Rogers v. Yellowstone Park Company , 97 Idaho 14 ( 1975 )

SHEPARD, Chief Justice

(dissenting).

I respectfully dissent from the opinion of the majority for a number of reasons. I first disagree with the statement that “the critical issue” involves the characterization of whatever recovery may be made. The threshold question in this case is whether or not the long standing principle of common law commonly known as “interspousal immunity” should be overruled in Idaho.

It has been stated in connection with the doctrine of interspousal immunity “in view of the paucity of authority, the unsatisfactory and inconsistent character of the reasons advanced, the different and inconsistent treatment of husband and wife and parent and child, in several instances by the same court, and the changed economic conditions of the present day, the problem of a cause of action for personal injury should be considered an open question, meriting a more careful and exhaustive analysis, a more critical appreciation of the factors involved, and a more rational treatment than it has received in the past.”

In my judgment the majority opinion has not approached the threshold question with any analysis, critical appreciation or understanding of the factors involved.

The historical basis of the common law treatment of the relation of husband and wife is obscure but has several possible sources. A mixture of religion, the Bible and medieval metaphysics is suggested as one origination; a second is suggested as the paterfamilias of Roman law, and the third and perhaps most important is the natural law concept of the family as an informal unit of government. See McCurdy, Torts Between Persons and Domestic Relation, 43 Harvard L.Rev. 1030.

It is necessary to point out a number of matters of preliminary importance. Idaho, as distinguished from a number of other states, has enacted no legislation directly affecting this question nor has the majority opinion utilized statutory construction as a method to obtain its result. See cases collected 43 A.L.R.2d 632.

The mere fact that a doctrine has existed in the common law for many centuries does not in and of itself give any reason for its perpetration. At the same time the mere fact that a doctrine has been in existence for hundreds of years is no excuse to discard it as archaic and without merit to our society of today without at least a passing analysis as to its merit. Unfortunately the majority opinion does not indulge in such analysis.

In my judgment, contrary to the decisions of some courts, the problem has nothing to do with statutes commonly referred to as Married Women’s Acts or what is today in the vernacular referred to as “women’s lib.” The doctrine of interspousal immunity prohibits not only a wife from suing her husband but a husband from suing his wife.

It is clear upon analysis that from time immemorial a husband and wife have legally been considered as a unit. Many other units are recognized by the law such as corporations, partnerships, voluntary associations and others. Persons who voluntarily enter into a particular relationship recognized by the law acquire certain rights and sacrifice others. By the entry into such relationship they render nonactionable many acts and/or omissions which without the relationship would be actionable. Conduct within a family differs from ordinary conduct since the members are in a common establishment and engaged in a common domestic enterprise.

The questions arising from a change in such relationship are voluminous and staggering. Just a few examples may suffice. To what standard of care are members of the family to be held? Is that standard the same that applied to one living outside the family relationship or is it something special? Is the standard of due care required of a wife in the preparation of food the same standard as one outside the family relationship? What of the standard of care of a husband to maintain a staircase? What of the doctrine of assumption of the risk? What of the doctrine of contributory negligence? What of the doctrine of comparative negligence ? Does every touching against the will of the other constitute a battery? What of the right of privacy ?

It is true that the courts in a minority of jurisdictions have permitted an action between spouses for a negligent tort. 43 A.L.R.2d 664—670. It is suggested that the dissent of Justice Harlan, joined by Holmes and Hughes, in Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180 (1910) had much influence in the establishment of the minority view. It should be noted, however, that many of those jurisdictions have abrogated the doctrine of interspousal immunity on the basis of some specific statutory provision. Contrary to the implication of the majority decisión, the abrogation by courts of inter-spousal immunity is a minority view and when adopted has been done so generally by divided courts.

As pointed out in the opinion of the majority the Idaho Court in the case of Lorang v. Hays, 69 Idaho 440, 209 P.2d 733 (1949) abolished the common law rule prohibiting a wife from maintaining an action against her husband for a wilful tort. The Lorang decision was specifically limited to the commission of an intentional tort by one spouse against the other. The majority decision then cites a statement from Prosser, Law of Torts, 4th ed. which supposedly dispenses with the doctrine of interspousal immunity upon the basis that it is based “on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed.”

Although it may be heresy to disagree with the gospel according to Prosser, nevertheless if the good professor is actually suggesting that such statement justifies the abolition of interspousal immunity in negligence cases as distinguished from intentional torts I must confess my admiration at the sine qua non of non sequiturs. See also Smith v. Smith, 205 Or. 286, 287 P.2d 572 (1955). The glaring fallacy in the majority’s utilization of Prosser and Lorang v. Hays, supra, is the illogical leap from intentional tort to negligence.

For additional discussion and comment both pro and con, see, Abrogation of Inter-spousal Immunity — An Analytical Approach, 19 DePaul L.R. 590 (1970) ; Hume, Intra-Familial Immunity, 17 Federation Ins. Counsel Quarterly 45 (1966); Comment, 11 Duquesne L.R. 719 (1973); Inter-spousal Immunity — A Policy Oriented Approach, 21 Rutgers L.R. 491 (1967); Hotes, Tort Actions Between Husband and Wife, 9 Clev. Mar.L.R. 265 (1960); Garlich, Interspousal Tort Immunity, 8 Willamette L.J. 427 (1972); Intrafamily Litigation, 1970 Ins.Law J. p. 133.

Our society over the years has held to the belief that when a man and woman marry they should and must expect and anticipate that during the marriage there will be events which between different persons might be classed as negligence. As between other persons such events might result in a cause of action for negligence. However, because society views a man and woman who have voluntarily entered into such marital relationship as a unit, such events do not give rise to a cause of action.

The instant case is couched in terms of negligence resulting from the operation of an automobile but that is only the instant case. The reason for the instant case may be that the family considered itself to be in “the good hands” of an insurance carrier. Such does not however answer the question as to where we go from here.

At the risk of appearing facetious, does the majority’s decision anticipate legal action between husband and wife in the following logical extensions of the instant action :

The wife negligently waxes the floor causing it to be slippery and giving no warning to the husband who returns home late at night, falls on the floor and injures himself; the wife negligently serves spoiled food to the husband causing sickness and loss of work to the husband; the husband negligently fails to maintain a garage door which falls, strikes the wife and renders her a quadriplegic.

Is the decision of the majority herein limited to the abrogation of interspousal immunity for personal injuries only, or is it to be extended to claims for damages of property? For example, does the majority seriously contemplate action if a wife while dusting were to negligently knock over and break a $500 vase which was given to the husband as a family heirloom and constitutes his separate property; consider the situation of the husband negligently having an automobile accident totally destroying the $4,000 community property family automobile.

While the preceding parade of horribles may appear facetious, it nevertheless demonstrates questions which the majority-opinion has not faced and which should be considered in the proposed abolition of a doctrine so fundamental to the common law.

I would hold that the threshold question as to the abolition of the doctrine of inter-spousal immunity should be answered in the negative. The process used by the majority herein and in numerous other cases. see Klein v. Klein, supra, and Frehee v. Frehee, supra, utilizes an age-old technique; the destruction of strawmen. We are told that the only support for the doctrine of interspousal immunity is, 1. the fear of collusion and fraud between spouses to mulct insurance companies; 2. perpetuation of domestic tranquility. Professor Prosser, various other courts and the majority herein then set forth to destroy the two strawmen and conclude that since those are the only reasons for the perpetuation of the doctrine it should be abolished. I suggest such reasoning is fallacious in the extreme and furnishes no answer to the threshold question of whether four hundred years of doctrine of the unitary aspect of husband and wife should be abolished. I suggest also that the majority must in the future answer the question faced by other courts who have abolished interspousal immunity and who have subsequently and logically been required to abolish the immunity between parent and child for negligent torts. See Hume, Intra-Familial Immunity to Suit, 17 Federation Ins. Counsel Quarterly 45 (1966); Hebel v Hebel, 435 P.2d 8 (Alaska 1967); 41 A.L.R.3d 904.

Having disposed of the threshold question of the abolition of the doctrine of interspousal immunity in a most cavalier fashion the majority opinion then illogically leaps to a consideration of the recovery, and if it is to be characterized in terms of separate property. The majority omits any discussion as to what property is to be liable for the torts of the guilty spouse. The majority decision does not answer such questions as:

If the tortious act was committed in the furtherance of the community, would the community property be liable to pay the money judgment to the wife as her separate property? Perhaps the majority opinion is to be taken as ruling that damages for the tortious acts of a spouse could be recovered only from the separate property of the tortfeaser spouse. What of the dilemma which is posed if the spouse has no separate property? If the community property is to be liable to pay the sum of money to a wife as her separate property it would appear that the mathematics of computing a fair recovery are insurmountable. If the community property is used to pay the one-half loss of future earnings of the wife to her as her separate property then she is actually paying one-half of her own damages by virtue of her one-half ownership of community property. As a result the wife has actually only gained one-fourth of the amount of her general damages for loss of future earnings. I believe it obvious that such computations soon reach the point of absurdity.

As a result of the above discussion one might be tempted to believe that the only reason for the abrogation of the doctrine of interspousal immunity is to allow one spouse to recover against an insurance carrier.

As stated by Brennan, J., in Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971)

“Interspousal tort litigation can hardly be called adversary. It is more like a joint venture to collect from the insurance company.

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“Married tempers often fly. So do pots, pans, fists and worse. Apologies and caresses will no longer be the only available balm. In Michigan at least, we can well envision the family.donnybrook ending with the husband calling his insurance agent, the wife calling her lawyer and both entertaining visions of better days ahead.”

The common law for hundreds of years has held to the doctrine that a husband and wife are a unit for certain purposes in the law. From that concept sprang the concept of interspousal immunity for tortious conduct. Other doctrines that sprang from the same unitary concept are equally important. They may not testify against each other. Under most circumstances they have a duty of support each toward the other, and even upon a divorce a part of those duties may be continued. In this state neither can alienate the real property of the community without the consent and the execution of the other. Although examples are endless, these few may suffice.

Many years ago Harlan Fisk Stone, The Common Law in the United States, SO Harvard L.Rev. 4, commented:

“Law performs its function adequately only when it is suited to the way of life of a people. With social change comes the imperative demand that law shall satisfy the needs which change has created, and so the problem, above all others, of jurisprudence in the modern world is the reconciliation of the demands, paradoxical and to some extent conflicting, that the law shall at once have continuity with the past and adaptability to the present and the future.

“We are coming to realize more completely that law is not an end, but a means to an end — the adequate control and protection of those interests, social and economic, which are the special concern of government and hence of law; that that end is to be attained through the reasonable accommodation of law to changing economic and social needs, weighing them against the need of continuity of our legal system and the earlier experience out of which its precedents have grown; that within the limits lying between the command of statutes on the one hand and the restraints of precedents and doctrine, by common consent regarded as binding, on the other, the judge has liberty of choice of the rule which he applies and that his choice will rightly depend upon the relative weights of the social and economic advantages which will finally turn the scales of judgment in favor of one rule rather than another.”

So in the case at bar, I believe this Court is faced with the problem of determining whether the doctrine of interspousal immunity serves the need of “continuity of our legal system” or whether it no longer serves the needs of our society, admittedly vastly changed from that in existence at the time of the adoption of the doctrine.

Admittedly the relationship between husband and wife has changed and continues to undergo massive change. We are told that one out of every three marriages ends in divorce. We can only speculate of the percentage of the remainder which exist in name only. The family unit, however, is still generally considered to be the key to the survival of our society and civilization. While I do not accuse the majority of an intent to destroy the family, I believe it obvious that the decision of the majority today contributes nothing to the need for the stability of the family relationship in today’s society.

I suggest that the decision of the majority today will have results and consequences which will reach far beyond those envisioned in the humorous comments of Professor Prosser regarding interspousal harmony and the bland assumption that the doctrine of interspousal immunity serves and protects only insurance carriers.