Self v. Self

• Citation: 376 P.2d 65,58 Cal.2d 683,26 Cal.Rptr. 97
• Court: United States State Supreme Court (California)
• Decision Date: 09 November 1962
• Parties: , 376 P.2d 65 Catherine SELF, Plaintiff and Appellant, v. Adrian SELF, Defendant and Respondent. L. A. 26878

Page 97

26 Cal.Rptr. 97

58 Cal.2d 683, 376 P.2d 65

Catherine SELF, Plaintiff and Appellant, v. Adrian SELF, Defendant and Respondent.

L. A. 26878.

Supreme Court of California

Nov. 9, 1962.

Robert H. Lund and John R. Brunner, Long Beach, for plaintiff and appellant.

Wolver & Wolver and Eugene L. Wolver, Los Angeles, amici curiae, on behalf of plaintiff and appellant.

Baird, Mooney & Baird, C. Duane Mooney and Woodrow W. Baird, Long Beach, for defendant and respondent.

PETERS, Justice.

The sole problem involved in this case is whether California should continue to follow the rule of interspousal immunity for intentional torts first announced in this state in 1909 in the case of Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.S.,N.S., 699. Because the reasons upon which the Peters case was predicated no longer exist, and because of certain legislative changes made in recent years, we are of the opinion that the rule of the Peters case should be abandoned. In other words, it is our belief that the rule should be that one spouse may sue the other in tort, at least where that tort is an intentional one.

In the instant case, the problem arises under the following circumstances: The complaint for assault and battery was filed on May 5, 1961. It charges that the defendant husband on July 14, 1960, 'unlawfully assaulted plaintiff and beat upon, scratched and abused the person of plaintiff,' and that as a result plaintiff 'sustained physical injury to her person and emotional distress, and among other injuries did receive a broken arm.' The answer consists of a general denial, except that it is admitted that plaintiff's arm was broken. Contributory negligence of plaintiff is alleged, and, as an additional affirmative defense, it is alleged that at the time the injuries occurred the parties were married. Thereafter, defendant filed a notice of motion for a summary judgment on the ground that a wife cannot sue a husband for tort in California. This motion was supported by an affidavit averring that the parties had been married on November 2, 1954, and, on the date of the affidavit (May 18, 1961), were still married, although an action for divorce was pending. The motion for summary judgment was granted, and judgment for defendant entered.

The common law rule of interspousal immunity for either intentional or negligent torts is of ancient origin. It was fundamentally predicated on the doctrine of the legal identity of husband and wife (1 Blackstone, Commentaries 442; 2 Blackstone, Commentaries 433). This rule precluded actions between the two as to either property or personal torts. As long as this doctrine existed, the rule prohibiting a tort action between the spouses was logically sound. As Prosser points out (Prosser on Torts (2d ed. 1955) p. 671): 'If the man were the tort-feasor, the woman's right would be a chose in action which the husband would have the right to reduce to possession, and he must be joined as a plaintiff against himself and the proceeds recovered must be paid to him; and if the tort involved property, the wife had no right of possession to support the action. If the wife committed the tort, the husband would be liable to himself for it, and must be joined as a defendant in his own action.' But the social order upon which this concept was predicated no longer exists. Early in the 19th century married women's emancipation acts were passed in all American jurisdictions. These were designed to confer upon women a separate legal personality, and to give them a separate legal estate in their own property. They conferred upon a wife the capacity to sue or be sued without joining the husband, and generally, as far as third persons were concerned, made the wife separately responsible for her own torts.

From an early date it was recognized that a primary purpose of these statutes was to free the wife's property from the control of her husband. As a result, most American jurisdictions agreed that inasmuch as these statutes destroyed the legal identity of husband and wife, one spouse could recover against the other for a tort, intentional or negligent, committed against his or her property. (See discussion, Prosser on Torts (2d ed. 1955) p. 672.) But this emancipation was not generally extended to the field of personal torts, most of the courts rationalizing that personal tort actions between husband and wife, if permitted, would destroy the peace and harmony of the home, and thus would be contrary to the policy of the law. As Prosser aptly points out (supra, p. 674): '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 though 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.'

In 1910 Justice Harlan in the case of Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, in a dissent, in which Justices Hughes and Holmes concurred, pointed out that the old doctrine was outmoded, that the arguments in support of it were specious, and that the married women's act of the District of Columbia had so emancipated women that, properly interpreted, they should permit a tort action by one spouse against the other. Since then, the number of 'majority' states adhering to the old rule has steadily dwindled, until today at least 18 jurisdictions have followed the reasoning of this dissent. (See annotation 43 A.L.R.2d pp. 647-651, where 16 'minority' states are listed. That annotation was written in 1955. Since then at least two other states have joined these 16. See Ennis v. Truhitte (Mo.) 306 S.W.2d 549, and Koplik v. C. P. Trucking Corp., 47 N.J.Super. 196, 135 A.2d 555.) Practically every legal writer in this field agrees that the old rule is archaic and outmoded, and that the minority rule is the better rule. (See Prosser on Torts (2d ed. 1955) p. 674; 1 Harper & James, The Law of Torts (1956) pp. 645-646; 2 Witkin, Summary of Cal.Law (7th ed. 1960) p. 1220; McCurdy, Torts Between Persons in Domestic Relation (1930) 43 Harv.L.Rev. 1030; Albertsworth, Recognition of New Interests in the Law of Torts (1922) 10 CAL.L.REV. 461; FARAGE, RECOVery for torTS beTWEen spouseS, 10 Ind.L.J. 200.)

California has several cases adhering to the old rule. The first case to discuss the problem in California was Peters v. Peters, supra, 156 Cal. 32, 103 P. 219, decided in 1909, the year before Justice Harlan's dissent in Thompson v. Thompson, supra, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180. In Peters the action was by the husband against the wife for assault and battery. The wife, without justification, seriously wounded her husband by willfully shooting him in the leg. The court held (156 Cal. page 34, 103 P. page 220) that '* * * we are satisfied that, under the law in this state as it is, an action cannot be maintained by one spouse against the other for a battery committed during the continuance of the marriage relation * * *.' The question is entirely new in this state, and such cases are rare in other jurisdictions; but there is no case in favor of the right to maintain such an action.'

The court squarely based its conclusion upon the reasoning that California had adopted the common law, and that at common law no such action existed. The court recognized that under the married women's emancipation acts (page 34, 103 P. page 220) 'it is now generally held that an action at law concerning property may be maintained between them.' It cited several out-of-state cases adopting the common law rule of spousal disability as to personal torts, and particularly cited the early New York case of Longendyke v. Longendyke, 44 Barb. 366, and quoted with approval the statement in that case that 'to allow such actions is 'contrary to the policy of the law and destructive of that conjugal tranquility which it has always been the policy of the law to guard and protect.'' (156 Cal. at p. 35, 103 P. at 220.) The court went on to hold that the various code sections (Civ.Code, §§ 158, 159, 155, and Code Civ.Proc. § 370) as they then read did not change the common law rule in California.

The Peters case has been cited with approval and followed by this court and by several of the District Courts of Appeal, but until the concurring and dissenting opinion of Justice Schauer in 1957 in Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613, no attempt was made to reappraise the doctrine or to analyze the possible effect on it of legislative changes since 1909. In other words, in the cases following the Peters case the rule of Peters was simply accepted by both parties, the litigants contending that the rule was or was not applicable to a particular factual situation. Thus in Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19, the action was for malicious prosecution by the husband against the wife. The court stated (page 306, 246 P.2d page 19): 'It is the established rule generally and is the law in California that where the parties are lawful spouses the one may not sue the other for damages in tort,' citing the Peters case. Neither party seriously challenged that rule, the husband urging that the rule did not apply because the marriage between the parties was void. The court held that, under the facts, the husband was estopped to challenge the validity of the marriage. That was the basic point involved.

Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422, was a negligence case growing out of an automobile accident. Both parties accepted the rule of the Peters case, the injured party claiming that the rule did not apply when the tort was committed after the interlocutory, and the case was tried after final divorce. The court...