Tader v. Tader

• Decision Date: 05 June 1987
• Docket Number: No. 86-316,86-316
• Parties: Margaret TADER, Appellant (Plaintiff), v. William TADER, Appellee (Defendant), Overland West, Inc., a Utah corporation, The Hertz Corporation, a Delaware corporation, and Hertz System, Inc., a Delaware corporation, (Defendants).
• Court: Wyoming Supreme Court

Page 1065

737 P.2d 1065

Margaret TADER, Appellant (Plaintiff), v. William TADER, Appellee (Defendant) Overland West, Inc., a Utah corporation, The Hertz Corporation, a Delaware corporation, and Hertz System, Inc., a Delaware corporation, (Defendants).

No. 86-316.

Supreme Court of Wyoming.

June 5, 1987.

Robert N. Williams, Jackson, and Patrick J. Kenneally, Ltd., Chicago, Ill., for appellant.

J. Scott Burnworth of Schwartz, Bon, McCrary & Walker, Casper, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

The question whether interspousal tort immunity should be abrogated in Wyoming comes to this court from trial court entry of a partial summary judgment in favor of the defendant husband. We answer the question in the affirmative and reverse the partial summary judgment.

While being driven by William Tader in December, 1982 in Teton County, a rental car lacking snow tires went into a skid and struck another vehicle head-on. Mr. Tader's passenger, his wife, Margaret Tader, was seriously injured.

In the resulting litigation, Margaret Tader filed suit against her husband, the car rental agency, and Hertz Corporation. The case comes to this court by trial court decision that the wife, now appellant, by the application of interspousal immunity was not entitled to recover any amount greater than $10,000.00, which was the minimum requirement under the Wyoming Motor Vehicle Safety-Responsibility Act, § 31-9-101 et seq., W.S.1977, and the Uninsured Motor Vehicle statute, § 31-10-101, W.S.1977. Actual negligence liability has not been determined. ¹

WYOMING CASE PRECEDENT

Five cases are cited as precedent by appellee to justify the continued application of the immunity doctrine. In McKinney v. McKinney, 59 Wyo. 204, 135 P.2d 940 (1943), Tom McKinney, a fabled practitioner of the legal arts in Wyoming, was alleged to have "operated said automobile in a grossly negligent manner" which resulted in a severe injury to his 39-year old wife. A demurrer was filed and sustained, and on appeal one justice voted to retain the immunity doctrine as a justification for complaint denial, a second justice, Justice Blume, contended that the demurrer was well placed because it pleaded the husband-and-wife status and did not plead insurance, with leave remaining upon remand to replead, and the third justice dissented, contending that the Married Women's Act made fundamental changes in the law, and that

"There is * * * no rule of law or morals that gives a husband the right to inflict a personal injury on his wife." 135 P.2d at 958.

From that stage of vacuous authority, this court, with two different justices sitting considered parental immunity in Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954). The demurrer was again sustained in trial court, and this court affirmed, holding that the unemancipated minor son by his natural mother as next friend, could not sue and obtain a judgment against the natural father based on simple negligence, whether or not insured.

Next, in Vossler v. Peterson, Wyo., 480 P.2d 393 (1971), we encountered a tort suit by the employee husband against the employer for injuries sustained from the alleged negligence of a co-employee, the spouse. Although the opinion included dicta to suggest that insurance would not be a determinative factor, the Vossler court declined to rule on the validity of such a suit, and reversed the case to allow a more comprehensive trial court record to be developed. A concurring opinion emphasized that no decision was being made about the effect of insurance.

Then came Oldman v. Bartshe, Wyo., 480 P.2d 99 (1971), an action by the administrator of the estate of a child against the administratrix of the estate of the deceased father for wrongful death. A motion to dismiss for failure to state a claim based on family immunity was granted by the trial court. This court reversed, and distinguished Ball, without clearly defining what the parameters of a right of action might be.

Lastly, we considered the subject of family immunity in a dispute between the Insurance Commissioner and Allstate Insurance Company, Allstate Insurance Company v. Wyoming Insurance Department, Wyo., 672 P.2d 810 (1983), in regard to the sweep and parameters of a family exclusion in the Allstate automobile policy clause as being contendably contrary to the stated public policy of Wyoming in the Motor Vehicle Safety-Responsibility Act. The majority agreed with the Insurance Commissioner (present District Judge John T. Langdon) and voided the exclusion to the extent of the required coverage. Two justices specially concurred, but in their discussion strongly supported the continued existence of interspousal and interfamily immunity.

Separately, we are led by brief and oral argument to McClellan v. Tottenhoff, Wyo., 666 P.2d 408 (1983), where dram-shop liability was prospectively enunciated. The dissent in this three-to-two opinion concluded that imposition of liability for bar-owner misconduct should be constrained to the legislature.

Addressing, then, the issue of interspousal immunity, and confining this decision solely to that issue here presented by certiorari, we do not find anything in past precedent of this court or the obvious trend in national cases which would disfavor abrogation or justify our retention of the outdated inhibition of equality. ²

In review of the cases where the doctrine has been repudiated, the explanation and discussion ranges from a comprehensive historical analysis back to Roman law, with exhaustive case evaluation from many jurisdictions, to the simplistic statement of other courts that the time has come and no justification for retention remains. Perhaps as justified as any reason, is the fact that if two married Wyomingites leave on an automobile journey, if they go to North Dakota, South Dakota, Nebraska, or Colorado, no interspousal immunity will be encountered. However, if traveling to Montana only, or while traveling through Utah and then on to Oregon, the doctrine apparently continues. In philosophic contemplation, it could be asked why citizens in-state enjoy less rights than encountered in most other states where they might choose to travel.

Two more persuasive philosophic bases for abrogation are present. The jurisprudence of this nation has moved too far into exception-written, pigeonholed, result-oriented conclusions. To the extent compatible with other soundly based criteria, standards of general application and rules of comprehensive persuasion are singularly beneficial. Simpson v. Kistler Investment Company, Wyo., 713 P.2d 751 (1986). We believe that a direction of the Wyoming jurisprudence that affords liability for negligence without "only ifs" or "but not nows" gives cogently justified and rationally understood justice to our citizens.

We have a second reason to consider the character-determined immunity involved in the relationship between husband and wife. If we consider the rights provided in Art. 1, § 6, Wyoming Constitution, due process; Art. 1, § 34, Wyoming Constitution, uniform operation; and Art. 10, § 4, Wyoming Constitution, proscribing the enactment of laws limiting the amount of damage to be recovered, it is hard to find a philosophic basis in constitutional guarantees to justify an exception when one spouse through negligence or intentional conduct injures another.

The age-old contentions of invoked family disharmony and conjectural insurance fraud weigh no greater with this court than with a present significant majority of other jurisdictions where also rejected. Some well-phrased comments extricated from the multitude of cases are illustrative:

"What thus unfolds from a canvass of the doctrine of interspousal immunity across the country is that its application is far from consistent or uniform; its efficacy as a legal principle has divided jurisdictions; and its utility as a social tool or instrument of justice has confounded courts, legislators and commentators. It is clear, nonetheless, that despite its survival in varying forms, interspousal immunity is no longer the doctrinal monolith it was in olden times." Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951, 955 (1978).

"Whatever may be the law elsewhere, if the common-law fiction of unity ever existed in this state, it does not exist here now. Hedlund v. Hedlund, 87 Colo. 607, 290 P. 285, 286 [1930], and the statute and cases there cited. In the Hedlund Case we said: 'First, it is assumed that the common-law fiction that husband and wife are one still persists in this state. In Whyman v. Johnston, 62 Colo. 461, 163 P. 76 [1935], we said that the fiction of one legal personality no longer exists. One has but to read the statutes of the state and the decisions of this court and of the Court of Appeals to realize that in the present state of the law the so-called unity of husband and wife is a mere figure of speech no longer having any practical significance.' " Rains v. Rains, 97 Colo. 19, 46 P.2d 740, 742 (1935).

"Section 6, article 2, Colorado Constitution, is as follows: 'That courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character. * * * ' In this state a wife, as we have seen, is a person independent of the husband, and this section guarantees her a remedy for every personal injury without making any exception as to the person inflicting the injury, who may be her husband or a third person." Id. at 742.

As wisdom demonstrated in 1935:

"We are not unaware of the fact that in the greater number of jurisdictions the courts have held that the wife cannot sue the husband for an injury to her person. * * * In some of the cases the courts construed statutes wholly unlike ours; in others, the statutes somewhat resemble ours; and in still others, the statutes are practically the same as ours. It would be a fruitless task to discuss the various terms of the many statutes. To...