White v. White
| Decision Date | 30 September 1980 |
| Docket Number | No. 52504,52504 |
| Citation | 618 P.2d 921 |
| Parties | Marilyn S. WHITE, Appellant, v. Robert W. WHITE and Edward White, Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Oklahoma County; Stewart M. Hunter, Trial Judge.
In this cause, we are asked to determine whether a petition filed in the District Court was sufficient to state a cause of action in favor of the plaintiff and against the defendants.
Holding that the trial court erred in sustaining the demurrer and dismissing the case, we remand the case to the trial court with instructions.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Rex D. Brooks, Oklahoma City, for appellant.
Bruce V. Winston, Cooper, Stewart & Elder, Oklahoma City, for appellees.
In this case, we are asked to determine whether the trial court committed reversible error in sustaining a demurrer to the petition in a personal injury action, then dismissing the case with prejudice.
In substance, the petition before the trial court alleged (1) that the plaintiff, Marilyn S. White, was a passenger in a truck driven by Robert W. White, traveling south on Interstate 35 near the city of Louisville, Texas, when the defendant, Robert W. White, lost control of his truck, overturning it, causing injury to plaintiff's body; (2) that the plaintiff's injuries were caused by negligent acts of the defendant, Robert W. White, in that he failed to keep a proper lookout for vehicles properly on the highway, he followed the vehicle in front of him too closely, in violation of specific Texas statutes which were pleaded and attached; that Robert White drove his vehicle into a space between the divided roadway and failed to keep his vehicle only upon the righthand roadway, in violation of another specific Texas statute which was pleaded; and (3) that the same defendant drove his vehicle at a speed that was greater than reasonable and prudent under the circumstances, and in violation of another specific Texas statute which was also pleaded and attached. The plaintiff pleaded that as a result of said negligent actions, she suffered broken bones, and other injuries to the body, resulting in permanent disability, medical expenses, and lost income-with her damages totaling some $200,000.00.
The plaintiff also alleges that at the time of the accident, the defendants, Robert W. White and Edward White, were engaged in a joint venture or partnership, operating a long-haul truck tractor-trailer, and that the plaintiff was employed by the defendants to help operate the truck. That at the time of the accident, she was within the scope of her employment, and that the defendants failed to carry Workmen's Compensation Insurance, and that she has elected to proceed in the District Court.
Attached to the petition, and made a part thereof, was the Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance, in which the Corporation Commission of Oklahoma certified that Employers Casualty Corporation 1 had issued to Edward White of Fort Cobb, Oklahoma, certain insurance policy covering the obligations imposed upon the insured by the Oklahoma Motor Vehicle provisions.
In response to this petition, the defendants, Robert W. White and Edward White, filed special demurrers in which they demurred to the petition on the following grounds:
(1) That the plaintiff has no legal capacity to sue;
(2) That the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants.
In presenting these demurrers, the defendants relied on facts which did not appear on the face of the petition. Thus, the demurrers became speaking demurrers.
In arguing that the demurrers should be sustained, both Robert and Edward White argue that the plaintiff, Marilyn S. White, lacks the capacity to sue because she is the wife of Robert W. White, and under the laws of Texas one spouse may not bring a personal injury action against the other. The fact that the plaintiff and Robert W. White are husband and wife is a fact which does not appear on the face of the petition.
Additionally, in their second argument, the defendants rely upon other facts which do not appear upon the face of the petition. The defendants argue that in fact the plaintiff was not their employee, but was a co-employer.
Although this new matter-the marital relationship between the plaintiff and Robert White and the claimed business relationship between the plaintiff and the defendants-might properly be raised as affirmative defenses in the answer, such facts may not be considered by the trial court in ruling on the demurrers, for such facts do not appear on the face of the petition. 2 As the facts pleaded in the petition state a cause of action in favor of the plaintiff and against the defendants, and as the new matter offered by the defendants was not properly considered by the trial court in ruling on the demurrers to the petition, we hold that the trial court erred in sustaining the demurrers to the petition and in dismissing the cause of action. Accordingly, we remand the case to the District Court with instructions.
In arguing that the plaintiff lacked capacity to bring a personal injury action against her husband, the defendants relied upon Texas interspousal immunity laws. However, such laws do not exist in Oklahoma. In point of fact, this Court has on numerous occasions held that a party may maintain a tort action against his or her spouse. 3 Thus, under Oklahoma law, the plaintiff could maintain a tort action against her spouse, whereas no suit could be maintained under Texas law.
An issue presented to the trial court-and an issue which will again be presented on remand-is which law to...
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