment and not by this court in giving an unwarranted construction to the statute before us.' 106 Vt. at 57, 169 A. at 906.

It is obvious that the particular statute the Court had in mind was G.L. 3524, headed 'Rights in Personalty', which includes rights of action acquired by a woman. Although differing in punctuation the then Act is exactly similar to 15 V.S.A. § 66:

'All personal property and rights of action acquired by a woman before or during coverture, except by gift from her husband, shall be held to her sole and separate use. Neither a wife's separate property nor the rents, issues, income and products of the same shall be subject to the disposal of her husband or liable for his debts. Nothing herein contained shall authorize a claim by either husband or wife against the other for personal services.'

In Juaire v. Juaire, 128 Vt. 149, 259 A.2d 786 (1969), we held that a wife could maintain an action in equity to recover damages arising out of an accident alleged to have been caused by the tortfeasor which occurred prior to marriage, but, although mention was made of the 'somewhat dubious dictate of Comstock', the question presented was strictly confined to the particular circumstances presented in the case. Juaire was an action in equity, as is the instant case before us, but V.R.C.P. 2 now provides for one form of action known as a 'civil action', although the rule only affects procedure and not the right to a specific kind of legal or equitable return. So the incident that the instant case was brought in equity has no significance in the problem presented.

The views expressed in Comstock were similar to the views expressed by a majority of the jurisdictions at the time. Indeed, it is still the law in the greater number of states, but a growing number of jurisdictions, now at least nineteen in number have taken a contrary and more liberal stand on the question presented. We think the time has come for this Court to overrule the harsh dictate of Comstock in respect to the right of a married woman to maintain an action against her husband for personal injuries, received by her during her marriage while riding as a guest in an automobile operated by her husband, by reason of his negligence.

The opinion of this Court at the time of Comstock was that the Vermont Married Woman's Act did not permit an action to be brought by a wife against her husband, because such action was not specifically provided for in the Act. It is equally true that there is nothing in 15 V.S.A. § 66 which specifically bars such action. The Act provides that:

'All personal property and rights of action acquired by a woman before or during coverture, except by gift from her husband, shall be held to her sole and separate use.'

The only specific bar in the statute is that:

'Nothing herein contained shall authorize a claim by either husband or wife against the other for personal services.'

What the Comstock Court was saying was that under the common law there was no right of action of a wife against the husband, because under that law they were regarded as one person, and that the statute in question did not abrogate this principle except in the specific instances provided in the statute. What the Court did was read into the statute the common law rule that husband and wife were one person, as concerning the right to maintain a tort action between husband and wife, although the statute, itself, was silent on the subject of actions for personal torts. See W. Prosser, Torts Chapter 23, Domestic Relations (4th ed. 1971).

We are a common law state. 1 V.S.A. § 271. But in the case of Wright v. Burroughs, 61 Vt. 390, 394, 18 A. 311, 312 (1899), this Court considered the effect of No. 140, Acts of 1884, the original statute setting up the rights of married women, on whether in a suit upon a promissory note a married woman must join her husband as plaintiff. Speaking of the purpose of the statute, the Court said:

'And although the statute may seem in form to be merely permissive,-'may sue and be sued'-and to leave it optional whether the husband shall join or not; yet, when we consider that its purpose was to cut by the roots the marital rights of the husband in the wife's personal property and rights of action, and to set her free from the thraldom of the common law in respect thereof, and confer upon her the rights and and privileges of an independent legal existence, it would be inconsistent with the spirit of the act to construe it as permissive merely, and not mandatory.'

It is true, as the Comstock court said, that the opinion in Wright did not intimate that the legislature intended to create a right of action that did not exist before. But there was no occasion for a consideration of this question in the matter before the court in Wright. But the Wright court did make abundantly clear that the purpose of the Act was to set a married woman free 'from the thraldom of the common law' relative to the rights of a husband in the rights of action of the wife. Nor do we think that it can be successfully disputed that the overwhelming intent of the General Assembly in enacting the so-called Married Woman's Right Act was to relieve such women from the outmoded conception of the common law that husband and wife were one person.

There is the temptation in the instant case, where the parties have stipulated that the husband is insured, and that the parties are in the process of divorce, to hold our decision here only as to the facts presented which could lead to the conclusion that in this case, at least, there is no domestic tranquility that could be disturbed by abrogation of the interspousal immunity under the facts presented. Such would be the easy path. However, it would leave unresolved the real question presented. It would still leave uncertain the law of this jurisdiction on the right of a wife to sue her husband for personal injuries received by her during her marriage while riding as a guest in an automobile operated by her husband by reason of his alleged negligence, and could only lead to further litigation on the same question until a final determination of the question was made. We shall proceed to make such determination now.

The appellant asserts that public policy dictates that the doctrine of interspousal tort immunity be maintained. Comstock v. Comstock, supra. It is the argument of the appellant that it is the public policy of the state to promote marital harmony, and that if a husband and...

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