*1 Buterbaugh (et Appellant). al., *2 1964. March Argued 1965. refused March 23, reargument him Gent, John G. Gurtze, Gent & McCullough, appellant. John M. with him Wolford, Isaac J. Bilin, Dunn appel- <& Wolford, Silin, Eckert & Burke, lees. Opinion by Mr. Justice October 1964: Jones, On approximately December at 11:20 31, 1960,
p.m., Nancy Daly passenger was a in a motor vehicle operated being owned by and then Don- her husband, ald (Daly), northerly Liberty in a direction on through Liberty Street, Erie, street. inter- Street is sected way Eleventh a one Street, street for vehicu- proceeding lar traffic easterly in an at direction, and, stop sign requires intersection, is located which Eleventh stop Street vehicular traffic to enter- before ing Liberty Daly’s Street. As motor entered vehicle intersection, was struck a motor vehicle, *3 operated by Buterbaugh owned and then Edward (Buterbaugh), traveling easterly which had been in an direction on Eleventh Street. As a col- result of this Nancy Daly Daly personal both lision, and sustained injuries. damages
To recover their several in this sustained Nancy Daly Daly joint and accident, instituted tres- pass in actions the Court of Common Erie Pleas of County against Buterbaugh Buterbaugh and then se- joined Daly cured a of severance the actions and anas Nancy Daly-Buterbaugh additional defendant in the joined, action.1 After issue the matter came on for jury jury trial before a court and and the returned the following verdict: “We ... do find for the Plaintiff Daly] compensation [Nancy pain and recommend accident, Campion Campion, At time of Sue and Dale passengers Daly’s husband, were motor vehicle and Dale Cam Campions’ against pion Daly Daly’s was killed. Neither actions nor Buterbaugh against appeal. Nancy are involved in action this Buterbaugh Daly’s against Daly action wherein addi became an original were other there tional defendant and additional defend appeal. no moment fact is of on but such this ants compensation for of the amount $16,000.00 permanent changes for an amount of $30,000.00.”2 Daly judgment n.o.v.; moved for trial and new Buterbaugh post-trial judgment filed no motions and Daly against Nancy on the Buter Daly’s verdict favor of baugh During pendency was entered.3 Keystone post-trial upon petition motions, carrier), Company (Buterbaugh’s Insurance insurance Keystone the court inter should directed, alia, pay payment, Nancy be such $7,902 and, obligation discharged policy exonerated from its Nancy payment Daly’s judgment Buter for baugh provided expressly but that court order payment exoneration would not “constitute an such personal discharge obligation [Buter judgment” arising [Nancy Daly] baugh] out of the judgment payment such satisfied. and said was not post-trial Daly’s were motions thereafter, Sometime judg prothonotary directed to enter dismissed judgment on Au entered ment on verdict. Nancy gust “. . . favor of reads: 28, 1963, Daly, Daly against additional Donald defendant, plus int. date from of the verdict $16,000.00 the amount .” From 1962. . . October thereof appeal taken. appeal:4 upon (1) questions are raised Three trespass entry action in this whether Nancy Daly, her husband, the wife, favor of *4 (2) court Daly, whether the erred valid? below was origi [Buterbaugh] directing judgment in favor of “in [Daly], against the additional defend defendant, nal paid [Buterbaugh] had than less his when ant 2 against parties below treat the court this verdict as and Daly. Buterbaugh it shall treat as such. We and appeal. 3 in judgment involved is not This Daly’s brief,- 4 questions raised attached other Two —which court, argument. at oral abandoned charge of —were
527 pro rata of share the verdict and entered judgment him and no claim contribution for relief for requested was new (3) [Buterbaugh]?”5 whether trial should be granted of because certain allegedly improper remarks Nancy jury counsel his Daly’s summation?
At the
counsel
that
outset, Nancy
contends
Daly’s
the first
that
question,
question
attacks
i.e.,
of
validity
improp-
Nancy Daly-Daly judgment,
erly before this Court
it
raised in the
because was not
It
court below.
clear
which could
questions
that
need
have been but
not
in the
below
were
raised
court
Pa.
not be
on
Clark v.
408
appeal:
Rutecki,
considered
counsel
during coverture, personal recover for damages juries from lier him husband for committed by a tort of during coverture. Our validity into the inquiry examination Daly’s position must be initiated by There and pleadings Nancy Daly Buterbaugh. is no complaint Daly averment of Nancy had been Daly negligent anywise nor that was Daly of this liable to her for the effect damages; therefore, she is to to her for which damages award no for she did made claim and which negligence was Buterbaugh’s complaint Daly aver. averred lia- solely reason he became negligent by and, thereof, “was jointly ble to Nancy Daly6 alternative, or, defendant, liable the original severally . . .” [Buterbaugh], hereinafter exception of one decision
With the
wife
that a
has
held
consistently
our case law
noted,
action
trespass
cannot maintain a
coverture
during
personal
for
damages
to recover
her husband
407
v. Little,
husband: Meisel
injuries
caused
Peoples
v.
180 A. 2d
Johnson
772;
Pa.
549,
546, 548,
118,
Trust
Fisher v. in- identical to the a situation almost presented In and husband insti- Fisher, a wife situation. stant to recover third pa,rty action a trespass against a tuted hus- a the from collision between resulting damages a operated then by him, motor vehicle, band’s operated by and then the third party by truck owned requested third party employee. party’s third the hus- joinder the actions and severance on latter defendant, additional band alterna- solely or, was theory The court below for the accident. liable jointly tive, of the actions severance requested both granted joinder of the husband as an defendant.7 additional jury At against trial, returned a verdict party third appeal, and the husband. On sole question joinder propriety at issue was the ruling the husband as an additional defendant. joinder Judge proper, that such the late President stated: “The action of not the court below was Keller equivalent permitting by an action the wife party her husband. Her defendant husband is not a judg- to the action as far as she is concerned. The ment as restricted him, Court,8 nor enforceable benefit. does enure to her her, simply judgment enuring It is to the benefit *7 pay original pays required if defendant he judgment; requires the wife’s and it then pay original only to the defendant one-half joint damages paid by the latter a as result (pp. 484). negligence of both.” The Court held the 488, joinder of the husband additional defendant was as proper judgment against party and the both the third subject, be however, and the husband should affirmed provision by that “no execution be issued against plaintiff on the [the wife] entered that [the defendant ‘so husband], the additional only original may recover from the defendant, wife original party], party], [third and that the third [the only may [the obtain contribution from defendant, 487). application By (p. Fisher to husband]’.” Nancy Daly only could recover on her at bar, the case Buterbaugh Buterbaugh against could 7 duty doing, stated that the court below was its “to In so any parties preserved rights are and to control of the see any judgments might rendered, issued on be so execution only defendant, original from the recover wife] [the party] may only party], [third con and that obtain third [the (p. 480). husband].” [the from tribution footnote 7. See only by way against recover of contribution but, in no Nancy Daly event, could on the recover against Daly.
In Kiser v. 389 Pa. Schlosser, A. 2d 344, per wife damages instituted an action to recover injuries against sonal party, turn third who in joined the husband additional defendant; jury, inter wife alia, returned verdict favor of the against (p. 133) “The husband alone. : We said recognized although court en banc husband] [the properly joined purposes as a defendant by contribution [the the action his party], directly third he [the could husband] not be liable to his wife. The court nevertheless, concluded, prejudicial that the error was not [husband to the striking and could wife], be corrected verdict [the favor of her husband from wife] issue, agree disposition record. We with this [citing Koontz Fisher].” supra, Meisel 407 Pa. Janet Little, Meisel, op- passenger
then was a in a motor unmarried, vehicle by Wayne erated in- Little when Little’s vehicle was operated volved in an accident with another vehicle party. a third Ten months later Janet mar- Meisel ried Little sometime Little and, thereafter, she sued original alleging negligence as an defendant that his *8 judg- was the cause of the accident. Little moved for pleadings grant- ment on the which the court appeal, ed. On this Court stated the issue: a wife against personal maintain an action her husband for injuries by by a tort committed caused husband the affirming prior marriage? In the the to en- by court we held that below, tered the the rule a personal injuries an action not maintain wife could against by for a tort husband caused her latter the “statutory and decisional” and that rule was such strictly always adhered to in Common- “has been n wealth”. While the in actual Meisel decisional point is that a direct trespass action personal injuries not maintainable by during a her against wife coverture even the though the husband’s tort preceded its in a marriage, language trespass action proscribing by a wife vis-a-vis husband much broader. 2d Ondovchik v. 411 Pa. 192 A. Ondovchik, Carol passenger then a Dallas, unmarried, ivas in motor operated vehicle Albert when Ondovehih in motor was involved an other accident with two other vehicles. Carol of the operators Dallas sued the motor upon two vehicles and brought Ondovehih was the record an additional defendant. Sometime as Carol married Ondovehih. When thereafter, Dallas tried against case was returned verdict jury ver alone. court Ondovehih The below set aside defendant plaintiff dict “because the and additional wife”, re in Court, husband and This (p. 645). were in below, n.o.v. entered the court versing in manner: following (a) Meisel in the distinguished and during begun marriage suit was Meisel, after begun prior suit whereas Ondovchik was coverture, di suit was instituted to marriage; (b) Meisel, defendant an original the husband as against rectly against entered the suit was Ondovchik whereas Ondovchik the record upon brought who parties third the wife Ondovchik, defendant; (c) additional or vice where versa, the husband did not testify the wife proceeded trial, the suit Meisel, had inas hus required testify against have been would real nub of Ondovchik versa. vice band and Court: “It was language be found upon imposed liability the jury verdict 646). (Em (p. defendant husband]” additional [the of Ondovchik was The rationale supplied) phasis suit action” equivalent “not the the verdict bar com- husband so as to *9 meneement of com- the suit that no suit had been itself, by against menced wife the husband within meaning as Act June P. L. 344, §3, 8, 1893, our law amended, P.S. and that neither case §111, prohibited proscribed nor statutes or dis- a verdict, tinguished by against from a husband. a wife suit, Simplified, Ondovchik under holds while a wife that, the circumstances cannot her can sue she husband, damages recover from him. presents
Ondovchik real to an under- difficulties standing important prob- of this Court’s view on this problem relying on lem, which the bench and bar, prior justification, the statutes and have case law, assumed to be settled. Until Ondovchik, (a) law this that Commonwealth a wife could directly against (b) institute a suit a husband and joined while a husband could be de- as an additional against fendant in a suit instituted third party against parties, only or the wife could recover parties party against the third or but not the husband, although parties party the third recover could against by way the husband of contribution. An ex- clearly amination of Fisher and indi- Koontz, Kiser Superior our cates Court and the Court have precludes recognized any recovery that the tort law against a wife a husband under the circumstances. repeat To which we said Koontz: “Plaintiff recovery [the has had and could have no wife] although joined her the latter husband, as addi- (p. 494). (Emphasis supplied). tional defendant”. permitted a wife was Ondovchik, recover though even Koontz and Fisher were and, recognize this Court failed to Ondovchik, cited repudiated the Ondovchik rationale Fisher Koontz, and Kiser. question important our
On this Court must take a position that the bench so and the bar consistent *10 lacking our know views now a certainty certainty, that because of To implications. Ondovchik and its made. a re-examination of must be end, Ondovchik law we stated : “At common Meisel, (p. 548) in- neither a the other husband nor wife could sue their due to juries during torts committed before that premise based marriage. upon legal This was the See, entity. a husband and are one one person, now This rule, Prosser on 2d Ed. 670 (1955). Torts, is still upon public based social reasons policy, in the in a of great majority jurisdictions followed States, has rule The same [citing United authorities]. Commonwealth. adhered to strictly been always statutory it here is Pennsylvania, However, P. L. 344, and decisional. The Act of June 8, 1893, P. L. as amended the Act of March 27, 1913, §3, ac- prohibits such an 48 P.S. §1, specifically 14, §111, repeatedly tion. . . . this Court has said Moreover, law of common long period years over a the been spouses between has not prohibition litigation [citing supra, the Acts 1893 or abrogated by upon It is the rule is based argued cases]. the fiction which has been antiquated dissipated by of the Married Women’s Acts passage beginning legislature 1848. This overlooks the fact has said as late as the specific language year clear neither a nor a wife sue the husband such a of action.” upon coverture cause during other Common- that under the law clear It is crystal an action for personal such Ondovchik, until wealth, maintained during not be coverture. could injuries between Meisel and Ondovchik are The distinctions to justify application nature as of two not of such whether rules. husband’s tort oc- First, different during to or coverture should be of no prior curred on the family impact relationship moment; which denies public policy right same maintain an occurring during action a tort cover applies equally ture right to tlie denial of main tbe prior tain occurring marriage. an action for a tort recognition right joinder Second, an addi tional defendant in an action third a wife party only purpose right protecting for the party against to contribution of the third any right and does not create in the wife as up impact litigation her husband. Third, relationship on the of a our wife and husband which public policy simply proscribe, case law *11 testify fact that a wife have to a Lastly, in and On vice versa. distinction drawn the dovchik “end re between the so-called verdict—the inception litigation of the sult” of the suit—the —and litigation difference. distinction without —is public policy tort Our have forbidden case law and personal litigation injuries between husband marriage potential danger to the of the because relationship litigation; in inherent whether such spouse against litigation by the one is instituted recovery litigation one in a other results or whether no moment because of the other should be relationship impact upon marriage injurious present reached result The actual in both instances. complete results with the variance at Ondovchik is either Koontz, and Kiser; Fisher in Koontz, reached or Ondovchik, overruled should be and Kiser Fisher rejected. recently though must be determined, so even Fisher Koontz, co-exist cannot Ondovchik Kiser. Common this case law of the examination
Our in our legislative manifest intent so and the wealth that Ondovchik conclusion to the leads us statutes longer followed rejected no doctrine and its be should Superior Court and the Court and that respectively, should Kiser, Fisher Koontz, said be the least until law, such legislature time as the —at determines otherwise. With the of rejection possi Ondovchik, only — the prop
ble upon which the entered in the lower judgment court can be entered supported , — favor of Nancy Daly against must be reversed. Daly
With the rejection insofar Nancy Daly we still have before us concerned, attack upon the entered validity against Daly insofar as con Buterbaugh’s are rights cerned. In considering phase litigation of the it must be in mind kept Buter joining that, Daly, claimed li baugh or only Daly was solely jointly able and made no claim toas over or contribu liability tion. of our hus view determination that Daly, can not be liable to band, solely Nancy Daly, joinder as additional defendant could not have Daly on A. been sustained alone: Shaull v. S. ground York A. Beck New Shoe 369 Pa. Co., Inc., 112, 116, have 2d Buterbaugh’s joinder 698. could Daly only on the over ground been sustained was liable Buter liable jointly with, Buterbaugh so to, could establish his to contribution right on baugh examination Our part Daly. complaint *12 additional joined was as an Buterbaugh whereby Daly sufficient to establish defendant reveals to contribution if lia Buterbaugh’s right Daly’s joint been as it has Buterbaugh with bility established, v. Mitchell-Fletcher 292 jury: Co., Goldman 231; Among 141 A. Uniform Contribution Pa. 354, of L. (Act P. §2(1) July 19, 1951, Tortfeasors Act, §2083). 12 P.S. §2(1), Contribution Among Act, Tortfeasors The Uniform after its of the recognition §2(1) provides, §2(2), among joint contribution tortfeasors, of right not entitled to a judgment money tortfeasor “joint by payment discharged until he has contribution the common liability paid has pro more than his rata share thereofIn the case at Buter bar, clearly baugh has neither discharged the common nor liability paid more than pro his rata share of the liability, i.e., one-half of the plus verdict §46,000 Bearing interest. in mind that “equity of doctrine keynote [is] of contribution” (Mong 200 Pa. Su Hershberger, perior Ct. 186 A. 2d provisions §2(2) 427), require until that, joint tortfeasor, as a Buterbaugh, has satisfied the he provisions alternative of the act is not entitled to contribution from any Daly. in at- position difficulty, Daly’s however, dis-
tacking is that the record does not has close that Buterbaugh manner whatsoever any from contribu- sought Daly “money judgment tion” money nor that intends to seek such Buterbaugh supra. until complies he with the statute, premature. Under the attack Daly’s circumstances, judgment against Daly seeks a Buterbaugh money If has for contribution and at time Buterbaugh if can complied with the terms Daly statute, not arrived. then attack such action but that time has unnec- of the conclusion we deem view reached, other contention. Daly’s consideration essary entered favor Nancy Daly Judgment reversed. Bell concurs in the result. Mr. Chief Justice Eagen to the remand the record Mr. would Justice dispose pending directions of the court below with motion strike. Mr. Justice Roberts: Opinion
Dissenting “the “majority” agree unable I am entered validity on attack join opinion Only Court in the members three “majority” support result. *13 538
could not have been raised at of the any stage other proceeding” the court below. clearly The record is to the contrary. undisputed It challenge to the judgment was never made or un- suggested even appeal til this perfected. was It only appeal was after this and while was taken, appellant’s was pending, purporting counsel, to act for and ad- additional defendant Donald Daly on behalf of mittedly acting Daly’s carrier, insurance petitioned court below strike the car- execution and attachment.2 stay The insurance pe- rier real did (the appellant here) this pursue not petition and the tition remains in the undisposed of just appellant court as We are below, filed it there. without the benefit consequently opinion by of an trial court on issue now or on the validity raised, entered. It ap- clear that seems pres- either his pellant question raised this too late or appeal premature. ent Court of our volume after volume reports, raised repeatedly questions
has
insisted
not
below will not be
on appeal. E.g.,
court
considered
;
v.
Pa.
196
Bell,
(1964)
413
A. 2d 738
Rimpa
274,
v. Penn Hills School
413 Pa.
196
Dist.,
127,
Teodori
v. Arned
412 Pa.
;
292,
A. 2d 306
Greet
(1964)
Corp.,
Kilian
;
County
A. 2d 343 (1963)
Allegheny
194
;
(1962)
Pa.
Accordingly, prop- appeal assumes so hastily “majority” on the merits. us before erly plaintiff’s prompted, petition a letter from coun counsel which carrier’s stated that satisfac insurance to the sel Daly’s sought be Donald would in tion individually. Donald carrier, surance
589
“ma
language of the
I
from the
must also dissent
3
opinion
v. On
jority”
Ondovchik
which “overrules”
“ma
(1963). The
411 Pa.
Although supra, Meisel v. Little, and Ondov premarital chik involved clearly torts, the cases are not in conflict.4 In fact Ondovchik only harmony but development Meisel, it is a natural underlying from the rationale that case. Meisel in- 3 only Court, three members of the majority, Since less than a support language, language is not decisional. 4 opinion joined (1962) The writer Meisel in the opinion (1963). Ondovchik volved a direct suit her husband by wife claim clear unliquidated in tort. The damages rationale of Meisel that such is expressly an action our precluded statute. Fisher v. Diehl, on “majority” supra, also relies but the on admitted issue in that case was “whether, petition of the hus- original plaintiff’s defendant, band can be joined as an additional defendant action for at personal injuries.” Superior Pa. Ct. *15 40 A. at that Superior 2d 916. The Court held 483, joinder such proper. was It after an exam- observed, Koontz Messer, ination of in su- opinion this Court’s that judgment against the additional defend- pra, any ant not plaintiff- would enure to the benefit of the spouse. not bind us Ibid. that comment does Surely, nor does it control the decision in case. the Koontz did not the issue involve
Moreover,
hus
of a
It
the
decided that
enforceability
judgment.
not
in
from suit
tort
his wife did
immunity
by
band’s
master
extend
and that
master,
husband’s
by
from the husband
indemnity
could
seek
properly
volunteered
It
Court
joining him.
true
re
not
could
plaintiff-wife
the observation that
husband.6
the additional
her
cover against
defendant,
Moreover, me squarely we have never decided the raised issue now *16 directly by of the merits this case. must de- We now wife-plaintiff may cide whether a of have the benefit upon jury a entered a returned verdict original against both the defendant and her addition- defendant-spouse. any In the cases al none of event, “majority” except compelling, the finds which Meisel, analysis the involved either a reference to an statute or underlying policy analy- of the it. We found an such necessary in it is Ondovchik; sis likewise essential to proper approach here. a
Although this Court’s decision in Ondovchik rests upon of that the cause action the fact arose and suit prior to that coverture, filed decision also rests ground upon no the sound direct suit in tort was spouse against by one other. instituted Hence, proceeding there was not in the statute. violation of public policy Nor did the result reached there offend litigation promote since the itself did not or create spouse testify against domestic discord. One did the other. Both have testified to would facts which placed upon liability original im- The product defendants. position liability jury by was not dispute, disruptive any contention or circum- other stance between them. spouses
It clear here that is not a is case being parties dur- or at institution of suit adverse ing any phase proceeding prior ver- to or after judgment. dict and Nor is verdict spouse product by of direct action one a sought present record, in Meisel. On as was other sug- possible apparent, single, or even not a there is “potential danger gested re- to the marital element litigation” lationship “ma- inherent such which jority” assumes. spousal any dissension the absence of conflict, disagreement tres- created the institution of the
or
pass
concluding, as
there is no basis
action itself,
harmony
policy,
or
of fact
that domestic
a matter
litigation
present
destroyed by
threatened
significant difference
an
nature.
obvious
There
litigation (such
impact
direct
which
upon marriage
Meisel) may
as contrasted
have
party
recovery,
created
third
on a
as here,
spouses
joint effort
litigation
unite in a
upon
original
liability
place
defendant.
prohibited by
suit
our statute is direct
All
arising
spouse
on tort claim
the other
by one
(or
showing
negligence.
of a
In the absence
out
any
suggestion)
the circumstances here
even
public policy
*17
judicially
announced
way
offend
deny-
there
no reason for
discord,
is
preventing marital
ing
spouse
judgment.
do
enjoyment
To
tlie
policy
public
employ the
on
to
is
otherwise,
record,
in fact,
rule does not,
doctrine where the
for the
reason
concept for
employed,
exist.
doctrine is
a
So
a
preserving
harmony,
instead
becomes
domestic
but
just
application
defeating
fair and
a
misdirected
responsi-
concepts
proper
Surely, developing
result.
bility
rejection
prompts
negligent
conduct
of immunities.
ueedless extensions
only
probably
Realistically
practically,
time
judg
spouse
of a
the benefits
one
seek to secure
will
trespass
in
be
case will
ment
the other
a
pro
husband has
those instances
as here,
where,
judgments
of such
vided fund for the satisfaction
a
presents
liability
situa
This
contract or
insurance.
particularly
especially
con
free from
tion
possi
satisfy
entail
cern that efforts
Undoubtedly,
a wife
of a marital discord.
bilities
protect
persons
most desires
a husband
one of the
pre
protection
yet
purchase
of insurance,
his
precludes.
needlessly
“majority”
cisely
what
Daly’s insur
“majority”
if
result as
reaches the same
express
spousal
policy
or an
exclusion
ance
contained
family exclusionary
as was
issue
Great
clause,
Co.,
Farm Mut. Auto. Ins.
American Ins. Co. State
(1963)7 and Puller v.
Since assets husband’s upon for are relied this case satisfaction of the appears judgment, danger, there no threat or wife’s “7 apply bodily policy any injury does not ... ‘This to . . . family residing of the insured the same house member 540-41, 412 Pa. at . . .”’ the insured A. 2d at 904. hold *18 relationship re- potential marital to the or otherwise, litigation.8 sulting from the justification doctrine may for the be the Whatever imposed tort immunity in direct has been which extending spouses, I see no reason suits between “major- the Just as instant case. to the that doctrine harmony, nothing too, so ity to marital decision” adds “majority” judgment contrib- reverses the the which “majority” adds nothing marital discord. The utes to pro- immunity is none none needed where where is protection for the for in the husband’s contract vided interspousal “majority” im- extends of his wife. The munity never intended to be included within to area ultimately recognize real- It the that doctrine. fails to upon present fictional ities of the situation and relies rights relationship litigants. view the “majority” The conclusion which the reaches breeds “majority” acknowledges anomalous results. The against original if a verdict is entered defend- the original defendant-spouse, ant and the additional the may right defendant enforce a of contribution from spouse.9 proceed may the The result is that a wife 8 Furthermore, nothing appears suggest in to collusion or to defendant, seeking impose liability dicate the additional upon original defendant, cooperate failed or refused to his carrier. right It true that no of contribution en has thus far been original is so because forced this case. This insur defendant’s apparently coverage judg than half of ance less his the total way However, knowing original ment. we have no whether have) Totally (or soon additional assets. aside defendant has this, that no contribution has so far from the fact been elicited purely judgment particular is a fortuitous factor. case origi just have been for lesser amount which as well could insurance, assets, Or, would have covered. defendant’s nal might original himself have had assets. more extensive defendant particular case, Regardless situation the factual the con “majority” precipitates result still exists tradiction many great other in a cases. itself manifest will judgment, and party, her full third recover party third can then half of recover plaintiff’s spouse. from In that event, though half of receives the full even reality, come a result of funds, have “majority” spouse. On other hand, permissible im- now holds it a wife allow *19 mediately damages third half from the recover party spouse, and half from defend- the additional precluded permitted directly ant. cir- What is cuity. present in any, Marital if is no more discord, recovery Surely, one rea- route of in than the other. soning inconsistency to so leads curious It should not for be the foundation a rule of law. expected reality lacks the fundamental soundness and prevailing principle.10 legal of a prohibition statutory inter- direct spousal trespass (and suits first enacted 1913) require surely amended in to- does that we day immunity beyond express language of extend statute benefit of than some interest other spouses. any acceptable
I am unable to find sound, basis denying wife-plaintiff judg- all the benefits of the upon judg- ment entered the verdict in this case. Her ment was secured and entered without violation of public policy. statute offense to I conclude Hence, that, situation, noted It should also be Koontz a mas superior respondeat theory may join ter who is sued on plaintiff’s as an additional defendant if the husband is negligence alleged plaintiff’s the servant whose have caused joinder injuries. may allowed because the This servant-husband (the original master) defendant to the be liable over for all dam situation, ages. the wife collects her total In this from master, judg then recover the total who amount of Thus, reality, of the husband. the assets ment from judgment by of her total the full benefit receives enforcement of ultimately, against judgment, her husband. appli- this record does not case for the present
cation No lias intersponsal spouse immunity. permitted claimed no other interest be should any; assert successfully any.
I dissent. Mtjsmanno joins dissenting Mr. Justice opinion. Appellant, wealth ex rel.
Common James, Russell. *20 J., 1965. Before C. January Bell,
Submitted O’Brien Rob- Cohen, Eagen, Jones, Mtjsmanno, JJ. erts, in propria appellant, persona. James,
Isaac