Rubalcava v. Gisseman

• Decision Date: 12 August 1963
• Docket Number: No. 9822,9822
• Parties: d 344 Lydia RUBALCAVA, Plaintiff and Respondent, v. Ruby L. GISSEMAN, Administratrix of the Estate of Theodore Rubalcava, Deceased, Defendant and Appellant, Union Pacific Railroad, a corporation, Defendant.
• Court: Utah Supreme Court

Page 389

384 P.2d 389

14 Utah 2d 344

Lydia RUBALCAVA, Plaintiff and Respondent, v. Ruby L. GISSEMAN, Administratrix of the Estate of Theodore Rubalcava, Deceased, Defendant and Appellant Union Pacific Railroad, a corporation, Defendant.

No. 9822.

Supreme Court of Utah.

Aug. 12, 1963.

Skeen, Worsley, Snow & Christensen, Salt Lake City, for appellant.

Elton & Moore, Salt Lake City, for respondent.

CROCKETT, Justice.

Plaintiff Lydia Rubalcava sues the Union Pacific Railroad and the estate of her husband, Theodore Rubalcava, for injuries she suffered in an auto-train collision which occurred at about 2 a. m., November 12, 1961, in the 1600 West block in Salt Lake City, and in which her husband as driver was killed.

Defendant estate moved to dismiss on the ground that a wife cannot maintain a tort action against her husband (or his estate). From a denial of that motion the estate appeals.

We are not concerned on this appeal with the merits of the cause of action, which alleged intoxication of the deceased husband, ¹ but only with whether a wife can maintain such an action. We have heretofore confronted and found difficulty with a closely related problem in the case of Taylor v. Patten, ² which we will refer to below. In view of that fact it seems appropriate in approaching this question to survey its background, and the rulings of other courts concerning it.

In former times at common law it was considered that upon marriage, the wife as a legal entity merged with her husband; that her person and property became his; that any recovery for injury to them belonged to him, and that the suit had to be brought in his name. The concept of unity was correlated to that of the husband being master of the house and the objective of preserving family harmony, which it was thought adverse interests, and a fortiori, lawsuits over them, would tend to disrupt. Following this tenor of thought it has also been reasoned that permitting such suits would open the door to actions upon occurrences in the family which should be left to time and the normal give and take of married life to heal; and further, that where insurance is involved, because of the common interest the spouses would have in the outcome, collusion would be encouraged.

The plaintiff asserts that the concept of complete legal unity is an outmoded vestige of a bygone era; that with this change in legal status, the reason based upon it militating against suits of this character should also pass into the discard; and that under what are called married women's statutes, there has been such an enlargement of a wife's individual rights that the action should be permitted. Under these statutes, which confer upon a wife rights concerning her person, her separate ownership of property; and the privilege of suing in her own name in respect thereto, it is quite uniformly held that in proper circumstances the wife may sue her husband in regard to contract or property. But there is a divergence of authority as to whether this extends her privilege to actions in tort against him.

A minority of jurisdictions have interpreted them to justify actions of this nature. ³ These courts make various answers to the reasons given for not allowing the action. To the argument for marital harmony they respond that tort actions do not disrupt the family any more than contract actions. They ask euphemistically, 'Why should a wife be allowed to recover for a broken contract, but not for a broken arm?' And reason further that the wrongful act has likely impaired the marital harmony anyway, so the lawsuit would not extend the rift, but, if anything, would tend to rectify it. The contention that it would open the door to numerous suits over trifling matters is countered by saying that an action having real merit should not be prohibited because of the possibility of abuse with unmeritorious ones, ⁴ and the collusion argument, insofar as it applies to family unity, by saying that since the insurance company, and not the defendant will have to pay, the family exchequer will not suffer so much by allowing the action as by denying it, so the family harmony will not be harmed but may be served by allowing the action. ⁵

It is to be conceded readily that the idea of the spouses' single legal entity in the husband has passed into limbo; and perhaps more reluctantly, that as a generality, the idea that the husband is master of the house exists more in theory than in fact, so that its persuasive force in shaping the policy of the law is minimal. Nevertheless, a majority of courts reject the reasons stated above as given by the minority for allowing such actions as not persuasive. They emphasize the proposition that it should be the purpose of the law to protect family solidarity and adhere to what we consider to be the better and sounder view by refusing to allow an action such as this. ⁶

A leading case espousing this position is Thompson v. Thompson, ⁷ in which the United States Supreme Court considered similar statutes of the District of Columbia and found them not broad enough to allow interspousal suits in tort. The court expressed the opinion that the enactment of a statute permitting the wife to sue and be sued in her own name was intended to confer the procedural privilege of suing to protect rights she had but not to create a new cause of action which had not theretofore existed. ⁸

We are in accord with the reasoning that statutes expressly allowing actions by the wife against the husband in respect to contract and property, do not compel the conclusion that tort actions should also be included. If there is danger of marital discord from the former, that evil will not be minimized by expanding the statutes' meaning to permit tort actions as well. The old adage, two wrongs do not make a right, is applicable.

The answer to the argument for marital harmony: that discord will not be engendered when the insurance company is to pay, is neither sound nor entirely realistic. The question of liability can be ascertained justly only upon its own merits. Whether there is insurance or not is immaterial to this determination. However, the fact cannot be ignored that where there is insurance, and this is known to both parties, the temptation to collusion exists; and this is increased when the supposedly adverse parties are in the symbiotic relationship of husband and wife. The risk of loss, and the natural reaction to defend against a charge of wrong, may be negligible or nonexistent; and are supplanted by the covert hope of mutual benefit. It is obvious that for persons so disposed, the situation would provide spawn for lawsuits that otherwise would not be brought. We are impressed with the wisdom of Justice Sims, dissenting in Brown v. Gosser, ⁹ wherein he stated that to allow interspousal actions 'encourages raids on insurance companies through unmeritorious claims which never would be instituted where the husband did not carry liability insurance, thus possibly raising insurance rates on thousands of honest persons for the benefit of the fraudulent few.' ¹⁰

The argument that domestic felicity will not be impaired when the insurance company is to pay seems to lose sight of the principle that collusion itself is something dishonest to be guarded against. We assume that it will be agreed that the objective of a fair and just determination is not to be subverted by providing an easy means for a discordant pair to unite happily in collusion against a third party simply for the sake of marital harmony. More fundamental ethical thinking will demonstrate that this ultimately would not serve the cause of household concord anyway. If spouses join in dishonest chicanery against a third party, this would weaken the foundation of their relationship because when troubles arise, as they always do in marriage, the parties would then suspect each other's integrity.

Plaintiff has also placed reliance upon some authorities which have held that even though the action should not otherwise be maintainable, where the husband has beaten his wife or committed other intentional wrong against her, or where he is dead, so that 'there remains no domestic peace and felicity to be protected,' it should be allowed. ¹¹ As will appear below in analyzing our statutes, no basis can be found therein for any distinction between intentional or unintentional torts. Under them the plaintiff either has a right to bring an action in tort, or she does not. This is also true where the husband is deceased. In that regard this further is to be said: whether such a cause of action exists should be determined upon the basis of the facts at the time of the alleged wrongful act and not upon whether the accused lives or dies thereafter. The incongruity and illogic of holding that an injured wife could not recover against her husband if he survived, but only if he should die, is patent. ¹²

From the foregoing background we approach the most important and the controlling aspect of this case; analysis of our own statutes, in which the basis of this cause of action would have to be found. They indicate clearly that our legislature intended to depart from the marital unity fiction and to establish the wife as a separate personality legally. Numerous rights as to her person, her separate ownership of property and the privilege of suing in respect to them are conferred upon her. The first section we look at is Sec. 78-11-1, U.C.A.1953, which provides in general language that a wife may sue or be sued in her own name, with no reference to subject matter. This is part of our Judicial Code (Code of Civil Procedure), is procedural, and serves only to give the wife the privilege of suing to protect whatever rights she may have but does not purport to create for her any new or substantive cause of action. Any such right would be found in Title 30, Husband and Wife, which particularizes the rights which they possess under our law. The wife's...