Thompson v. Thompson

• Decision Date: 06 September 1963
• Citation: 105 N.H. 86,193 A.2d 439,96 A.L.R.2d 969
• Parties: , 96 A.L.R.2d 969 Nita THOMPSON v. Donald THOMPSON.
• Court: New Hampshire Supreme Court

Page 439

193 A.2d 439

105 N.H. 86, 96 A.L.R.2d 969

Nita THOMPSON v. Donald THOMPSON.

Supreme Court of New Hampshire.

Argued June 4, 1963.

Decided July 30, 1963.

As Corrected on Denial of Rehearing Sept. 6, 1963.

McLane, Carleton, Graf, Greene & Brown and G. Peter Guenther, Manchester, for plaintiff.

Devine, Millimet, McDonough, Stahl & Branch and John S. Holland, Manchester, for defendant.

WHEELER, Justice.

The only issue presented is whether a wife may maintain an action in this state to recover for injuries allegedly caused by the gross negigence of her husband while operating a motor vehicle in Massachusetts, where it is held that no cause of action can arise for such a wrong. Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637, 2 A.L.R.2d 632.

It is not disputed that it is well-settled law in this jurisdiction that although a wife may maintain an action of tort against her husband for acts of negligence committed here, her right to recover against him for such acts committed in another jurisdiction is determined by the law of that jurisdiction. Gray v. Gray, 87 N.H. 82, 175 A. 508, 94 A.L.R. 1404; Morin v. Letourneau, 102 N.H. 309, 156 A.2d 131.

It is concededly the law of Massachusetts that no cause of action arises in favor of husband and wife for a tort committed there by the other during coverture. In Callow, supra, the Court said '[r]ecovery is denied in such a case not merely because of the disability of one spouse to sue the other during coverture, but for the more fundamental reason that because of the marital relationship no cause of action ever came into existence.'

Notwithstanding the array of authorities which support the position adopted in Gray v. Gray, supra, the plaintiff urges that in the light of recent trends supporting the view that interspousal immunity is to be determined according to the law of the domicile of the parties, we re-examine Gray, supra, and 'announce a rule which will do justice to the litigants and at the same time make a major contribution to the law of conflict of laws.' See Ehrenzweig, Conflict of Laws 581-583 (1962).

In support of this trend the plaintiff submits, among others, the following authorities: Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218; Koplik v. C. P. Trucking Corp., 27 N.J. 1, 141 A.2d 34; Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814 (specifically overruling Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342; Ford: Interspousal Liability for Automobile Accidents in the Conflict of Laws; Law and Reason Versus the Restatement, 15 U.Pitt.L.Rev. 397 (1953); Hancock, The Rise and Fall of Buckeye v. Buckeye, 1931-1959; Marital Immunity for Torts in Conflict of Laws, 29 U.Chi.L.Rev. 237 (1962); Restatement (Second), Conflict of Laws, s. 390g (tentative draft No. 8).

The tentative draft of the Restatement (Second), Conflict of Laws, s. 390g provides: 'Whether one member of a family is immune from tort liability to another member of the family is determined by the local law of the state of their domicil.' See comments a and b. We think this is a significant change of position from that formerly adopted by the Restatement. It concededly adopts the holdings of recent decisions in the field (see Reporter's note to s. 390g supra), and undoubtedly reflects the influence of present-day writers who advance the argument that in suits arising from family relationship, it is sensible and logical to have disabilities to sue and immunities from suit determined by the law of the family domicile. Ford, supra, advances the proposition that to adopt and apply the law of a sister state without establishing as a prerequisite to the adoption of the foreign rule that it not frustrate any domestic policy of the forum would seem to be an evasion of the court's responsibility. Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218.

The ruling of the Trial Court in granting the defendant's motion to dismiss was clearly in accordance with our existing law. Gray v. Gray, 87 N.H. 82, 175 A. 508, 94 A.L.R. 1404; Boisvert v. Boisvert, 94 N.H. 357, 53 A.2d 515; Miltimore v. Milford Motor Company, 89 N.H. 272, 197 A. 330; Lumberman's Mut. Cas. Co. v. Blake, 94 N.H. 141, 47 A.2d 874. It is highly desirable that well-settled law shall not be struck down without compelling reason. In the light of the well-reasoned recent decisions, casting doubt upon the rule established in Gray v. Gray, supra, and subsequent cases, we believe that the time has come to re-examine the position taken by our cases.

Rules prohibiting interspousal suits are thought to have two purposes; the preservation of domestic harmony, and the avoidance of collusive suits. But since the law of this jurisdiction permits interspousal suits without fear of collusion or of discord among the families within its borders, suit between New Hampshire spouses is hardly the concern of Massachusetts. In Emery v. Emery, 45 Cal.2d 421, 428, 289 P.2d 218, 223, the court pointed out: 'We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the family domicile.' See also Koplik v. C. P. Trucking Corp., 27 N.J. 1, 141 A.2d 34; Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814; Ehrenzweig, Conflict of Laws 581-583 (1962).

As the plaintiff points out, in each case but one (Boisvert v. Boisvert, supra) decided since we have followed Gray v. Gray, supra, a...