State Farm Mut. Auto. Ins. Co. v. Leary

• Citation: 544 P.2d 444,168 Mont. 482
• Decision Date: 30 December 1975
• Docket Number: No. 13013,13013
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Appellant, v. James P. LEARY et al., Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 444

544 P.2d 444

168 Mont. 482

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Appellant, v. James P. LEARY et al., Defendants and Respondents.

No. 13013.

Supreme Court of Montana.

Submitted Nov. 4, 1975.

Decided Dec. 30, 1975.

McKeon & Skakles, Anaconda, Michael J. McKeon argued, Anaconda, for appellant.

Scanlon, Brolin & Connors, Anaconda, Joseph C. Connors argued, Anaconda, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an appeal from an order of the district court Silver Bow County, granting a summary judgment in an action to declare the rights and duties of an insurance company.

On July 27, 1973, Herman and Sylvia Meyers, husband and wife, were involved in an automobile accident approximately ten miles south of Butte, Montana. Herman Meyers was driving the automobile, with Sylvia Meyers as a passenger. Through the alleged negligence of Herman Meyers, their automobile collided with another motor vehicle, killing Herman Meyers instantly. Sylvia Meyers survived for eleven days, dying on August 7, 1973, as a result of injuries received in the accident.

Two suits were filed in district court. The first suit was a separate cause of action by Edward Meyers, the son of Herman and Sylvia Meyers', against Herman Meyers' estate, for the wrongful death of Sylvia Meyers. The second suit was by Jack M. Scanlon, administrator of the estate of Sylvia Meyers, for medical, hospital and funeral expenses and for pain and suffering. Both suits were based on the alleged gross negligence of Herman Meyers in the operation of the automobile.

After the commencement of these suits, James P. Leary, administrator of Herman Meyers' estate, tendered the suit papers to the insurance company to provide a defense under the terms of the automobile liability policy issued to Herman Meyers. The insurance company subsequently filed a complaint seeking a declaratory judgment as to its rights and duties under the insurance policy.

After the answer was filed, all parties moved for a summary judgment. The district court granted respondents' motion and denied appellant's motion. The applicable protions of the summary judgment provide:

'IT IS ORDERED that the death of Plaintiff's insured Herman H. Meyers, prior to the death of his surviving spouse terminated the marital relationship and the insurance policy defense (interfamily immunity exclusion) relied upon by the Plaintiff as a matter of law.

'IT IS FURTHER ORDERED that the insurance policy defense based upon the interfamily immunity doctrine relied upon by the plaintiff is void as contra to the public policy of this state and is discriminatory.'

The order also required the insurance company to defend the estate of Herman Meyers against claims of the son and the claim of the estate of Sylvia Meyers, and to pay up to its policy limits any amounts it might become obligated to pay as a result of this accident.

The insurance company appeals from this summary judgment.

We have been asked to review the interfamily tort immunity doctrine as applied in Montana, and determine whether it is void as contrary to public policy.

This Court in State ex rel. Angvall v. Dist. Ct., 151 Mont. 483, 484, 444 P.2d 370, has always followed the rule that:

'* * * a wife may not maintain an action against her husband for personal injuries inflicted upon her by her husband while they are married.'

This postion was first declared by Conley v. Conley, 92 Mont. 425, 15 P.2d 922, and was reaffirmed in Kelly v. Williams, 94 Mont. 19, 21 P.2d 58, and Angvall.

This rule is based on the common law rule prohibiting suits between husband and wife. Respondents ask that this Court reject the common law doctrine as being opposed to the public policy. The Oregon Supreme Court faced with a similar request regarding interfamily tort immunity in Smith v. Smith, 205 Or. 286, 287 P.2d 572, 578, held:

'The question presented is, therefore, whether this court should in a case of this kind express its own conclusions as to the public policy of the state relative to this issue. In that connection we recognize that when the public policy of the state is clearly expressed by statute, it will control, and that in general, questions of public policy are primarily, though not exclusively, for legislative determination.'

The Montana Legislature has enacted statutes granting a married woman the right to prosecute and defend actions in her own name (section 36-110, R.C.M.1947) and sue or be sued as though she were sole (section 36-128, R.C.M.1947). Respondents argue these statutes modify the common law doctrine so as to allow tort suits between husband and wife. We do not agree. We believe the United States District Court for the District of Montana, in Dutton v. Hightower and Lubrecht Construction Co., 214 F.Supp. 298, 300, was correct in stating these statutes

'* * * are procedural and create no new rights, but only remove the common law disability of married women to enforce their rights otherwise created and existing.'

The District of Columbia Married Woman's Act was similarly viewed in Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, 1182, wherein the Supreme Court stated:

'The statute was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which, at common law, must be brought in the joint names of herself and husband.'

The intervening death of Herman Meyers would not end the tort immunity as the cause of action arose during coverture, which is the critical time for imposition of the doctrine and defense. Angvall, supra.

Respondents cite the minority rule allowing interspousal tort actions by judicial modification of the common law rule, as stated in Mosier v. Carney, 376 Mich. 532, 138 N.W.2d 343, and citations contained therein. See, also, Karell, Toward Abolition of Interspousal Tort Immunity, 36 Mont.L.Rev. 251. We do not believe this is an area requiring judicial modification of the common law to prevent great injustice. This is a question of public policy best left to the legislative branch of government which is the proper body to determine and set forth public policy.

Respondents argue that their rights to recover as a personal representative of the deceased and as son of the deceased are independent of the potential...