Robeson v. International Indem. Co., 37771

CourtSupreme Court of Georgia
Citation282 S.E.2d 896,248 Ga. 306
Docket NumberNo. 37771,37771
Decision Date14 October 1981

Page 896

282 S.E.2d 896
248 Ga. 306
ROBESON, now Love
No. 37771.
Supreme Court of Georgia.
Oct. 14, 1981.

[248 Ga. 310] Robert S. Windholz, Atlanta, for Rebecca Robeson, now Love.

James B. Gurley, Atlanta, for International Indemnity Co. et al.

[248 Ga. 306] MARSHALL, Justice.

The plaintiff, Rebecca Robeson Love, filed a petition for declaratory judgment against International Indemnity Company and Joel Love.

In the petition, the plaintiff states that she sustained serious bodily injuries while

Page 897

riding as a passenger in a motor vehicle owned by her and driven by defendant Joel Love. The plaintiff alleges that the injuries were caused by Joel's negligence, and in the petition the plaintiff states that Joel does not deny this. The plaintiff and Joel became husband and wife subsequent to the date the foregoing injuries were sustained. The plaintiff made a claim for her damages against her automobile liability and no-fault insurer, defendant International Indemnity Company; but International denied the claim under the doctrine of interspousal tort immunity. The plaintiff seeks a declaration that interspousal tort immunity does not bar assertion of her claim against the defendants. She argues that the interspousal immunity rule is either inapplicable here, or that it is unconstitutional, or that it should now be abrogated by this court [248 Ga. 307] on policy grounds. The superior court granted International Indemnity's motion for summary judgment, and the plaintiff appeals.

1. "At common law a husband and wife were, in legal fiction, one and the same person, and under that legal fiction the wife had no right of action against the husband for torts committed against her person or property by the husband, whether committed before or during coverture. Carmichael v. Carmichael, 53 Ga.App. 663, 187 S.E. 116; Wallach v. Wallach, 94 Ga.App. 576, 95 S.E.2d 750. The common-law rule is still of force and effect in this State, except where it has been changed by express statutory enactment or by necessary implication. Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25; Hubbard v. Ruff, 97 Ga.App. 251, 253, 103 S.E.2d 134. While the statutes of this State embodied in Code Ann. § 2-101 and Code §§ 53-501, 53-502, and 53-503, have changed this rule with regard to the property rights of married women, they do not purport to change the common law with respect to personal torts committed by one spouse against the other, Holman v. Holman, 73 Ga.App. 205, 206, 35 S.E.2d 923; Eddleman v. Eddleman, 183 Ga. 766, 771, 189 S.E. 833, and the law, with respect to those matters, is still the same as it was under the common law, that is, that marriage extinguishes antenuptial rights of action between the husband and the wife, and after marriage the wife cannot maintain an action against her husband based on a tortious injury to her person, though committed prior to coverture. Carmichael v. Carmichael, 53 Ga.App. 663, 187 S.E. 116, supra; Henneger v. Lomas, 145 Ind. 287, 44 N.E. 462; Orr v. Orr, 36 N.J. 236, 176 A.2d 241, 91 A.L.R.2d 906." Taylor v. Vezzani, 109 Ga.App. 167(1), 135 S.E.2d 522 (1964).

Therefore, it is clear that the claim presently being asserted by the plaintiff is barred by application of the doctrine of interspousal tort immunity.

2. We are thus presented with the question of whether the doctrine should now be judicially abrogated, either on the ground that it is unconstitutional or on policy grounds.

It cannot be said that the doctrine of interspousal immunity is unconstitutional, as a matter of due process or equal protection. As was stated by the Supreme Court of Delaware in reaching this conclusion: "[A]s to the Federal due process and equal protection clauses, little law directly applicable has been brought to our attention. The strongest precedent is Paiewonsky v. Paiewonsky, 3rd Cir., 446 F.2d 178, 181-182 (1971), cert. den., 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972). In that case, ... the Federal Circuit ..., found no violation of equal protection in the alleged discrimination resulting from the doctrine of interspousal immunity. The Court said it '(had) not been convinced that the immunity doctrine lacks substantial [248 Ga. 308] vitality' and 'it follows that it has a reasonable relationship to the (promotion of domestic tranquility) interest sought to be furthered by it. See also Brawner v. Brawner, Mo.Supr., 327 S.W.2d 808, 815 (1959). Other courts in rejecting equal protection claims have noted the doctrine applies to husbands as well as wives. See Locklair v. Locklair, D.S.C., 256 F.Supp. 530 (1960); Smith v. Smith, 240 Pa.Super. 97, 361 A.2d 756, 757 (1976). Due process claims have fared no better evidently on the ground that a spouse does not have a property interest in a cause of action

Page 898

not recognized by common law or on the ground that any such property interest in a suit against a spouse is lawfully restricted in a matter of public concern by the State's police power: [Cits.]" Alfree v. Alfree, 410 A.2d 161, 163(4) (Del.Supr.1979).

3. Therefore, if the doctrine is to be abrogated, it must be done on policy grounds.

As was previously stated, interspousal immunity was originally based on the legal fiction that husband and wife are in law one person. Although the common-law doctrine concerning the legal identity of husband and wife was eroded through the passage of statutes known as Married Women's Acts in all American jurisdictions in the mid-19th century, the doctrine of interspousal immunity was generally retained by the states on policy grounds that allowance of such suits would disrupt marital harmony and lead to fraudulent, collusive, and frivolous law suits. Prosser, Handbook of the Law of Torts, § 122, 4th Ed. (1971). The view has also been espoused that criminal prosecutions and divorce actions provide adequate remedies for interspousal torts. Id. As late as 1971, the interspousal immunity rule was still followed in a majority of the states. Id.

These policy grounds were cogently stated by the Supreme Court of Florida in rejecting an argument that the doctrine of interspousal immunity be judicially...

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35 cases
  • Boblitz v. Boblitz, 126
    • United States
    • Court of Appeals of Maryland
    • June 30, 1983 still viable in Florida and that it precludes a tort action between husband and wife in all cases." In Robeson v. Int'l. Indemnity Co., 248 Ga. 306, 282 S.E.2d 896 (Ga.1981), the Supreme Court of Georgia, acknowledging widespread modern criticism of the doctrine that in the last decade h......
  • Luna v. Clayton
    • United States
    • Supreme Court of Tennessee
    • May 23, 1983
    ...action. See Hill v. Hill, 415 So.2d 20 (Fla.1982) and West v. West, 414 So.2d 189 (Fla.1982); Robeson v. International Indemnity Co., 248 Ga. 306, 282 S.E.2d 896 (1981); Alfree v. Alfree, 410 A.2d 161 (Del.1979); Varholla v. Varholla, 56 Ohio St.2d 269, 383 N.E.2d 888 (1978); State Farm Mut......
  • Bozman v. Bozman, 105
    • United States
    • Court of Appeals of Maryland
    • August 12, 2003
    ...Alfree v. Alfree, 410 A.2d 161, 162-63 (Del.1979); Raisen v. Raisen, 379 So.2d 352, 355 (Fla. 1979); and Robeson v. Int'l. Indemnity Co., 248 Ga. 306, 282 S.E.2d 896, 898 (1981), of the twelve decisions retaining intact the interspousal immunity doctrine, the Court identified, "[f]rom the t......
  • Brown v. State, S13G1612.
    • United States
    • Supreme Court of Georgia
    • June 2, 2014
    ...courts generally ought not abandon the principle solely upon the ground that it may be unsound policy. See Robeson v. Intl. Indem. Co., 248 Ga. 306, 309–310(4)(b), 282 S.E.2d 896 (1981). To be sure, there are good reasons to doubt that the principle to which we adhere today reflects sound p......
  • Request a trial to view additional results
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