297 N.W. 744 | Minn. | 1941
Lead Opinion
The complaint alleges that the parties during the time mentioned therein were and now are husband and wife; that on December 24, 1939, plaintiff was a passenger in defendant's automobile driven by him over a highway in the state of Wisconsin, *205 near Amery; that defendant so negligently drove and controlled the car that it left the highway, bruising and injuring plaintiff externally and internally to her damage in the sum of $8,000.
The action is maintainable in Wisconsin, where it arose. Wait v. Pierce,
"A married woman cannot, either before or after a divorce, maintain a civil action against her husband for a personal tort committed by him against her during coverture."
She has the right to maintain suit against the husband for damage to her property by his tort. Gillespie v. Gillespie,
But plaintiff contends the cause of action pleaded being transitory, and, having accrued in the state of Wisconsin, where it is maintainable, the rule of comity demands that it be enforced by the courts of this state. But the rule of comity does not prevail when opposed to a well-established law of the forum. And it appears to us that there is a well-established law of this forum that no wife can maintain a civil action against her husband for any *206
tort committed against her person, without regard to the place where the tort was committed. In three states where, under statutes substantially like our own, the law has been declared that a wife may not maintain an action for a tort committed against her by her husband, it has been held that she cannot there maintain such action even though maintainable in the state where the tort occurred: Kircher v. Kircher,
This so-called public policy doctrine touching the right of a spouse to sue the other for torts inflicted is clearly recognized by the court in Buckeye v. Buckeye,
Plaintiff refers to Chubbuck v. Holloway,
We are not unmindful of the fact that the growth of the motor vehicle traffic since the decision of Strom v. Strom,
"No action can be maintained upon a cause of action created in another state the enforcement of which is contrary to the strong public policy of the forum."
We think there is a strong public policy in this state, as established by our decisions since Strom v. Strom,
The order is reversed.
Dissenting Opinion
The "well-established policy" of this state which forbids the maintenance of actions by one spouse against the other for personal torts arose in Strom v. Strom,
Although there is no occasion now to reëxamine the validity of the original rule, yet it might be noticed that Strom v. Strom ignored an earlier statement to the contrary where Mr. Justice Mitchell, in speaking of our married women's act, said its purpose was "to preserve the separate legal existence of a married woman in respect to all her rights of person and property, and, to the extent necessary to the full exercise and protection of these rights, *209
to give her in her own name all the remedies in the courts which she would have if unmarried." Gillespie v. Gillespie,
Furthermore, the strict policy which is attributed to Strom v. Strom has not been followed, or deemed controlling, in two more recent decisions where occasion was presented for narrow adherence to this alleged policy. The first, Albrecht v. Potthoff,
"In view of the present laws governing the relation of husband and wife, this common law rule should not now be extended to apply to this kind of an action."
In another analogous situation, that common-law rule had been extended by other courts to prevent an action by the wife against the husband's employer for the husband's negligence upon the ground that it would sanction a suit by the wife against the husband. Maine v. James Maine Sons Co.
Where then is the "strong" policy which arose from a common-law fiction, which has been strictly limited by our decisions, and the rationalization for which was a subsequent introduction into our law? The justification advanced in support of the policy is that it tends to reduce or minimize possibilities for disharmonizing the family unit. Drake v. Drake, supra. We are to believe that actions by one spouse against the other for conversion of property (Gillespie v. Gillespie,
The effect of the majority opinion is to disallow the proper operation of the Conflict of Laws because a judicial rule of this state, which we do not like, has become our "policy." "It may properly be pointed out that differences in law do not necessarily constitute a sufficient basis for a declaration that the rule of the foreign state is contrary to the strong public policy of the forum." 3 Beale, Conflict of Laws, § 612.1, p. 1651; Restatement, Conflict of Laws, § 612, commentb. Yet that is what the majority of the court must mean when they say, "We think there is a strong public policy in this state, as established by our decisions since Strom v. Strom." Because we have a contrary rule, we are thus to deny access to our courts for the enforcement of foreign-created rights. This approach is not only opposed to principle, it is opposed to decision. In Chubbuck v. Holloway,
While there is some public policy, some inarticulate public opinion behind every prohibition of law, the public policy which is operative in this field is of much narrower scope. "There is a *212
growing conviction that only exceptional circumstances should lead one of the states to refuse to enforce a right acquired in another." Loucks v. Standard Oil Co.
"The only asserted ground of contravention seems to be a difference in the law of the two states. * * * But the fact that the law of two states may differ does not necessarily imply that the law of one state violates the public policy of the other." Nutting, "Suggested Limitations of the Public Policy Doctrine," 19 Minn. L.Rev. 196, 203.
In support of this position, it then quotes from one of our own decisions which has become leading on the question of the "strong public policy" which will justify the forum in not enforcing a foreign-created right. Herrick v. M. St. L. Ry. Co.
"To justify a court in refusing to enforce a right of action which accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that, for some other such reason, the enforcement *213 of it would be prejudicial to the general interest of our own citizens."
The North Carolina court then concluded that [
The public policy which here denies enforcement of this foreign-created right is neither "public" nor "strong." It arose originally from a common-law fiction and from the timidity of judges to depart therefrom in construing the married women's acts. This antique, probably outmoded, rule has become through judicial obedience a settled public policy of this state. Though we do not like it, yet it must persist. Though it was judicial in origin, it cannot be judicial in termination. Before the rule itself can be changed, doubtless the legislature must act. Cf. Law New York, 1937, c. 669. But for this court to frustrate and thwart a legitimate application of the Conflict of Laws by the resurrection of a common-law fiction as the public policy of the state, a policy so "strong" that access to our courts must be denied, to my mind smacks so strongly of judicial intolerance that I cannot refrain from setting forth my views. "The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness." Are we "so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home"? Cardozo, J., in Loucks v. Standard Oil Co.
The order overruling the demurrer should be affirmed.
Dissenting Opinion
I concur in the dissent. *214
