Davis v. Davis

OPINION Marjorie DAVIS, Plaintiff-Appellant, Ann BROCK, Justice. concerns the The issue before Court

Wayne DAVIS, Defendant-Appellee. of the doctrine of inter- validity continued specifically, whether spousal immunity; Tennessee,

Supreme Court of al- should be that common law doctrine at Nashville. negligence lowed preclude other. spouse against Oct. 1983. one 5, 1979, plaintiff-appellant,

On June Davis, Marjorie riding passen- Ann which was ger fishing in a motorized boat husband, the defend- being operated by her approxi- Davis. At ant-appellee, Wayne course 2:00 Mr. Davis set a mately p.m. Lake, re- Percy across Priest intent on his landing to the where he and turning launched the boat. While wife had earlier proceeding across the lake the boat struck impact and the resulted bridge support Davis. injury serious to Mrs. that she sustained appellant alleged cuts and leg

three fractures in one head, body. upper bruises on her arms and oc- alleged further the accident She her husband had “failed curred because of care that an ordi- degree exercise that have exercised person would nary, prudent same, similar, circumstances.” under the stated, injuries her Simply she attributes attempts negligence of her husband damages therefor. to recover summary with a motion for When faced im- asserted judgment which bar, dismissed munity as a the trial court Appeals Mrs. Davis’ lawsuit. af- of stare decisis and observed the rule court’s dismissal. firmed the lower foundations The formalistic to the doctrine originally support lent long ago have of interspousal that, al It is irrefutable away. crumbled not discriminate the doctrine does denying and wife between a husband Murfreesboro, Taylor, plaintiff- Royce early its a cause of action appellant. concept existence can be traced wife; on the legal disability Nashville, only imposed defend- Moody, William C. ant-appellee. concept unity.1 early Henry down that “We have several times laid 1. Sir Sumner Maine observed: only; this is the law takes notice of Families 754

The Washington Supreme apt- relation, Court has nature of the unity ly noted: of interest of husband and wife in each respective rights other’s and duties and

“The ‘supposed unity’ of husband and was to actions for willful wife, limited which serves as the . traditional basis wrongs, battery, such assault and but of as interspousal disability, is not a refer- (Emphasis embraced alike all torts.” ence to the nature loving common one- added.) Id. ness achieved in a of two free Rather, individuals. this traditional Prince, 451, In 205 Tenn. Prince v. 326 premise situation, had reference com- (1959), S.W.2d 908 this Court articulated a ing on from in which antiquity, a wom- subtle the prohibition distinction between an’s marriage purposes for most rendered litigation on as it has de- her a chattel of her husband.” Freehe v. veloped in and the manner State Freehe, 183, 81 186, Wash.2d 500 P.2d which it In applied elsewhere. most 771, (1972). 773 states, even a cause of action arises against when one spouse tortiously acts In 388, 111 McKelvey McKelvey, Tenn. defeats the cause of 77 (1903), S.W. 664 this Court said: action. Past decisions Court make “It has been neither held that husband clear that “the action never exist- nor wife can an against maintain Prince, supra, ed.” Prince v. 326 S.W.2d at the other for wrongs during committed 910, Barton, quoting from Wilson 153 holding coverture. This rests in 250, (1926). 71 Tenn. 283 The S.W. upon their virtue unity by of the mar- explained: riage relation, preclude which would view, law, primarily from other “Under this based on the suing the at and in part upon rights common-law of the respective and duties doctrine hus- wife, involved in (Emphasis any relation.” band and there is never cause added.) action; 77 S.W. at 665. a simply it is not matter of granting an as is elsewhere the This litany, immunity is doctrine.” 326 S.W.2d shielded from analysis critical because unity marriage, incident of has Pollard, 45, been invoked In 207 Tenn. Gordon v. 336 without fail as a for justification prevent- (1960), brought 25 woman S.W.2d a suit ing one spouse suing from the other. against husband for damages her former arising out of an automobile accident. The 96, Gelrich, Tobin v. 162 Tenn. 34 complaint riding she was alleged that as a (1931), .2d 1058 S.W a wife sued her husband passenger an automobile guest being injuries alleged for she sustained due to his Pollard, operated by her husband at Johnny negligent operation the automobile accident, which time of the automobile they riding. were The defendant’s was owned and maintained the defend- demurrer appeal was sustained and an ants, Pollard, Mrs. Lorence Pollard C.P. commenced by plaintiff. This Court af father, as family purpose his mother and a firmed, saying: allegations car. The contained complaint “By the common neither the hus- statutory negligence. common law and band nor the wife could maintain an ac- against by pointing tion out wrong the other commit- defendants countered Johnny ted the accident during coverture. rule rested that at the time of kind, thing saying capacity same takes notice no and no title persons (Powers exercising Patria Potestas accordingly to the liberation which it confers. Father), accordingly only prin- peculiar There is contrivance of therefore ciple grand- which it enfranchises son or retaining jurisprudence for her in the archaic Parent, son at the death of is a his considera- Family Maine, bondage for life.” H. capacity tion of the in such son or inherent (1st 1861). Ancient Law 152-53 ed. grandson to himself become the head of a Unity, vintage compared concept recent new root of a new set of and the Potestas,” is such a to “Patria contrivance. woman, course, Parental Powers. But

755 Haun, Pollard was In Hance v. Tenn. lawfully plain- married to the tiff, Doris suit (1965), plaintiff brought Gordon. S.W.2d T.C.A., 20- under step-father his § The plaintiffs theory in Gordon v. Pol- T.C.A., 20-5-106), 607 (presently § lard, supra, rested on the fact that her of his wrongful death damages for was, marriage had been annulled and there- intentionally mother, step-father his whom fore, plaintiff only void ab initio. The was the affirmed shot and killed. This Court marriage ap- seventeen and the had license sustaining court in de- decision of the trial parently been by misrepresenta- obtained demurrer, fendant’s and held: rejected plain- tion or fraud. This Court however, appeal, tiff’s saying: right “It is then that the quite plain “We think that the annulment of a voida- this case to recover plaintiff the marriage may ble well restore certain only is against stepfather his derivative existing property statutory rights and to his through right the coming to him spouse, spouse, a but does not create in a a claim for prosecuted mother to have wife, right husband or to maintain an against her husband. Since damages the other a tort which permit law of this does not State during period occurred in Tennessee during for tort spouse to sue the other the status of the parties was that coverture, of action right she had no husband and wife. to her next of kin.” 391 pass which could “Upon the solemnization and consumma- 624. S.W.2d at tion of the marriage plaintiff oppor- with the Recently, presented when defendant, subject each was to all of the Haun, supra, affirming Hance v. tunity of privileges and all of the disabilities of overrule it. expressly we chose instead'to coverture, privileges and these and disa- 893 Luna 655 S.W.2d The case of v. bilities marriage continued until the was to identical (Tenn.1983), factually was plaintiff. avoid Haun, yet we allowed supra, Hance v. stat- wrongful proceed, death action give “To an annulment decree such an ing: effect legal theory would be to substitute may that courts recognizes “This Court for practicality. The effect of retroactive im- fashioned a rule of previously have limits, annulment pre- is not without having adopted munity wrongdoing, from scribed by policy justice.” response an earlier posture at date at 27. S.W.2d then as a what to be desirable appeared may have Policy been served in Gordon v. ap- when it later policy; yet matter of Pollard, supra, justice but was not. surely given within a con- pears to be unsound minds, In our legal theory paid homage text, especially when .reasons expense at the reason. pragmatism and longer based no immunity which the is plaintiff was suing under the exist, the domain of the it remains within purpose any liability doctrine so would have judiciary reject applicability responsibility been the Pollard’s Johnny at 897. such a rule.” 655 S.W.2d parents. Because she entered into rashly Clay- holding limited our in Luna We seventeen, age at the tender therein, ton, presented to the facts supra, annulled, union that was subsequently saying: plaintiff was denied access to the court underpinning reasons “Whether the “because there no civil [was] interspousal doctrine of redressed.” 336 at 26. think S.W.2d contexts viable within other valid and Pollard, supra, decision Gordon v. consideration.” must await future unjust re- illustrative the irrational and S.W.2d judicial sults that adher- may come from citing Nevertheless, in Luna utilitarian, exposition our ence to once but now outmoded interspousal status of present tenets. in each of our 49 sister states reveals The disabilities of coverture afflicted women; decided trend away from the married the Married doctrine. Women’s Act, Emancipation by eradicating those dis- In all of the cases previously discussed in abilities, abrogate interspousal did not also opinion, this unity is either expressly or immunity, which afflicts men and women impliedly cited as the underpin- theoretical agree following alike. We with the state- ning immunity. Curiously Harbison, ment by Mr. Justice which he enough, in a decision rendered this Court made in Luna Clayton, supra, dissenting: construing whether the Married Women’s my “In view the Married Women’s Eman- Emancipation abrogated Act cipation statutes are not dispositive of immunity, legislature was held that subject. The immunity gen- was not intended to abolish unity but not marital der-based or as to discriminatory sex. A immunity. itself, That holding, in and of husband could no more sue his wife than objectionable. she could sue him.” 655 S.W.2d at 898. Act, The Married Emancipation Women’s regard the construction the Married T.C.A., (Ch. 26, 1913), 36-601 Acts of § Women’s Act in Emancipation Lillienkamp, removed the disabilities of coverture from anomalous, however, supra, as correct. It is married In Lillienkamp Rippe women. v. Legislature that even “the had in toe, (1915), Tenn. 179 S.W. 628 a mind ... the fundamental doctrine of the woman attempted bring suit for an as unity of husband and wife under the com- sault and battery by committed her hus law, mon ...” when removed the disabil- upon band person during her coverture. coverture, ities of interspousal retention of She contended that the Married Women’s immunity consistently has been substantiat- Emancipation Act had removed effectively pillar ed on the the unity. Unity, basis the interspousal immunity tort actions. upon interspousal immunity which has rest- This rejected that contention in the many years, by ed for so was abolished the following legislature manner: in 1915. Nevertheless, interspousal immunity

“Examination of the cases cited to has sus- own, acquired per- tain an existence of its and the existence of the common-law petuation seemingly of the doctrine is un- rule first laid down herein will disclose a deterred the elimination of the ana- by practically unanimous of ju- concurrence concepts spawned chronistic which it. dicial opinion to the effect that an abro- gation of the common-law rule will long so Why has the doctrine survived for be held to have been accomplished by gave while the old notions that it birth have statute purpose clearly when such ex- by contemporary society? been discarded pressed therein. justi- We think the answer is obvious. New to nourish the rule emerged

fications have vitality may so that its be ensured in the “We Legislature must assume that the jurisprudence. In Luna context of modern had in mind passage in the of the act the supra, stating while the conten- fundamental doctrine of the of hus- parties, tions of one we set forth band and wife under common in favor arguments some of the more recent and the correlative duties of husband and as fol- retaining interspousal immunity, well-being wife to each and to the lows:

of the social order out of the growing for retention of the argues “Defendant marriage relation, that, if it had been in based entirety doctrine its purpose Legislature to alter given traditional reasons courts have act, these further than as indicated in the is, aboli- upholding applicability, its ex- purpose clearly (1) would have been interspousal tion of pressed, or would have nec- appeared by destroy undermine and necessarily would (2) added.) essary implication.” (Emphasis tranquility, marital harmony and collusion encourage would fraud S.W. at 629. ever, pro- where a neither of these avenues protected defendant is insur- is that by ance, (3) would overburden the It is incon- judicial vides a desirable alternative. system with a multitude of trivial and supposed ceivable to this Court lawsuits, (4) frivolous would violate benign influence of principle of stare decisis and should family harmony regarded as solicitous of legislative await sanction.” 655 S.W.2d after one member of only applied when it is made a decision to seek the other. In Johnson against redress purport- We are not convinced that these Johnson, (1917), a 201 Ala. 77 So. 335 justifications, ed singly considered or in uni- battery, case assault and the Alabama son, are maintain the sufficient cause to following observa- Supreme Court made prohibition common law inter- tion, we think pertinent tort litigation in this State. spousal torts either intentional- perpetrated In response position to the advocated ly negligently: many, including the defendant-appellee which would avoid policy bar, “[A]s the case at derogation of inter- troubles, airing family we public spousal tort immunity will have a harmful why weigh see no reason it should more effect on harmony, we think than heavily against this action following reply Virginia West Su- allow.” universally those which the courts preme Appeals Court of perspicacious: 77 So. at 338. “Undoubtedly family harmony is a lauda goal ble rising this era of divorce rates. Harbison, who dissented in Luna Justice However, it is perceive difficult to how expressed opinion v. Clayton, supra, any barring law access to the courts for that: personal injuries promote harmony. will institution will of [not] “[T]he If this were a valid sociological considera irreparably to an end or be dam- come tion, Legislature could orchestrate actions, inten- tort aged by permitting greater even harmony by abolishing the state that negligent. tional or Those who giving statute the right to divorce. married are not in different persons Moreover, there is fallacy an obvious however, others, in my opin- from status this argument,' as under the Married ion are in and need examine error Women’s Act it long recognized been in this state on the the numerous statutes spouses may regard that sue each other in at 898-899. subject.” 655 S.W.2d to their property rights.” Coffindaffer above state- agree with both of the Coffindaffer, (W.Va. 342 S.E.2d ments; however, per- the fact that married 1978). from others is sons are in a different status McKelvey McKelvey, supra, immu- interspousal to conceal not sufficient spurned an interspousal assault on scrutiny. nity judicial from immunity by holding: us is that argument urged upon are The next “We not convinced that it is desirable immunity will interspousal to have the law the plaintiff as contends abolition necessity propagation to be. There is no for it. result in the increased Practically disposi- think our married woman has reme- fraudulent claims. We claim in dy enough. privilege defendant-appellee’s She has the of the tion of the corpus writ of habeas if re- lawfully supra, that abolition Luna v. resort, be, strained. As a last if she need would encour- interspousal prosecute expense collusion, can at her husband’s equally applica- age fraud and suit for divorce.” 77 S.W. we said: ble in this case. In Luna so ineffective judicial system is not “Our Although plaintiff McKelvey, su- deny to suits that we must fear frivolous woman, was a pra, suggested the solutions entitled otherwise would, course, plaintiff relief to a above be available appli- made, simply prospective how- because in some point husband too. The to be a litigant cation bemay guilty of fraud or that agree promotes the doctrine those collusion. judicial ends; Built into process judi- worthwhile and even if we did safeguards against numerous fraudu- prohibit acting cial restraint our would lent claims such as the earlier, deterrent that belief. As is the stated perjury charge, proce- modern discovery basis have courts state dures, and presentation of evidence to to sought preserve interspousal immunity. juries, all inherent in the Rules Tennessee Arguments family harmony relating of Civil designed Procedure and elimi- the impending spectre of fraudulent claims surprise nate uncover the truth have never been jurisprudence revealing all the These relevant facts. subject interspousal of this State on same factors also militate claims immunity,2 any nor do we see reason good companies insurance disad- may adopt be arguments such now. policy vantaged Moreover, tactically. to the ex- doWe not believe that abolition tent companies insurance fear may doctrine of interspousal would actions, they collusive have constitute a breach of demarcation protect themselves either restricting separates adjudication from As legislation. scope coverage adjusting their Hanzelik, we recently said in Kilbourne v. premiums accordingly.” 655 at S.W.2d (Tenn.1983): 648 S.W.2d 932 896-897. course, could, “Legislative argu- We now turn our attention to an taken, function, but we our own abdicate ment is often posited long- when a in a field when peculiarly non-statutory, rule, standing such as immuni- we refuse to consider an old and unsatis- ty, is attacked. argument two factory rulé.” at court-made 648 S.W.2d first, pronged: it is asserted that stare deci- 934, quoting from Manatee Convalescent honored; sis requires that prior decisions be Center, McDonald, Inc. v. 392 So.2d second, it is said court extra-ju- that a acts (Fla.Dist.Ct.App.1980). when it dicially vitiates- a rule time-honored Clayton, supra, In Luna v. we created scope exceeds the of its intend- exception to the doctrine of governmental ed function. immunity by allowing the survivor of one To the first of the prong argument we spouse intentionally by killed the other can reply that our commitment bring wrongful a cause of action for death. strong. stare decisis remains in Confidence attempt by an The instant case is our is great courts extent on dependent personal al- spouse injury to recover for uniformity consistency engendered and negligence of the legedly by caused However, by allegiance to stare decisis. of tort spectrum other. There is a broad mindless con- precept obedience to this can holding actions between our in Luna found the an search for truth and foster the case at presented by cause attitude contempt. our language expresses bar. The following view:

The prong argument second negli- ... instant case involves a particularly “The inappropriate in this case. one. tort rather than intentional defendant-appellee gent argued preser- that are that opinion vation We of the insofar family harmony preven- and the for tort is liability tion of fraud was reten- concerned dependent or interspousal immunity. logical legal tion of do not is no reason there commentator, noting tranquility, in domestic other are 2. One our failure remedies while Childress, (Tenn. claims) adequate, prevention of Childress v. 569 S.W.2d 816 fraudulent 1978), they by presumably “to mention con the common-law so are not deemed ... cept light justifications in of ... v. Trousdale [Robinson court to be for retention supra]”, County, (Tenn.1974) Comment, 516 S.W.2d 626 Inter- the doctrine in Tennessee. observed that: Immunity: Analysis of a spousal An Tort Tennessee, Dying Its Doctrine And Status any court other “The failed to mention (1979). 139 n. 106 considerations, Tenn.L.Rev. policy (preservation ... three two, majority opinion drawing agree a distinction between the I with the ” Klein, 692, 693, mari- support .... Klein v. 58 Cal.2d many given of the reasons 102, 103, 26 Cal.Rptr. 376 P.2d and not con- superficial tal are (1962). impact hand the of a vincing. On the other stat- such as this numerous decision unity, abstraction of now an is, utes, in Luna v. as discussed oddity functioning historical rather than a instances, many very great, and can be in law, concept of is no longer available in the change public such a fundamental support interspousal immunity. retention of state, be my opinion, should policy Moreover, we are not convinced As- by made after deliberation General harmony preserved pre- can be and fraud sembly. application vented continued of the doc- for re- Finding plausible

trine. no reasons I dissent. respectfully For these reasons it, taining cognizant high cost exacted rule because of the absolute HUMPHREYS, Special B. ALLISON meri- places path potentially bar it in the Justice, dissenting. claims, torious we hold that abolished in this totally dissent, and I concur in Justice Harbison’s are contrary State. All decisions to the my add some observations of own. overruled. judge a in the di- pull The forces that correct, judge The trial under in court allowing person day rection of a existing granting the then the mo wrong very alleged for redress of an However, summary judgment. tion for we expression These forces have found strong. applied have decided that the rule has been as, justice “do in statements such orphaned reason, by logic and and direct fall,” wrong “there is no with- the heavens summary judgment be set aside But all of us remedy,” out a and so on. and the pro matter remanded for further can- wrongs are some know that there ceedings opinion. consistent with this that we should not not be remedied and give the heavens in order to bring down DROWOTA, JJ.,

COOPER and concur. court. We know that litigant day HARBISON, J., will weaken remedy B. HUM- when to create a new ALLISON PHREYS, Justice, we Special society with each of our dissent one of the foundations filing separate must dissenting opinion. doing Society must refrain from it. even degree destroyed or any not be in HARBISON, Justice, dissenting. litigant may weakened in order that one I stat- respectfully dissent for the reasons remedy. afforded a ed in the dissenting opinion in Luna society, remember that without We must (Tenn.1983). 655 S.W.2d 893 we contract under which without the social I think immu- subject spousal that the no there would be being kept strong, all live nity firmly jurisprudence is so rooted in the for it. There would be no need judiciary. state, statutory both and common judici- because of the Society does not exist abrogation that its modification or socie- exists judiciary The because ary. by the upon should be considered and acted judiciary obligation of the ty. the first So the representatives people, elected society would weaken nothing is to do that pointed As out in the Assembly. General excep- in the denying, even if this means not Clayton, supra, dissent in Luna v. instance, party in day court tional in common firmly is the rule embedded the injury. who has suffered state, statutory law this but law sur- this ignored majority I afraid the am family the and its incidents has rounding case, be it cannot in this basic truth assumption been the predicated family unit is one of spouses between denied right there is no of action society foundations during marriage. indispensable for torts committed that our first obligation nothing is to do islature can deal with all of the ramifica- may weaken it. tions that the application logic general premise will necessarily lead to. So, because it is inevitable that the newly Legislature will not be bound to make created-right spouses to resort to court in logical these general extensions of the every instance of thoughtless failure of one premise. exempt It could spouses from spouse care, to exercise ordinary will weak- suits because of failure to exercise ordinary en, if not destroy, trust and tranquility care in the home. There should not abe and unity life, necessary I elect family cause of action because one member of the to take a doing hand in this. There are family has left a book on a staircase already enough forces at work in present wife has waxed the day society floor under a throw tending to weaken the family unit, rug, without or one using this additional the shower or the being blow bathtub struck at it. has failed to remove the remnants of a bar of soap, and these things have led to an unit, Weaken the family what is being simply accident. It is unreasonable to cast done today for, will do it: if in the name of pall this of liability everything over that is justice, abstract is reasonable for one done by all the different family members in spouse to have right to sue the other for the home that can and sometimes do result simple negligence, right how can this But, injury. in logical under the extension course, denied to the child? Of it cannot. case, of the rule adopted in this suits can be If all family members are free to brought doing because of the of any of sue each they are if the majority things. these reasoning is logical end, carried to its what Legislature could also define the cir- becomes of the unit family then? cumstances under which a child could sue state, Under the common law of the parents. its The Legislature recog- could husband is already liable to furnish his wife nize that the right of the child to sue its and children with the reasonable necessities parents would tend to destroy right and shelter, food, life: such as clothing, medi- power of the parent disciplinary exercise attention, cal et cetera. How obliga- is this child, control over provision and make tion affected liability new inchoate this; something this Court cannot do we creating? obligation How is this truly unless it is going legisla- to act as a affected final judgment ture. execution the father or husband? fact, Legislature could consult the How will potential this new liability af- people will of the who elect them for the fect parental exercise of discipline? express purpose (the of making new law With excellent law spawning schools in- purpose for judges elected) are not genious new lawyers ever-increasing and act according people’s to the will in the numbers we can look forward to the day matter, be, all, a will which after may when there will be clinics specializing matters be they left as are. this new branch law we are creat- ing. mayWe even see day when clinics

will advertise that interspousal and interfa-

mily lawsuits are a specialty the house.

So, while it is invigorating to take

opening frontiers, new opening

one is something prefer I to have

in.

If it is indispensable that a cause of ac-

tion provided and inter- torts, providing remedy

should be Legislature. left to the Leg-

Case Details

Case Name: Davis v. Davis

Court Name: Tennessee Supreme Court

Date Published: Oct 3, 1983

Citation: 657 S.W.2d 753

Court Abbreviation: Tenn.