Rogers v. Yellowstone Park Co.

• Decision Date: 25 July 1974
• Docket Number: No. 11299,11299
• Parties: Betty ROGERS, Plaintiff-Appellant, v. YELLOWSTONE PARK COMPANY, a corporation, Defendant-Respondent, and Peter Rogers, Defendant.
• Court: Idaho Supreme Court

Page 566

539 P.2d 566

97 Idaho 14

Betty ROGERS, Plaintiff-Appellant, v. YELLOWSTONE PARK COMPANY, a corporation, Defendant-Respondent and Peter Rogers, Defendant.

No. 11299.

Supreme Court of Idaho.

July 25, 1974.

On Rehearing May 5, 1975.

[97 Idaho 15] Nels T. Sahl, St. Anthony, for plaintiff-appellant.

E. W. Pike, Albaugh, Bloem, Smith & Pike, Idaho Falls, for defendant-respondent.

McFADDEN, Justice.

Betty Rogers, the plaintiff-appellant, instituted this action under the provisions of I.C. § 49-1404 ¹ seeking damages for personal injuries arising out of a one-car accident which occurred on March 29, 1970. near Ashton, Idaho.

In her complaint, appellant alleged the following facts. She was a passenger in a car owned by the Yellowstone Park Company, the defendant-respondent, and operated by Peter Rogers, her husband who was employed by the respondent company. Respondent Yellowstone Park Company gave permission to her husband to operate the vehicle on this particular business related trip from San Francisco to Yellowstone Park, and agreed that appellant and her son, an infant, could accompany her husband on this trip. Defendant Peter Rogers drove the company car continuously on the trip, without rest or relief, except for brief stops. Appellant's husband, while driving, dozed or fell asleep and the car left the highway. Appellant alleged her husband's conduct constituted gross, wanton and reckless disregard of the lives of others and his negligent acts and omissions caused the accident and seriously injured her. She alleged she sustained medical and hospital expenses in the approximate amount of $4200, and alleges future medical expenses for her injuries will be $10,000. She alleged damages for incidental expenses, loss of earnings and pain and suffering in the amount of $50,000.

Appellant, while naming both the Yellowstone Park Company and her husband as defendants in the action, obtained service of summons and complaint on the Yellowstone Park Company, but not on her husband. The respondent in its separate answer denied all allegations of the complaint, and alleged as affirmative defenses the following. Peter Rogers was not authorized to carry passengers in the company vehicle; a necessary party, i. e., Peter Rogers, was not joined as a party plaintiff; any recovery by appellant would be community property for herself and her husband, and that her husband was an indispensable Respondent filed its motion for summary judgment, contending that a wife living and cohabigating with her husband cannot recover from her husband's employer for the husband's negligent acts, since any recovery by the wife would be community property which would inure to the benefit of the husband tortfeasor. The motion for summary judgment was based on a deposition of appellant taken by respondent, certain answers to interrogatories, admissions, and affidavits. The trial court concluded that under the present interpretation of Idaho law, any recovery by appellant would be community property of herself and her husband, thus inuring to his benefit. The trial court granted the motion for summary judgment, from which judgment appellant has taken this appeal.

[97 Idaho 16] party plaintiff. Respondent by way of cross-claim against Peter Rogers alleged it was entitled to indemnification from him for any sums it might have to pay appellant by reason of this action. ²

Presented for resolution by this court is the fundamental issue of whether the appellant wife may maintain an action for personal injuries against her husband and his employer for her husband's negligence during the course and scope of the husband's employment. Appellant relies heavily on the case of Lorang v. Hays, 69 Idaho 440, 209 P.2d 733 (1949), an action involving a tort committed by a husband on his wife, as authority that such an action may be maintained. Appellant has also cited cases from other community property jurisdictions where actions were allowed by one spouse against the other for negligent torts.

Respondent on the other hand, contends that any recovery by a wife, for damages such as are claimed in this action, is community property of herself and her spouse barring the action as held by the trial court.

Respondent points to a number of cases decided prior to Lorang v. Hays, supra, where this court held that damages for personal injuries to a spouse were community property. Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545 (1898); Lindsay v. Oregon Short Line RR Co., 13 Idaho 477, 90 P. 984 (1907); Labonte v. Davidson, 31 Idaho 644, 175 P. 588 (1918); Muir v. City of Pocatello, 36 Idaho 532, 212 P. 345 (1922); Sprouse v. Magee, 46 Idaho 622, 269 P. 993 (1928) (dictum); Swager v. Peterson, 49 Idaho 785, 291 P. 1049 (1930). See also the following two cases decided subsequent to Lorang v. Hays, supra, Doggett v. Boiler Engineering & Supp. Co., 93 Idaho 888, 477 P.2d 511 (1970) (concerning survival of claims for personal injuries), and Clark v. Foster, 87 Idaho 134, 391 P.2d 853 (1964). In each of those cases a spouse instituted an action against a third party defendant without joining the husband as a party. Without exception, the court did not examine the nature of the interest damaged but assumed the recovery to be community property. None of these involved the issue of one spouse suing the other for damages arising out of the other's negligence. The principal issue in those cases was whether the proper parties were before the court, and the court held that since the husband was the manager of the community property under I.C. § 32-912 ³ he was a necessary and proper party to bring an action belonging to the community.

Respondent in support of its position that the trial court acted properly in granting the summary judgment also refers to an annotation pertaining to actions by one spouse against another. Annot. 43 A.L.R.2d 632 (1955). However, appellant counters '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 frictions 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, p. 863 (4th ed., 1971).

[97 Idaho 17] this citation, first pointing out the policy arguments set out in the annotation to the effect: (1) maintenance of an interspousal immunity rule is necessary for the preservation of domestic peace; (2) its abrogation would encourage litigation which, at least where a spouse is protected by insurance, might be collusive; and (3) any change in the rule should be for the legislature. Appellant contends these policy arguments are without merit and refers to Prosser, Law of Torts, § 122, p. 863 (4th ed., 1971), where the author states concerning such traditional arguments,

See also, Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962).

Implicit in respondent's argument is that the judicial system is inadequate to safeguard against collusion in tort actions between spouses. We reject this contention, for courts in this state presently weed out fraud and collusion in other cases not involving actions between spouses. We find nothing unusual or peculiar in interspousal suits to frustrate the capability of the judicial system to avoid or anticipate such abuses. See, Brooks v. Robinson, 284 N.E.2d 794 (Ind.1972). It is difficult to perceive how a personal action would disrupt the tranquility of the marital state to any greater degree than would actions in partition, ejectment or for contesting of wills, all of which actions now may be maintained by a wife against her husband when such actions involve her separate property. I.C. § 5-304; I.C. § 32-904. See, Salisbury v. Spofford, 22 Idaho 393, 126 P. 400 (1912), and Boggs v. Seawell, 35 Idaho 132, 205 P. 262 (1922), both being cases where a wife brought an action involving separate property without her husband being joined. It is the conclusion of the court that the policy arguments referred to by respondent in support of its position are fully answered by the quotation from Prosser quoted above.

Aside from a consideration of the nature of the right sought to be protected in this instant action, we find no valid reason for the retention of interspousal immunity in an action of this kind.

We now come to the critical issue concerning the nature of the interest which appellant by this action seeks to protect. If one relies on the cases previously cited by respondent involving tort claims against third party tort-feasors, it is clear that there is only one answer, i. e., appellant's recovery for damages suffered in the automobile accident would be community property and this present action would be barred. However, without exception none of those cases considered the character of the right harmed for which the damages were sought.

Separate property is defined by statute to include:

'All property of either the husband or the wife owned by him or her...