Wright v. Daniels , 1969 Iowa Sup. LEXIS 723 ( 1969 )

SNELL, Justice.

Plaintiff, administratrix of the estate of Irma Daniels, deceased, appealed from the trial court’s ruling sustaining defendant’s motion to dismiss.

There is no factual dispute and the case is before us on an agreed record from which the following appears.

Irma Daniels, now deceased, and Melvin Daniels, defendant herein, were wife and husband.

Defendant inflicted grievous injuries on his wife resulting in her death. Defendant was tried for murder and convicted of manslaughter.

Plaintiff, as administratrix of the estate of Irma Daniels, sought recovery for her untimely death from her surviving husband.

Plaintiff’s petition is in two separately numbered divisions. In Division I plaintiff alleged defendant’s negligence was the proximate cause of decedent’s untimely death.

Division II alleged defendant’s assault was willful and malicious. Actual and exemplary damages were sought.

Defendant’s motion to dismiss urged that under the doctrine of interspousal immunity there was no right or cause of action against defendant for willful or negligent torts committed during coverture.

On appeal plaintiff argues that statutory changes abrogate the rule in Iowa.

Whether or not the doctrine of inter-spousal immunity has been changed by statute in Iowa is the only issue before us.

I. Interspousal immunity in civil cases is of early common law origin. For willful injuries inflicted upon a spouse the guilty party might be subjected to the penalties prescribed by criminal law but was not subject to suit for damages.

Under the common law prior to Lord Campbell’s Act causes of action in tort died with the injured party. Lord Campbell’s Act created a new cause of action in favor of those who suffered financial loss resulting from the wrongful death.

Iowa was one of the early states to abolish the common law rule that civil liability of a tortfeasor died with the death of the injured party, but ours are survival statutes. See sections 611.20 and 611.22, Code of Iowa. These statutes do not create new causes of action. They preserve rights. In the case before us if no cause of action existed in favor of the deceased wife there was nothing preserved for her administra-trix.

The right of civil remedy is not merged in a public offense. Section 611.21, Code of Iowa.

The developments in the law as to measure of damage and the right to recover for loss of consortium are not involved in the problem before us. The issue before us is the existence of a cause of action and not the measure of damage. Neither are the various married woman’s statutes removing the common law disabilities of married women. Interspousal immunity applies to married status and does not depend on sex.

The issue here is confined to the statutory right of a husband or wife or a decedent’s fiduciary, for the benefit of the decedent’s estate, to maintain an action for tortious injuries inflicted during coverture. In Iowa as well as in many jurisdictions there has been no right to maintain such an action. None of the changes or developments mentioned invades the common law rule of interspousal immunity.

In the case before us plaintiff’s petition alleged both negligence and willful injury. The trial court dismissed both claims. Logically, there would be far more reason to recognize a claim based on willful and malicious conduct than one based on mere negligence. If there was no cause of action under Division II of plaintiff’s petition there could be no cause of action under Division I. We will accordingly direct our primary attention to cases where an intentional injury or malice was necessarily involved.

II. In Musselman v. Galligher, 32 Iowa 383, 384 (decided in 1871), after discussing common law disabilities this appears:

“ * * * by our statutes the whole policy of the common law in respect to these disabilities of married women has been changed.”

On page 387 it is held that a married woman’s right to sue for injuries is a property right.

In Peters v. Peters, 42 Iowa 182 (decided in 1875) a wife claimed damages from her husband, from whom she was separated, for eleven distinct assaults and batteries. On page 183 this appears:

“Whilst it must be admitted that very radical changes have been made in the relation of husband and wife, still it seems to us that these changes do not yet reach the extent of allowing either husband or wife to sue the other for a personal injury committed during coverture.”

It was argued that under the Musselman case, supra, the right to maintain an action necessarily followed recognition of a property right. The court said that “this course of reasoning assumes the very thing to be established.” (loc. cit. 184) The court rejected the argument and held that the wife could not sue her husband for a tort.

III. In Re Estate of Dolmage, 203 Iowa 231, 212 N.W. 553, decided in 1927, was a proceeding in probate for establishment of a claim for damages. The wife was shot and killed by her husband who then shot himself. The wife’s administrator sued the husband’s executor. The sole question before the court was: “May the wife maintain an action against her husband for personal injuries negligently or willfully inflicted upon her by her husband?” The court said that no such action would lie at common law. After analyzing the statutes the court held that an action would not lie thereunder.

IV. In Aldrich v. Tracy, 222 Iowa 84, 269 N.W. 30, decided in 1936, the wife was murdered through accomplices. Her husband was convicted of murder and hanged. The wife’s administrator brought action for damages. After the husband’s execution his executor was substituted as defendant. The court posed the question in these words:

“On the merits of the case itself, one proposition only is presented for our consideration: Did the plaintiff, as administrator of the estate of Mabel B. Tracy, deceased, have the right to maintain an action against her surviving husband, Reginald S. Tracy, because of the wrongful injuries and death inflicted upon Mabel B. Tracy by the defendant, Reginald S. Tracy?” (loc. cit. 86-87, loc. cit. 31 of 269 N.W.)

The court answered the question:

“If either a man or a woman be single, he or she may maintain such action against any other person; but if either a man or woman be married, he or she cannot maintain such an action against his or her wife or husband.” (loc. cit. 91, loc. cit. 33 of 269 N.W.)

In the case before us it is neither claimed nor argued that these pronouncements have ever been overruled or modified in Iowa by judicial pronouncement. Reversal is sought solely on the claim of change by statute.

V. The soundness of the judicial doctrine of interspousal immunity is not argued.

In Newmire v. Maxwell, Iowa, 161 N.W.2d 74, 80, this appears:

“We aré firmly committed to the rule that, * * * we may not reverse on grounds not stated or argued * * * [Citations].”

VI. The argument that interspousal immunity has been abrogated by statute is answered in Flogel v. Flogel, 257 Iowa 547, 133 N.W.2d 907, decided in 1965. In that case a wife sued her husband for damages resulting from his negligent operation of his automobile. Willfulness was not involved. The authorities, statutes and legislative intent were considered. We said:

“As so amended this statute has remained unchanged and is now Code section 613.11 I.C.A. The amendment gives no indication of any legislative intent to abrogate the interspousal immunity rule. If it is to be done we are committed to the proposition the legislature must do so in such clear language as to leave no doubt in the mind of anyone. We find no such expression in our present statutes.” (loc. cit. 555, loc. cit. 912 of 133 N.W.2d)

VII. For a discussion as to the nature of wrongful death actions in Iowa see Cardamon v. Iowa Lutheran Hospital, 256 Iowa 506, 519, 520, 128 N.W.2d 226. We reaffirmed the rule that ours are survival statutes keeping alive a decedent’s right to recover. The nature of our statute is important. See Division IX, infra.

VIII. In Schmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556, 149 N.W.2d 789, we considered what is now a part of section 613.15, Code of 1966. We said that the amendment by the 61st General Assembly was to equalize the measure of damage for wrongful injury or death of a woman and those attendant upon the injury or death of a man. (loc. cit. 793) We also said:

“It remains we are committed to the rule that damages are essentially a part of the remedy.

“In the field of jurisprudence, the term ‘right’ connotes the capacity of asserting a legally enforceable claim.” (loc. cit. 792)

In the case before us if plaintiff’s decedent had no legally enforceable claim, plaintiff’s action for damages cannot be maintained. Decedent’s estate was the party plaintiff and nothing survived.

IX. In 22 Am.Jur.2d, Death § 80, this appears:

“Where the statutes removing the disabilities of married women do not give the wife a right to sue the husband for a personal tort, it has been held that an action cannot be maintained against him for causing her death by wrongful act. * * *

“It has been said that the disability of the wife to sue is personal to her and does not inhere in the tort itself, that an assault on her is wrongful even though she is under a personal disability to sue, and that the reasons for the rule of immunity between husband and wife do not exist where the husband kills the wife and thus destroys the marital relationship. Accordingly, it has been held that a daughter could recover against her stepfather for damages for killing her mother. It may be noted that this decision was made in a state in which the statutory beneficiary’s cause of action is independent of that of the decedent. Also, with respect to the contention that because a wife could not maintain a tort action against her husband, a husband was not liable under the wrongful death statute for killing his wife, it has been held that at the time of the accrual of the new cause of action arising under the wrongful death statute, the relation of husband and wife had been terminated by the killing, and that therefore the rule concerning torts between husband and wife did not apply.”

Under our survival statutes this argument would not apply.

An annotation in 28 A.L.R.2d 662 deals with the question whether an action may be maintained against a spouse or his estate for causing the death of the other spouse. On page 663 this appears:

“The split of the courts on the allowance of recovery against a spouse or his estate for causing the death of the other spouse appears to be grounded on the theory adopted in the particular jurisdiction as to the nature of an action brought under the wrongful death act, along with the view obtaining therein of the immunity of one spouse from suit by the other. Thus, where the right of action under the statute is considered to be merely derived from the person of the deceased, the statute being in the nature of a ‘survival statute,’ and there is a disability extant between the deceased and the tortfeasor, no recovery is allowed. If there is no disability as to suits between these parties, then recovery may be had even under this theory.”

With interspousal immunity the law of Iowa nothing survived in favor of plaintiff or decedent’s estate as such herein under our survival statutes.

X.Plaintiff, appellant, seeks some comfort from Kuhn v. Kuhn, 125 Iowa 449, 101 N.W. 151. That case was decided in 1904 under section 3386, Code of 1897. Appellant argues that under the Kuhn case the defendant herein, Melvin Daniels, would be allowed his distributive share in his wife’s estate. The statute under which the Kuhn case was decided was amended by the 29th General Assembly. The amendment is now a part of section 633.535, Code of 1966. This statute provides:

“Feloniously causing death. No person who feloniously takes or causes or procures another to take the life of another shall inherit from such person, or receive any interest in the estate of the decedent as surviving spouse, or take by devise or legacy from him, any portion of his estate.” (Emphasis added to indicate amendment)

Appellant’s conclusion drawn from the Kuhn case is not the law under our present statute.

XI. As said in the Flogel case, Division VI supra, we find nothing in our statutes indicating legislative disapproval of interspousal immunity as the law of our State.

The case is

Affirmed.

GARFIELD, C. J., and LARSON and RAWLINGS, JJ., concur. MOORE, STUART, and LeGRAND, JJ., concur in the result. BECKER and MASON, JJ., dissent.