Robertson v. McKnight's Estate, 1269

• Decision Date: 13 December 1979
• Docket Number: No. 1269,1269
• Citation: 591 S.W.2d 639
• Parties: James Lewis ROBERTSON et al., Appellants, v. The ESTATE OF Byron M. McKNIGHT, Appellee.
• Court: Texas Court of Appeals

Page 639

591 S.W.2d 639

James Lewis ROBERTSON et al., Appellants, v. The ESTATE OF Byron M. McKNIGHT, Appellee.

No. 1269.

Court of Civil Appeals of Texas,

Tyler.

Dec. 13, 1979.

Rehearing Denied Jan. 3, 1980.

Thomas H. Davis, George M. Fleming, Byrd, Davis & Eisenberg, Austin, for appellants.

Jack Ritter, Jr., Austin, for appellee.

C. C. Small, Jr., Small, Craig & Werkenthin, Austin, L. W. Anderson, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for intervenor.

Before SUMMERS, C. J., and MOORE and McKAY, JJ.

SUMMERS, Chief Justice.

This is an appeal from an order of the trial court granting the motion for summary judgment of appellee (defendant below).

The case arose out of an aviation accident in which the pilot, Byron McKnight, and his wife and passenger, Amelda Ann McKnight, died. James Lewis Robertson, executor and personal representative of the estate of Amelda Ann McKnight, brought this suit against the estate of Byron McKnight seeking damages for the wrongful death of Amelda McKnight due to the negligence of Byron McKnight as pilot of the accident aircraft. This action was brought pursuant to the Texas Wrongful Death Act, Tex.Rev.Civ.Stat.Ann. arts. 4671 and 4678 (Supp.1979). ¹

The crash of the aircraft occurred near Graford, Texas, on December 5, 1974. Both Byron and Amelda McKnight were residents of Hobbs, New Mexico, having moved there in 1964. They owned a home there, and Mr. McKnight operated a business in Hobbs. The plane was owned by a New Mexico corporation and was based in Hobbs, New Mexico. The pilot, Byron McKnight, held a private pilot's license issued by the F.A.A. to him in New Mexico. The estates of both decedents are being probated in the District Court of Lea County, Hobbs, New Mexico. In short, the McKnights were New Mexico citizens whose only connection with the State of Texas was the unfortunate incidence of the crash of the aircraft.

The 126th District Court of Travis County granted appellee's motion for summary judgment holding that Texas, rather than New Mexico law applied, and that the action was barred by the Texas doctrine of interspousal tort immunity. From this adverse ruling, appellants have appealed.

We affirm.

Appellants have predicated their appeal upon three points of error, contending that the trial court erred (1) in granting appellee's motion for summary judgment by failing to apply the law of the domicile of the parties in accordance with established Texas choice of law rules, (2) in applying the Texas doctrine of interspousal immunity because the proper choice of law is that of New Mexico, the state with the most significant contacts with the transaction, and (3) in granting appellee's motion for summary judgment in that the Texas doctrine of interspousal immunity should not be applied under the facts of this case.

One question presented by this case is whether the law of the domicile of the parties (New Mexico) governs in determining whether the husband's estate is immune from tort liability to the wife's estate. This question is of importance to the parties since New Mexico has abolished interspousal tort immunity regarding acts of negligence, while Texas has not.

In 1886 the Texas Supreme Court adopted the common law doctrine of interspousal tort immunity in the case of Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886). In this case the wife sued her husband and a third person for damages resulting from her false imprisonment. The court held that the main reason not to allow such action was public policy considerations. Nickerson and Matson v. Nickerson, supra at 285. These public policy considerations concern the welfare of the family and the peace and tranquility of the marriage. A suit for personal torts by one spouse against the other would disrupt the marital and family relationships. Donsbach v. Offield, 488 S.W.2d 494, 495-96 (Tex.Civ.App. Austin 1972, no writ); McGlothlin v. McGlothlin, 476 S.W.2d 333, 334 (Tex.Civ.App. San Antonio 1972, writ ref'd n. r. e.); Latiolais v. Latiolais, 361 S.W.2d 252, 253 (Tex.Civ.App. Beaumont 1962, writ ref'd n. r. e.); 1 O. Speer, Speer's Marital Rights in Texas sec. 317 (4th ed. 1961).

In 1977, the Texas Supreme Court again had the opportunity to speak on this subject at a time when such immunity was under severe criticism from both the courts and legal scholars. Half of the states had completely abolished the doctrine; Texas, however, through our Supreme Court, refused to go that far. The court, in Bounds v. Caudle, 560 S.W.2d 925, 927 (Tex.1977), abolished the rule in Nickerson concerning interspousal tort immunity Only to the extent that it would bar all claims for willful or intentional torts. The court reasoned that in suits such as these, the public policy considerations of peace in the home would no longer be a factor, since the domestic tranquility would have already been strained to the point where an intentional physical attack could take place, and such would not be further impaired by allowing a suit to be brought to recover damages for the attack. Bounds v. Caudle, supra at 927.

The court also held that the doctrine, aside from this exception of willful and intentional torts, should be maintained as a matter of public policy. The court stated:

"We recognize fully the importance of the family unit in our society and that peace and tranquility in the home are endowed and inspired by (a) higher authority than statutory enactments and court decisions."

Bounds v. Caudle, supra at 927. Thus, the doctrine is still with us today in Texas as to negligent tort actions, rightly or wrongly, and we are bound by it. As stated above, the majority of jurisdictions have either completely abrogated the doctrine or have limited its application, and with the Bounds case Texas falls into the latter category. See Note, 9 Tex.Tech.L.Rev. 659, 673 (1978). Regardless of our inclination on the foregoing, we feel it is the duty of this court to follow the mandates of the supreme court, as expressed in Nickerson and Bounds concerning interspousal tort immunity. Scheffer v. Chron, 560 S.W.2d 419, 423 (Tex.Civ.App. Beaumont 1977, writ ref'd n. r. e.); Warren v. Medley, 521 S.W.2d 137, 139 (Tex.Civ.App. Beaumont 1975, no writ); Ball v. Gulf States Utilities Co., 123 S.W.2d 937, 940 (Tex.Civ.App. Beaumont 1939, writ dism'd). It is not up to us to disregard or abolish a doctrine so long entrenched in our jurisprudence, especially in light of the fact that our supreme court felt no need to do so in Bounds.

Generally, actions based on tortious conduct are governed by the laws of the state where the acts occurred. In recent years however, a change has developed in the area of conflict of laws which holds that the law of the domicile of husband and wife controls the question of interspousal tort immunity. Lederle v. United Services Automobile Association, 394 S.W.2d 31, 33 (Tex.Civ.App. Waco 1965) judgment dismissed and vacated pursuant to compromise settlement 400 S.W.2d 749 (Tex.1966). Approval of this position is found in RESTATEMENT (SECOND) OF CONFLICT OF LAWS sec. 169(2), Comment b, p. 506 (1971).

We feel that the opinion of the court of civil appeals in Lederle still has the force of law. The controversy, by the time it reached the supreme court, was moot; however, when the case was at the civil appeals level, the controversy was still live and justiciable, and only the judgments of the courts below were vacated by the supreme court in Lederle, not the opinion. The supreme court dismissed the cause without an opinion on, or adjudication of, the merits of the controversy by that court. Thus, the appellate court would not retain jurisdiction to decide the controversy after the parties have settled it. See United Services Automobile Association v. Lederle, supra; Railway Exp. Agency v. Spain, 152 Tex. 198, 255 S.W.2d 509 (1953); Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933, 935 (Tex.Civ.App. Houston (1st Dist.) 1978, no writ); Blandin v. First-Wichita National Bank of Wichita Falls, 398 S.W.2d 663, 664 (Tex.Civ.App. Fort Worth 1966, no writ).

Notwithstanding this fact, we believe the law of Texas regarding interspousal tort immunity must still be applied in lieu of New Mexico law governing such immunity. The rule by which one state applies the law of another state is one of comity only, and such is exercised having due regard for the rights of its own citizens. Comity is not a matter of right, and being voluntary and not obligatory, the application of the doctrine rests in the sound discretion of the tribunal of the forum. Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex.Civ.App. Dallas 1966, writ dism'd) cert. denied 389 U.S. 847, 88 S.Ct. 53, 19 L.Ed.2d 116 (1967). We elect not to recognize the law of New Mexico that abolishes completely interspousal tort immunity, because to do so would contravene the public policy of this state concerning such immunity as expressed by our supreme court, as illustrated in Bounds, supra and Nickerson, supra.

To justify an application of the doctrine or principle of comity, it is generally necessary that the laws of the state where it is attempted to be invoked have a public policy that corresponds to the foreign law, so as not to work an injustice to a citizen thereof. London Terrace, Inc. v. McAlister, 179 S.W.2d 515, 517 (Tex.Civ.App. Dallas), rev. on other grounds, 142 Tex. 608, 180 S.W.2d 619 (1944); Portwood v. Portwood, 109 S.W.2d 515, 523 (Tex.Civ.App. Eastland 1937, writ dism'd). To justify a court in declining to enforce a right of action which accrued under the laws of a sister state, because of the policy of our laws, it should appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens. State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 232 (1958). We believe the general interests of our citizens will be offended if New...