Schwartz v. Schwartz

• Decision Date: 29 April 1968
• Docket Number: No. 1,CA-CIV,1
• Citation: 440 P.2d 326,7 Ariz.App. 445
• Parties: Isabelle S. SCHWARTZ, Appellant, v. Morris SCHWARTZ, Appellee. 465.
• Court: Arizona Court of Appeals

Page 326

440 P.2d 326

7 Ariz.App. 445

Isabelle S. SCHWARTZ, Appellant, v. Morris SCHWARTZ, Appellee.

No. 1 CA-CIV 465.

Court of Appeals of Arizona.

April 29, 1968.

Rehearing Denied May 28, 1968.

Review Granted July 2, 1968.

Harrison, Strick & Myers, by Mark I. Harrison, Phoenix, for appellant.

Gust, Rosenfeld & Divelbess, by Richard A. Segal, Phoenix, for appellee.

CAMERON, Chief Judge.

This is an appeal by the plaintiff from an order of the court granting a motion to dismiss pursuant to Rule 12, Rules of Civil Rpocedure, 16 A.R.S., which was treated by the court as a motion for summary judgment pursuant to Rule 56, Rules of Civil Procedure, 16 A.R.S.

We are called upon to determine:

1. Does the common law rule prohibiting interspousal tort actions obtain in the State of Arizona?

2. If so, can the Arizona court apply the law of the matrimonial domicile which allows interspousal tort actions rather than the lex loci delecti which does not allow this action?

The matter was submitted on an agreed statement of facts and a stipulated designation of record on appeal pursuant to Rules 75(f) and 76, Rules of Civil Procedure, 16 A.R.S. The facts are substantially as follows.

Plaintiff, Isabelle Schwartz, is the wife of the defendant Morris Schwartz. Plaintiff and defendant have been married for many years and have lived in the State of New York continuously since the inception of their marriage. In the winter of 1964 the Schwartzes came to Arizona for a brief vacation. Upon their arrival in Arizona they rented a car, and on 5 December 1964 the defendant-husband was driving the rented automobile in Phoenix, Arizona, and the plaintiff-wife was his only passenger. The parties were involved in an automobile accident in which the defendant Jurgen Blank, a minor, was the driver of the other automobile. Plaintiff-wife was injured, and instituted a suit in the Superior Court of the State of Arizona in and for the County of Amricopa against the defendant-husband, defendant Jurgen Blank, a minor, and his parents, alleging that the defendant-husband and the Blanks, were jointly and severally liable for the injuries and damages sustained in the accident. Defendant-husband filed a motion to dismiss which was granted, and the plaintiff brings this appeal.

INTERSPOUSAL TORT IMMUNITY

§ 1--201 A.R.S. reads as follows:

'The common law only so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people thereof, and not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, or established customs of the people of this state, is adopted and shall be the rule of decision in all courts of this state.'

And our Court has stated that statutes are not deemed to repeal the common law unless legislative intent to do so is clearly manifested. Tucson Gas and Electric v. Schantz, 5 Ariz.App. 511, 428 P.2d 686 (1967). We have found nothing in the statute or case law of Arizona which repeals the common law as regards the right of one spouse to sue another in tort, and it is clear that at common law there was no right for one spouse to sue another in tort.

However, appellant contends that the married woman's act, part of which reads as follows:

'A. Married women of the age of twenty-one years and upwards have the same legal rights and are subject to the same legal liabilities as men of the age of twenty-one years and upwards except the right to make contracts binding upon the common property of the husband and wife.' § 25--214 A.R.S.;

together with:

'Married woman as a party; actions for necessaries. When a married woman is a party her husband shall be joined with her except when the action concerns her separate property, or is between herself and her husband, in which she may sue or be sued alone. If a husband and wife are sued together, the wife may defend in her own right. The husband and wife shall be sued jointly for all debts contracted by the wife for necessaries furnished herself or children.' Rule 17(e), Rules of Civil Procedure, 16 A.R.S.;

has done away with the prohibition of interspousal suits, and that the wife is fully competent to sue her husband in tort. With this we do not agree.

It is generally agreed that at common law the husband and wife were one (and the husband The one) and a spouse could not maintain a tort action against the other. Annotation, 43 A.L.R.2d 632. Some states either by statute or by court decision, particularly in interpretation of the applicable married women's acts, have rejected the common law rule against interspousal tort action, but the majority view and we feel the better reasoned view is that the married women's acts such as we have in Arizona have not altered the common law in this regard. Annotation, 43 A.L.R.2d 651. We therefore hold that the law in Arizona at this time follows the common law in this regard, and a person may not sue his or her spouse in tort in the State of Arizona.

WHICH LAW APPLIES?

Appellant contends that even though the State of Arizona has not rejected the common law rule concerning interspousal tort liability, under the 'grouping of contacts', 'center of gravity', or 'most significant relationship' theories the law of the State of New York concerning interspousal tort liability would apply. It is conceded for the purpose of this discussion that had this accident occurred in New York State the plaintiff-wife would have been able to maintain, in the New York courts, a suit against the husband for the alleged tort.

One of the leading cases in this filed is the case of Thompson v. Thompson, 105 N.H. 86, 193 A.2d 439, 96 A.L.R.2d 969 (1963). In Thompson v. Thompson, supra, a wife was injured while riding in Massachusetts as a passenger in a motor vehicle driven by her husband. The law in Massachusetts permits revcovery by a passenger for injuries resulting from gross negligence of the driver, but does not permit an action in favor of a husband or wife for tort committed there by the other during marriage. The law of New Hampshire allows this type of action. The husband and wife were domiciled in and residents of New Hampshire at the time the suit was brought in New Hampshire. The court stated:

'Accordingly we hold that the question of whether the defendant is immune from liability to his wife is governed by the law of New Hampshire where both are domiciled, and that under that law such immunity does not exist.' 105 N.H. 86, 193 A.2d 439, 441, 96 A.L.R.2d 969, 973 (1963).

The Thompson case, supra, followed by two and one-half months the often cited New York case of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963). In Bobcock v. Jackson, supra, the parties were on a week-end trip to Canada although both parties were domiciled in and residents of New York. The Province of Ontario, Canada, in which the accident occurred does not have a guest statute. However, the passenger brought a suit in New York State, after they returned, for the negligent conduct of the driver. In that case the New York court stated:

'The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestionably followed in this court (citations omitted) has been that the substantive rights and liabilities arising out of tortious occurrence are determinable by the law of the place of the tort. (citations omitted) It had its conceptual foundation in the vested rights doctrine, namely, that a right to trcover for a foreign tort owes its creation to the...