Stanfield v. Stanfield , 187 Ga. App. 722 ( 1988 )

Deen, Presiding Judge.

Mary Ann Stanfield brought suit against Douglas Stanfield and Ruth Bowles seeking damages for injuries she incurred while a passenger in an automobile driven by Douglas Stanfield. The trial court granted Douglas Stanfield’s motion for summary judgment and this appeal ensued.

The trial court granted the appellee’s motion for summary judgment on the basis of the applicability of the interspousal tort immunity doctrine to the parties. The record reveals that on January 20, 1985, the date of the accident in question, the appellant and the appellee were wife and husband. At the time of filing the instant suit, the appellant was divorced from the appellee. In her affidavit filed in response to appellee’s motion for summary judgment, the appellant stated “[i]n April of 1985, I filed a divorce action against [appellee]. He had physically and mentally abused me and our children for quite some time. These abuses commenced long before the accident on January 20, 1985.” She also averred that “[t]he current lawsuit, or the possibility of a lawsuit, did not in any way contribute to the dissolution of my marriage. . . . I am in no way conspiring or colluding with my former husband in any way[,] shape or form. . . .” Held:

In Wallach v. Wallach, 94 Ga. App. 576, 578 (95 SE2d 750) (1956), where the parties were married at the time of the automobile collision but divorced before the subsequent lawsuit was filed, this court followed the general rule that “ ‘after divorce one of the former spouses cannot maintain an action against the other for a personal tort committed during coverture. . . .’’’In granting summary judgment for the defendant former husband in the instant case, the trial court properly relied upon Wallach, since it has never been overruled and has, in fact, been cited with approval by the Supreme Court. See Robeson v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) (1981). The appellant contends that because the status of the parties’ marriage at the time of the accident was so acrimonious, the traditional policy reasons for applying interspousal tort immunity were absent. However, only in extreme factual situations will the appellate courts deviate from a strict application of the general rule regarding interspousal immunity. In Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985), for example, this court found a jury question where the husband mortally shot his wife and then committed suicide. In Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984), at the time of the injury the husband and wife had been separated for ten years, and the husband was living with another woman. As noted in Yates v. Lowe, 179 Ga. App. 888, 889 (348 SE2d 113) (1986), these cases “may be distinguished on their facts because each involves a lengthy separation or act of violence which clearly evidences the termination of marital harmony to a degree sufficient to deter any reasonable apprehension of collusion between the spouses or their estates.” The instant case quite clearly is not in that category of cases, and the trial court correctly granted summary judgment for the appellee.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley, Pope, Beasley and Benham, JJ., concur. Pope, J., also concurs specially. Sognier, J., dissents.