Klein v. Klein , 26 Cal. Rptr. 102 ( 1962 )

SCHAUER, J., Dissenting.

While I concur in the adoption of the rule of interspousal liability for intentional torts to the person announced in Self v. Self, ante, p. 683 [26 Cal.Rptr. 97, 376 P.2d 65], I believe it ill-advised for this court to undertake to extend that rule to interspousal liability for simple negligence. Inherent in every assertion of the latter liability are opportunities and incentives for—and hence probabilities of—collusion and fraud far more real than those involved in claims based on intentional torts. For this among other reasons, if the proposed extension is to become law it should be so declared by the Legislature after proper study of the problem and formulation of such specific rules as may be found necessary to protect all parties. (Cf. Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457] ; id. at p. 221 (dissenting opinion by Schauer, J.); Corning Hospital Dist. v. Superior Court (1962) 57 Cal.2d 488 [20 Cal.Rptr. 621, 370 P.2d 325]; Civ. Code, § 22.3.)

Time and again in recent years the appellate courts of our sister jurisdictions have so held in personal injury cases grounded on negligence. Thus, rejecting a contention that the common-law rule of interspousal immunity should be judicially abrogated in a negligence action, the Supreme Court of Missouri reasoned that “Obviously, the general assembly is not only better equipped than this court to investigate and develop the facts pertinent to a determination of this phase of public policy but also has greater authority to deal with the particular problem and at the same time the related ones. The problem with which we are concerned is not an isolated one. It touches on many subjects with which the Legislature has dealt, such as the privileged communications of married persons, a husband’s liability for his wife’s support which includes medical expenses, and the children’s rights of inheritance from their parents. Also, the insurance business is affected with a public interest, is subject to the control of the state’s police power and has been extensively regulated.” (Brawner v. Brawner (1959, Mo.) 327 S.W.2d 808, 813 [6].) Among the many recent cases in accord with this view are Ennis v. Donovan (1960) 222 Md. 536 [161 A.2d 698, 701-702 [3] ] ; Koenigs v. Travis (1956) 246 Minn. 466 [75 N.W.2d 478, 487 [13]]; Koplik v. C.P. Trucking Corp. (1958) 27 N.J. 1 [141 A.2d 34, 41 [4] ]; Ensminger v. Ensminger (1955) 222 Miss. 799 [77 So.2d 308, 310 [3] ] ; Corren v. Corren (1950, Fla.) 47 So.2d 774, 776; Wright v. Wright (1952) 85 Ga. App. 721 [70 S.E.2d 152, 154 [1] ] ; Benevides v. Kelly (1960) -R.I.- [157 A.2d 821, 824 [4, 5]] ; cf. Shumway v. Nelson (1961) 259 Minn. 319 [107 N.W.2d 531, 532 [1]]. Indeed, judicial interference in this sensitive area of substantive law may well have the opposite effect: e.g., within a few months after the Supreme Court of Illinois judicially abrogated in that state the common-law rule of interspousal immunity in an action based on “wilful and wanton” conduct resulting in an automobile accident (Brandt v. Keller (1953) 413 Ill. 503 [109 N.E.2d 729]) the Illinois Legislature reinstated the immunity rule as to all personal torts between spouses, enacting that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Ill. Rev. Stats. 1953, ch. 68, § 1; see Hindman v. Holmes (1955) 4 Ill.App.2d 279 [124 N.E.2d 344, 345].) Such legislative reversal of judicial declarations of “public policy” has not been unknown in California. In this connection it is to be remembered that the common-law rule in this state is not a mere court-declared rule. To the contrary the rule is of legislative origin. (Civ. Code, § 22.2: “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.”) And as unqualifiedly declared in Lean v. Givens (1905) 146 Cal. 739, 742 [81 P. 128, 106 Am.St.Rep. 79], “The common law is in force in this state except as modified by statute, or the constitution.” As recently as 1961 (Stats. 1961, ch. 1404, p. 3209, § 1) the Legislature in reenacting the doctrine of governmental immunity from tort liability (after it had been set aside by a majority decision of this court in Muskopf v. Corning Hospital Dist. (1961), supra, 55 Cal.2d 211, 213 [1]) expressly reaffirmed that the doctrine “was adopted by statute in this State in 1850 as part of the common law of England. ...” (Italics added.)

When the Legislature sees fit to change the common-law rule it is able—as we are not—to view the problem in all its ramifications and to provide the necessary safeguards against abuses of the law. In New York, for example, it was settled case law prior to 1937 that neither spouse could bring an action against the other for negligent personal injury. (See e.g., Mertz v. Mertz (1936) 271 N.Y. 466, 469 [3 N.E.2d 597], and eases there cited.) In 1937, however, the Legislature acted, and promulgated a complete statutory scheme regulating the problem. Chapter 669 of the Laws of 1937 contained four pertinent sections. The first section amended the Domestic Relations Law, expressly granting to each spouse a right of action against the other for negligent or intentional injury to the person. The second section added a provision to the Insurance Law, declaring that no policy theretofore or thereafter issued “shall be deemed to insure against any liability of an insured for injuries to his or her spouse . . . unless express provision for such insurance is included in the policy.” The third and fourth sections amended the Vehicle and Traffic law by providing that insurance policies issued to motor vehicle owners were not required to insure against claims for personal injury by the owner’s spouse. As a New York appellate court observed shortly afterwards, “These simultaneous enactments disclose a considered legislative intent to create a right of action theretofore denied, and at the same time to protect insurance carriers against loss through collusive actions between husband and wife. In such actions there is a manifest opportunity for fraud” (Fuchs v. London & Lancashire Indemnity Co. (1940) 258 App.Div. 603 [17 N.Y.S.2d 338, 340 [3, 4]]). This is sound and realistic lawmaking. In California too, respect for the rights of all our citizens demands no less. Certainly the majority’s amendment to the law should not be given retroactive effect in respect to insurance contracts.

The majority lay great emphasis on certain language in my concurring and dissenting opinion in Spellens v. Spellens (1957) 49 Cal.2d 210, 234 [317 P.2d 613]. I am gratified that the majority have now (in Self v. Self, ante, p. 683 [26 Cal.Rptr. 97, 376 P.2d 65]) accepted the proposition which I advanced in Spellens as preferably applicable to malicious torts. But as recognized in Self (at pp. 688-689) the Spellens ease did not deal with the question now before us in Klein. Rather, Spellens turned on the resolution of various problems of divorce law and the law of estoppel, and the thrust of my opinion was directed to those issues. To the extent that the Spellens case is at all relevant, it must be remembered that the wrong to which I proposed to “refuse to apply” the inter-spousal immunity rule was not simple negligence but an intentional tort, i.e., malicious abuse of process resulting in mental suffering.

The distinction in this regard between intentional torts and negligent torts is a valid one, grounded on hard facts. Accident liability policies do not ordinarily insure against intentionally inflicted injuries, and hence the incentives for trumped up actions against insurers based on intentional tort are few or nonexistent. But negligent injuries offer a fertile field for conjugal collusion and fraud. The wife—to take as example the suspiciously frequent case—is shaken up in an automobile accident caused by the husband’s inattentive driving. Perhaps, on reflection, she discovers symptoms of a whiplash injury. An action for damages is brought nominally against the husband who, being insured, stands only to gain by losing and hence willingly plays the role of defendant. The resultant judgment for the “plaintiff” wife is collected from the “defendant” husband’s insurer, and provides a tidy sum which both spouses may then enjoy as the fruits of conjugal cooperation. Or, conversely, the husband sues the wife for injuries allegedly caused when he slipped on a highly polished kitchen floor, tripped over the wife’s mop, or suffered a similar household mishap. The variations on this theme are limited only by the ingenuity of the parties and the patience of the insurance company.

The majority find it to be “of some significance that, so far as we have been able to ascertain, none of the 18 states that have adopted the more modern view have drawn such a distinction.” (Ante, p. 694.) A glance at the recent case law of neighboring Oregon, however, discloses at least one jurisdiction where this same distinction has been clearly drawn. In Apitz v. Dames (1955) 205 Ore. 242 [287 P.2d 585, 598 [5]], the Supreme Court of Oregon unanimously abrogated the common-law rule of interspousal immunity insofar as it precluded actions between spouses based on an intentional personal tort. But in the companion case of Smith v. Smith (1955) 205 Ore. 286 [287 P.2d 572, 585 [6]], decided the same day, the Oregon court held—again unanimously— that if there is to be any change in the common-law rule of interspousal immunity in actions based on negligent personal torts, it must come from the Legislature.

The majority here opine that “the logical and legal reasons” for which we abandoned in Self v. Self, ante, p. 683 [26 Cal.Rptr. 97, 376 P.2d 65], the interspousal immunity rule as to intentional torts “apply with equal force to negligent torts.” (Ante, p. 694.) In its well-reasoned opinion in Smith v. Smith (1955) supra, the Supreme Court of Oregon concludes on the contrary that “In the case of intentional wrongs, considerations of great potency are involved which are not present in cases involving negligence only.” (Id. at p. 578 [5] of 287 P.2d.) I shall not prolong this opinion by repeating the persuasive analysis by which the Oregon court demonstrates the inapplicability, in interspousal negligence actions, of the arguments here invoked by the majority (see, e.g., id. at pp. 580-583). It is enough to quote that passage of the opinion which specifically stresses the probabilities of fraud inherent in such actions (id. at p. 583): “The minority rulings brush aside the risk of collusion by the husband and wife by the simple assertion that the courts know how to deal with collusive suits. But it is obvious that the risk of collusive action increases when the parties plaintiff and defendant are in confidential relationship. The risk of financial loss is ordinarily inducement enough to encourage a sturdy defense. Remove from a defendant the risk of loss and substitute the covert hope of profit and a situation arises which should give us pause. . . . We revere the jury system as the bulwark of individual liberty, but we are also realists, and we know that juries are, as a Kentucky mountaineer once said— ‘tolerable generous with other people’s money,’ especially when the aroma of insurance permeates the courtroom. It would seem that if husband and wife want protection by insurance, accident policies are available. We do see a substantial risk of miscarriage of justice when, in the peace and harmony of conjugal bliss, a wife prepares a damage suit against her husband over the solitary protest of an insurance company.”

In California, where negligence actions are no less common, juries no less human, and awards no less generous, this timely warning should be all the more heeded.

For the reasons stated I would affirm the judgment.

Me Comb, J., concurred.