Shook v. Crabb, 62696

• Citation: 281 N.W.2d 616
• Decision Date: 25 July 1979
• Docket Number: No. 62696,62696
• Parties: Lois A. SHOOK, Executor of the Estate of Kathryn Madison Crabb, Deceased, Appellant, v. Dennis CRABB, Executor of the Estate of D. N. Crabb, Deceased, Appellee.
• Court: United States State Supreme Court of Iowa

Page 616

281 N.W.2d 616

Lois A. SHOOK, Executor of the Estate of Kathryn Madison Crabb, Deceased, Appellant, v. Dennis CRABB, Executor of the Estate of D. N. Crabb, Deceased, Appellee.

No. 62696.

Supreme Court of Iowa.

July 25, 1979.

Verne Lawyer and Richard H. Doyle IV of Lawyer, Lawyer & Jackson, Des Moines, for appellant.

Warren L. Bush of Reimer & Vipond, Denison, and Patrick H. McDonnell, Omaha, Neb., for appellee.

Considered en banc.

REES, Justice.

In this appeal Lois A. Shook, executor of the estate of Kathryn Madison Crabb, appeals from the order of the trial court sustaining defendant's motion for summary judgment in an action for wrongful death brought against the estate of D. N. Crabb, the husband of Kathryn Madison Crabb. The appellant contends the reasons underlying the doctrine of interspousal immunity, established by the case law of this jurisdiction, are of questionable validity and that the doctrine should therefore be abrogated by us. For the reasons set out below, we reverse the trial court and remand this case for further proceedings.

Kathryn and D. N. Crabb were wife and husband, residing in Iowa. On January 6, 1978 they were occupants of an aircraft owned and piloted by D. N. Crabb when it crashed near Campo, Texas. Both perished in the accident.

Plaintiff's petition was filed on July 24, 1978, in which she alleged Kathryn Crabb's death was the result of the negligent operation of the airplane on the part of D. N. Crabb. Plaintiff sought damages totaling $600,000. In the defendant's answer, the claimed negligence of D. N. Crabb was denied, and the defendant asserted the marital status of the parties at the time of their deaths.

On August 22, 1978 the defendant moved for summary judgment, asserting that the doctrine of interspousal immunity barred recovery. The district court, while questioning the legal viability of the doctrine, sustained defendant's motion for summary judgment. This appeal ensued.

We are therefore confronted with the issue as to whether the bases underlying the common law doctrine of interspousal immunity have been so eroded over the course of time as to justify its abrogation in this jurisdiction.

I. Before reaching the merits of the controversy, some comments regarding the appropriateness of this subject for judicial action and the scope of the issue presented are deemed necessary.

The defendant argues in this appeal that the abolition of the doctrine of interspousal immunity involves determinations of public policy more properly subject to legislative enactment rather than judicial action. Defendant contends that since the common law is presumed to be in effect in this state except where revised or repealed by statute or constitution, Iowa Civil Liberties Union v. Critelli, 244 N.W.2d 564, 568 (Iowa 1976), and that we had previously stated that the power to grant or deny a cause of action lies with the legislature, Hankins v. Derby, 211 N.W.2d 581, 584 (Iowa 1973), we should await legislative action in this area.

If the legislature chose to address the question, any enactment by it would be dispositive, absent constitutional objection. Yet when a doctrine or rule is of judicial origin, we would "abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule", Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694 (1951). A clear majority of jurisdictions which have considered this argument have found the subject matter ripe for determination and reached the merits of the issue. See, e. g., Brooks v. Robinson, 259 Ind. 16, 22-23, 284 N.E.2d 794, 797 (1972); Lewis v. Lewis, 370 Mass. 619, ---, 351 N.E.2d 526, 531-32 (1976); Beaudette v. Frana, 285 Minn. 366, 370-71, 173 N.W.2d 416, 418-19 (1969); Rupert v. Stienne, 90 Nev. 397, 399-400, 528 P.2d 1013, 1014-15 (1974); Immer v. Risko, 56 N.J. 482, 487, 267 A.2d 481, 483-84 (1970); Flores v. Flores, 84 N.M. 601, 603-04, 506 P.2d 345, 347-48 (Ct.App.1973); Digby v. Digby, R.I., 388 A.2d 1, 2-3 (1978); Freehe v. Freehe, 81 Wash.2d 183, 189, 500 P.2d 771, 775-76 (1972). Contra, Burns v. Burns, 111 Ariz. 178, 180-81, 526 P.2d 717, 720 (1974); State Farm Mutual Ins. Co. v. Leary, 168 Mont. 482, 486, 544 P.2d 444, 447 (1975); Varholla v. Varholla, 56 Ohio St.2d 269, 270, 383 N.E.2d 888, 889 (1978). An appellate court would be remiss in its duties if it did not from time to time reexamine the analysis underlying its precedents.

In Hankins v. Derby, when we said that we would generally defer to the legislature regarding plaintiff's particular cause of action, we noted that such was the posture adopted by the courts of other jurisdictions which had considered the issue. As previously stated, such deference does not typify the judicial approach to the question of interspousal immunity. The doctrine of interspousal immunity is grounded in the case law of this court rather than upon statutory enactment. Absent such a legislative base, examination of the doctrine is properly within our province.

In regard to the scope of the issue before us, the plaintiff would have us consider the possibility of limiting our holding to the situation where one or both of the spouses is dead, as was done by the Utah Supreme Court in Hull v. Silver, Utah, 577 P.2d 103 (1978), and the Supreme Court of Rhode Island, Asplin v. Amica Mutual Insurance Co., R.I., 394 A.2d 1353 (1978). Our wrongful death statute, § 611.20, The Code, precludes that possibility. It is a survival statute; it does not create a new cause of action for the deceased's estate, but rather allows the estate to assert a cause of action which the decedent would have had, had he or she survived. Egan v. Naylor, 208 N.W.2d 915, 917 (Iowa 1973). Wright v. Daniels, 164 N.W.2d 180, 181 (Iowa 1969); Cardamon v. Iowa Lutheran Hospital, 256 Iowa 506, 520, 128 N.W.2d 226, 235 (1964). Thus the capacity of an estate to bring an action for wrongful death is contingent upon the capacity of the estate's decedent to bring the action had he or she survived. With the capacity of the estate contingent upon that of its decedent, it can make no difference under the law of this jurisdiction, for purposes of suit, whether a spouse is killed or merely injured. While a death would be determinative of any preservation of family harmony argument, our statute focuses upon the capacity of the decedent had he or she survived and is distinguishable from the Utah and Rhode Island statutes.

Thus, even though there were no survivors of the airplane crash, and consequently there is no marital harmony to be preserved or disturbed in this case, the survival aspect of our wrongful death statutes brings squarely before us the issue of the continued vitality of the concept of interspousal immunity regarding personal injuries allegedly the result of spousal negligence.

At the time defendant's motion for summary judgment was sustained, the doctrine of interspousal immunity was firmly entrenched in the case law of this state. Wright v. Daniels, 164 N.W.2d 180 (Iowa 1969); Flogel v. Flogel, 257 Iowa 547, 133 N.W.2d 907 (1965); Aldrich v. Tracy, 222 Iowa 84, 269 N.W. 30 (1936); In re Dolmage's Estate, 203 Iowa 231, 212 N.W. 553 (1927); Peters v. Peters, 42 Iowa 182 (1875). While the doctrine was originally based on the common law fiction of the merger of husband and wife into a single legal entity, 1 W. Blackstone, Commentaries 442 *-445; McCurdy, Torts Between Persons in Domestic Relations, 43 Harv.L.Rev. 1030, 1030-33 (1930), with the demise of that legal fiction the doctrine has found support in considerations of marital harmony, as well as the potential for collusive lawsuits. Restatement (Second of Torts § 895F, Comment d (1979); Prosser, Law of Torts, § 122, at 862-63 (4th ed. 1971).

Our prior cases directly regarding the doctrine reflect the impression that a majority of jurisdictions favored retention of the immunity. A survey of existing case law evidences a definite trend toward abolishing in toto or limiting in part application of the doctrine of interspousal immunity due to the fundamental policy consideration of providing judicial redress for an otherwise cognizable wrong, and a concomitant rejection of the arguments advanced in support of the doctrine: Bennett v. Bennett, 224 Ala. 335, 140 So. 378 (1932); Cramer v. Cramer, 379 P.2d 95 (Alaska 1963); Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957); Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962); Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935); Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432 (1925); Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1975); Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972); O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964); Brown v. Gosser, 262 S.W.2d 480 (Ky.1953); Moulton v. Moulton, Me., 309 A.2d 224 (1973); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978); Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1976); Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969); Imig v. March, Neb., 279 N.W.2d 382 (1979); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Thompson v. Thompson, 105 N.H. 86, 193 A.2d 439 (1963); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978); Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975); Jacobs v. United States Fidelity and Guaranty Co., 2 Misc.2d 428, 152 N.Y.S.2d 128 (1956); Foster v. Foster, 264 N.C. 694, 142 S.E.2d 638 (1965); Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 242 N.W. 526 (1932); Courtney v. Courtney, 184 Okl. 395, 87 P.2d 660 (1938); Digby v. Digby, R.I., 388 A.2d 1 (1978); Pardue v. Pardue, 167 S.C. 129, 166 S.E. 101 (1932); Scotvold v Scotvold, 68 S.D. 53, 298 N.W. 266 (1941); Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977); Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971); Richard v. Richard, 131 Vt. 98, 300 A.2d 637 (1973); Freehe...