Smith v. Smith

Citation205 Or. 286,287 P.2d 572
PartiesNaomi Jean SMITH, Appellant, v. Leo L. SMITH, Respondent.
Decision Date09 September 1955
CourtSupreme Court of Oregon

Gordon G. Carlson, Roseburg, argued the cause for appellant. With him on the brief were Yates, Murphy & Carlson, Roseburg.

Kenneth Roberts, Portland, argued the cause for respondent. On the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland.

Before WARNER, C. J., and TOOZE, LUSK, BRAND, LATOURETTE, and PERRY, JJ.

BRAND, Justice.

The plaintiff, Naomi Jean Smith, brought this action for damages against her husband, Leo L. Smith, under the provisions of the Oregon Guest Statute, ORS 30.110. The complaint alleges that the defendant operated an automobile, in which the plaintiff was a passenger, in a grossly negligent manner and in reckless disregard of the rights of the plaintiff. The defendant filed a general demurrer which was sustained. Plaintiff failed to plead further and the action was dismissed.

The sole question presented on this appeal is whether a wife may sue her husband for damages caused by his gross negligence, under the Guest Statute. The question is new to this jurisdiction, but every phase of this problem has been discussed at great length in scores of judicial decisions, and by many eminent text writers. The weight of authority pro and con has been repeatedly estimated and a repetition of what has been well done would serve no useful purpose.

No judicial decisions need be cited for the proposition that at early common law neither spouse could maintain action against the other for either a personal or a property tort, whether it was committed before or during marriage. The common-law rule of nonliability has been universally recognized. See Prosser on Torts, pp. 898 and 899; and McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1031 et seq.; Brandt v. Keller, 413 Ill. 503, 109 N.E.2d 729. If then, this action can be maintained, it must be because the common-law rule has been appropriately changed by statute, or should be changed by the court in the exercise of the power to modify ancient rules of common law by reason of changed social conditions, resulting in a recognizable modification of the public policy of the state. In this connection we are cited to a declaration of this court in Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 450, as follows:

'Whatever may be the early common law rule, we should not be bound thereby unless it is supported by reason and logic. The law is not static. It is a progressive science. What may have been a wholesome common law rule a hundred years ago may not be adapted to the changed economic and social conditions of this modern age. In Rozell v. Rozell, 281 N.Y. 106, 112, 22 N.E.2d 254, 257, 123 A.L.R. 1015, it is said:

"The genius of the common law lies in its flexibility and in its adaptability to the changing nature of human affairs and in its ability to enunciate rights and to provide remedies for wrongs where previously none had been declared."

Again, in the concurring opinion of Justice Rossman, we read:

'* * * Society is not static and conduct is in a continuous state of flux. Mankind is constantly altering the social value it places upon different phases of life. The law must keep pace with life and develop with the expanding enlightenment of the age.' 189 Or. 282, 302, 218 P.2d 445, 453.

Other decisions have recognized the power and occasionally the duty of this court to modify ancient and outmoded rules of the common law under the compulsion of changed economic or social conditions. Peery v. Fletcher, 93 Or. 43, 182 P. 143; United States F. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A.L.R. 829; Turney v. J. H. Tillman Co., 112 Or. 122, 228 P. 933; Re Water Rights of Hood River, 114 Or. 112, 227 P. 1065.

In the Cowgill case this court exercised the power to which we have referred:

'After a careful consideration of the authorities, we think the general rule--so well established by the authorities--should be modified to allow an unemancipated minor child to maintain an action for damages against his parent for a wilful or malicious personal tort. * * *' 189 Or. 282, at page 301, 218 P.2d 445, at page 453.

Contrasted with the liberal views expressed in the cases cited, we find frequent recognition of the classic doctrine that the rules of the common law are binding upon the courts in the absence of statute, and that any serious change in the public policy of the state is a matter solely for legislative determination. Landgraver v. Emanuel Lutheran Charity Board, Inc., Or., 280 P.2d 301. Between these apparently conflicting doctrines, (1) the duty to follow, and (2) the right to modify, this court must direct its course with gingerly care.

We shall first consider whether any Oregon statute has conferred upon a wife the right of suit and recovery against her husband for a negligent tort. In this connection we shall make no distinction between cases of ordinary negligence and those involving gross negligence. It can be persuasively argued that there is a real distinction between torts which are based upon negligence, ordinary or gross, on the one hand, and torts involving intentional injury, upon the other. But this court should not establish any rule which would revive the old distinction between gross and ordinary negligence by holding that in the one case a wife may sue her husband, but in the other she cannot. The confusion inherent in the administration of the Oregon Guest Statute should not be extended to other and wider areas. A review of the Constitution and statutes will furnish a profitable background.

The Constitution of Oregon, as adopted in 1857, contained the following provisions:

'* * * every man shall have remedy by due course of law for injury done him in his person, property, or reputation.' Constitution of Oregon, Article I, § 10.

The same guaranty appears in Article I, § 10 of the present Constitution. The Constitution also provides that:

'The property and pecuniary rights of every married woman, at the time of marriage or afterwards, acquired by gift, devise, or inheritance shall not be subject to the debts, or contracts of the husband; and laws shall be passed providing for the registration of the wife's separate property.' Oregon Constitution, Article XV, § 5.

By the Laws of October 11, 1862 it was provided:

'When a married woman is a party, her husband shall be joined with her, except that;

'1. When the action concerns her separate property she may sue alone.

'2. When the action is between herself and her husband, she may sue or be sued alone; and in no case need she prosecute or defend by a guardian or next friend.' General Laws of Oregon (Deady's Code) 1845-1864, ch. 1, § 30, p. 145.

The law was amended in 1876 to read as follows:

'When a married woman is a party, her husband shall be joined with her, except that,----

'1. When the action affects her separate property, or when the cause of action is for a wrong committed against her person or character, or is for wages due for her personal services, she may sue or be sued alone;

'2. When the action is between herself and her husband, she may sue or be sued alone; and in no case need she prosecute or defend by a guardian or next friend.' 1 Bellinger and Cotton's Anno. Codes and Statutes of Oregon, p. 90, Of Parties to Actions, § 30.

This act remained on the books until its repeal by Chapter 144, Laws of 1927, page 161. In 1878 the following statute was enacted:

'A wife may receive the wages of her personal labor, and maintain an action therefor in her own name, and hold the same in her own right, and she may prosecute and defend all actions at law or in equity, for the preservation and protection of her rights and property as if unmarried.' 1 Bellinger and Cotton's Anno. Codes and Statutes of Oregon, p. 91, § 31.

This act was also repealed by Chapter 144, Laws of 1927.

The laws of 1862 contained the following provision:

'No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representatives or successor in interest.' General Laws of Oregon (Deady) 1845-1864, § 37, p. 146.

This law remained upon the books until the enactment of Oregon Revised Statutes. See O.C.L.A. § 1-311. The statute of October 11, 1862 provided that all persons may be witnesses, subject to the exceptions expressed therein. It then continued:

'A husband shall not be examined, for or against his wife, without her consent, nor a wife, for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage. But the exception does not apply to a civil action, suit or proceeding, by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other;' General Laws of Oregon (Deady) 1845-1864, § 702, p. 325.

This portion of the statute remained on the books in its original form until the enactment of Oregon Revised Statutes. O.C.L.A. § 3-104; and see ORS 44.040. The law of January 13, 1854 provided:

'A husband and wife may, by their joint deed, convey the real estate of the wife, in like manner as she might do by her separate deed, if she were unmarried * * *.' General Laws of Oregon (Deady) 1845-1864, § 2, p. 646.

This portion of the statute remained on the books until the adoption of the Oregon Revised Statutes from which it was omitted 'as unnecessary in view of the removal of a wife's civil disabilities by OCLA 63-202 (ORS 108.010.' Reviser's Notes, ch. 108, p. 797. It was however impliedly repealed by the Law of ...

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