Windauer v. O'Connor, 10373--PR
| Citation | 485 P.2d 1157,107 Ariz. 267 |
| Decision Date | 17 June 1971 |
| Docket Number | No. 10373--PR,10373--PR |
| Parties | Kathryn M. WINDAUER, Appellant, v. Joseph O'CONNOR, Appellee. |
| Court | Supreme Court of Arizona |
Herbert E. Williams, Tucson, for appellant.
Messing & Hirsh, by William Messing, Tucson, for appellee.
This case comes to us on a petition for review of a decision of the Court of Appeals, Division Two. Windauer v. O'Connor, 13 Ariz.App. 442, 477 P.2d 561 (1970). Decision of the Court of Appeals is vacated.
The facts in the case are relatively simple. Joseph O'Connor and Kathryn Windauer had been married for a brief two years when Joseph shot Kathryn during an argument. At the time of the shooting, Joseph was 62 years of age and Kathryn was 72. Two days thereafter Kathryn instituted an action for divorce, alleging that her husband had attempted to kill her. A few months later the divorce was granted and Kathryn received alimony, cash and certain property.
A short time after the divorce decree was entered, Joseph was convicted on his guilty plea to a charge of assault with intent to commit murder. He is presently serving a sentence in the Arizona State Prison.
Two months or so after the decree of divorce was entered Kathryn filed a complaint sounding in tort, alleging that Joseph had willfully and intentionally fired a bullet into plaintiff's head with the intent to kill her. The trial court granted defendant's motion for summary judgment on the grounds of interspousal tort immunity and res judicata.
Interspousal tort immunity is an ancient common law doctrine founded on the theory of the legal unity of husband and wife (1 Blackstone, Commentaries 433). As recently as 1968 the Arizona Supreme Court observed in Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968), 'Arizona has adhered to the common law position that interspousal tort suits are not permitted.' 103 Ariz. p. 563, 447 P.2d p. 255. However, an intentional tort inflicted by one spouse on another so clearly destroys the concept of unity that the basis for the doctrine is lost.
At this juncture we are not constrained to overturn the previous decisions of this court with regard to interspousal torts, nor do we consider our subject case an appropriate vehicle if we were so inclined. We are not unmindful of our decision in Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), wherein we eliminated the doctrine of parental tort immunity in an automobile negligence case. We pointed out there that this doctrine was a creature of American jurisprudence.
We here hold that a spouse may, after a divorce from the offending spouse, sue to recover damages for an intentional tort.
We pause briefly to point out the fact that in a community property state such as ours a complete abrogation of interspousal tort immunity is fraught with many problems. One...
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Twyman v. Twyman
...case and the divorce case must be litigated separately. See e.g. Walther v. Walther, 709 P.2d 387, 388 (Utah 1985); Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Simmons v. Simmons, 773 P.2d 602, 605 (Colo.Ct.App.1988). Other states require joinder of the two actions. See, e.g.......
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Guffy, By and through Reeves v. Guffy
...of specific statute providing otherwise, the damages recovered would be controlled and managed by the husband. Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971). Some states do not have married women's acts and immunity in those states may be based on the common law doctrine of the ......
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Boblitz v. Boblitz, 126
...of specific statute providing otherwise, the damages recovered would be controlled and managed by the husband. Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971). Some states do not have married women's acts and immunity in those states may be based on the common law doctrine of the ......
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§ 8.01 Personal Injury Claims
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