Stephens v. Stephens

• Decision Date: 24 April 1975
• Docket Number: No. 43483,43483
• Citation: 85 Wn.2d 290,534 P.2d 571
• Parties: Dianne STEPHENS, Appellant, v. James STEPHENS, Respondent.
• Court: Washington Supreme Court

Page 290

85 Wn.2d 290

534 P.2d 571

Dianne STEPHENS, Appellant, v. James STEPHENS, Respondent.

No. 43483.

Supreme Court of Washington, En Banc.

April 24, 1975.

McCormick Hoffman, Rees & Arnold, Paul Hoffman, Jr., Tacoma, for appellant.

Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, Warren R. Peterson, Joe H. Gordon, Jr., Tacoma, for respondent.

UTTER, Associate Justice.

In October 1973, plaintiff/appellant Dianne Stephens filed suit against her exhusband, defendant/respondent James Stephens, for injuries she received as a passenger in an automobile driven by him in an accident which occurred in October 1969, which the two were married. The trial court granted the defendant's motion for summary judgment, ruling that the statute of limitations had run on her claim. We reverse the trial court, and hold that the statute did not run because it was tolled until appellant reached her twenty-first birthday in April 1971.

The only relevant facts in this appeal are the dates of the several incidents and legal events alleged by the parties to be determinative of the commencement of the limitations period on appellant's claim. The dates are not disputed. Plaintiff and defendant were married on August 31, 1969, and the accident in which plaintiff was injured occurred on October 12, 1969. On May 14, 1970, an amendment to RCW 26.28.010 became effective giving 18-year- olds the right to sue and be sued. ¹ On October 8, 1970, the defendant husband reached his twenty-first birthday. Plaintiff reached her twenty-first birthday on April 30, 1971. On August 9, 1971, RCW 4.16.190 was amended changing the age for tolling the statute of limitations from 21 to 18. ² Plaintiff and defendant were divorced June 2, 1972. This court decided Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972) on August 31, 1972, eliminating interspousal tort immunity in this state. Plaintiff filed suit against the defendant on October 12, 1973.

The trial court held the limitations period began to run on May 14, 1970, the effective date of the amendments to RCW 26.28.010, giving 18-year-olds the right to sue and be sued as adults. Appellant contends it did not begin then because she could not have brought suit at that time, as the long-standing doctrine of interspousal tort immunity barred her from suing her husband while she was married to him. She argues her cause of action against her then-husband did not 'arise' until the Freehe decision (or at least until the parties' divorce, which may have 'vitiated' the immunity--Manion v. Pardee, 79 Wash.2d 1, 482 P.2d 767 (1971)) because it was precluded by ruling case law, and that where an action against a defendant is so prohibited the statute of limitations on it must be held impliedly tolled.

We are not persuaded that a judicial doctrine like that dispensed with in Freehe is the same as a positive rule of law such as was involved in Seamans v. Walgren, 82 Wash.2d 771, 514 P.2d 166 (1973), on which appellant relies. Seamans held that the statute of limitations was tolled on a claim against a legislator barred by Washington Const. art. 2, § 16, which provides that legislators 'shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.' Where such a constitutional or statutory obstacle to bringing suit is legislatively removed, it has been held that the statute runs on from the date of amendment lifting the bar. Mallard v. State, 194 So. 447 (Ct.App.La.1939); Rieseberg v. State, 40 Misc.2d 676, 243 N.Y.S.2d 887 (1963). A few courts have reached a similar result where there is a similar change in court-made law. See e.g., United States v. Oone 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972). Appellant would have us follow these cases. The majority and, we think, better rule, however, is that the statute is not tolled by the existence of adverse decisional law. Akers v. State Marine Lines, Inc., 344 F.2d 217, 220 (5th Cir. 1965); Zorgias v. SS Hellenic Star, 370 F.Supp. 591 (E.D.La.1972).

Any other holding would create serious problems. As pointed out in In re Estate of Horman, 5 Cal.3d 62, 71, 95 Cal.Rptr. 433, 440, 485 P.2d 785, 792 (1971):

Under claimants' tolling theory, whenever a precedent was overturned recognizing a right of action theretofore denied by case law, all persons who had been aggrieved between the decision of the precedent case and the decision of the overruling case could then file suit, no matter how many years had elapsed between. Such a proposition cannot be sustained.

For similar reasons in Versluis v. Haskell, 154 F.2d 935, 943 (10th Cir. 1946), the court reached the same conclusion, stating:

The only sure way to determine whether a suit can be maintained to a successful result is to try it. The application of the statute of limitations cannot be made to depend upon the constantly shifting state of the law, and a suitor cannot toll or suspend the running of the statutes by relying upon the uncertainties of controlling law. It is incumbent upon him to test his right and remedy in the available forums.

In addition to these considerations, we feel we are bound by the Freehe decision itself to reject appellant's argument. Appellant's position is that the limitations period should be held to have been tolled while interspousal suits were disallowed. Although the issue was never before decided in this state, it does appear to have been the common law that the statute does not run on interspousal claims barred by the traditional immunity rule. Curles v. Curles, 100 U.S.App.D.C. 43, 241 F.2d 448 (1957); Linker v. Linker, 28 Colo.App. 131, 470 P.2d 921 (1970); Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Fawcett v. Fawcett, 85 Wis. 332, 55 N.W. 405 (1893). But if we would have followed this rule while interspousal immunity was still the law, Freehe has eliminated that immunity, and has done so retroactively. Freehe held not only that immunity would not exist in future suits, but also that it did not exist on previously-arisen suits such as Mrs. Freehe's, and such as appellant's. It must follow, then, that any tolling of the statute of limitations which may once have been allowed was eliminated by Freehe, and the tolling was eliminated retroactively, just as was the immunity. Appellant cannot benefit from the old tolling rule, any more than respondent can take advantage of the once-existing rule of interspousal immunity from which it stemmed.

Thus we hold that appellant could and should have filed suit despite the unfavorable Pre-Freehe case law, and that the apparent improbability of success did not remove her responsibility to do so under the statute of limitations. This determination does not dispose of this appeal, however. The further question remains whether the statute of limitations was tolled not by interspousal immunity, but appellant's minority or the inability to sue resulting therefrom. As noted above, the trial court held that when RCW 26.28.010 was amended in May 1970 to give 18-year-olds the right to sue and be sued, the statute began to run on appellant's claim. This holding was on spite of RCW 4.16.190, which provided, until August 1971, that when a potential plaintiff was 'at the time the cause of action accrued either under the age of twenty-one years . . . the time of such disability shall not be a part of the time limited for the commencement of action.' The trial court held, and respondent argues, that this specific provision was 'impliedly repealed' by the change in the age of majority for capacity to sue in 1970. We do not agree.

Statutes are impliedly repealed by later acts only if '(1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede prior legislation on the subject; or (2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction.' In re Chi-Dooh Li, 79 Wash.2d 561, 563, 488 P.2d 259, 261 (1971). The tolling of the statute of limitations is ordinarily ancillary to the legal disability to sue, but the two legal principles are not so inextricably related that the statute granting the ability to sue can be said to 'cover the entire subject matter' of the tolling statute. Nor were the two sections, as they read between 1970 and 1971, incapable of reconciliation. Although it may seem anomalous to grant a power to sue while not withdrawing an exemption from the limitations requirements, it is not impossible. Inability to sue is one reason for statutory and common-law rules tolling the limitations period, but it is not the only reason. Collateral policies, unrelated to capacity to bring suit, may justify tolling provisions. See e.g., Hampton v. Hampton Holding Co., 17 N.J. 431, 111 A.2d 761 (1955) (discouraging interspousal lawsuits); Cary v. Cary, 159 Or. 578, 80 P.2d 886 (1938) (same).

The legislature may have had some such policy reason for failing to amend RCW 4.16.190 in 1970. Even though the delay in amendment may have been the result of oversight rather than positive policy, we cannot conclusively determine that it was so, and we cannot, therefore, imply a repeal or amendment where there was none. Nor can we accept respondent's contention that the statutory scheme as so construed would be so irrational as to constitute a grant of special privileges and immunities in contravention of Const. art. 1, § 21. The tolling of the statute was a permissible recognition of the need for special protection of minor plaintiffs before 1970, even though such minors could bring suit through a guardian ad litem. The same considerations justify the differential treatment provided persons under 21 but capable of suing in their own right after 1970.

Respondent argues, however, that even if RCW 4.16.190 was not impliedly amended in May 1970,...