This matter raises the question of the continuance in Massachusetts of the doctrine of inter-spousal. immunity. The case originated as a civil action of tort for personal injuries brought by the plaintiff Blanche Lewis against her husband, the defendant Larry Lewis. The defendant’s motion for summary judgment was granted, and we allowed the plaintiff’s motion for direct appellate review. Blanche Lewis was a passenger in a car owned and driven by her husband on July 27, 1973, when about 9 p.m., on a public highway in the town of Agawam, the car slid on a wet pavement, struck a light pole and rolled over on its side, causing injury to the plaintiff. The motion for summary judgment which was allowed was based on the common law doctrine of interspousal immunity and on the provisions of G. L. c. 209, § 6, as amended by St. 1963, c. 765, § 2. In addition to briefs filed by the parties we also reviewed briefs filed by counsel in a case raising a similar question commenced in the Superior Court in Berkshire County. We are thus led to a discussion of the current status of the doctrine of interspousal immunity and our opinion relative to the argument here presented by the plaintiff.
The fundamental basis for the common law rule of inter-spousal immunity was the special unity of husband and wife within the marital relationship. For most purposes the common law treated husband and wife as “a single person, represented by the husband.”
Nolin
v.
Pearson,
Among the many disabilities visited upon a woman once she took her marriage vows was an inability to sue or be sued in her own name. To enforce any right of action for tortious injury to her person her husband had to be joined as a plaintiff; and, furthermore, he was entitled to the proceeds of any judgment obtained. Conversely, to enforce an action against a married woman it was necessary to join the husband as a defendant, and a judgment, if obtained during coverture, became the obligation of the husband. McCurdy, Personal Injury Torts Between Spouses, 4 Vill. L. Rev. 303, 304 (1959). 1 F. Harper & F. James, Torts § 8.10, at 643 (1956).
Within this framework a rule prohibiting suits between husband and wife made some sense. Not only was there the conceptual problem of the single marital entity suing itself but, as a practical matter, the rules of liability would have rendered such suits idle exercises. As Dean Prosser pointed out: “If the man were the tort-feasor, the woman’s right would be a chose in action which the husband would have the right to reduce to possession, and he must be joined as a plaintiff against himself and the proceeds recovered must be paid to him____If the wife committed the tort, the husband would be liable to himself for it, and must be joined as a defendant in his own action.” W. Prosser, Torts § 122, at 860 (4th ed. 1971).
These antediluvian assumptions concerning the role and status of women in marriage and in society which animated and gave support to the common law rule of inter-
Despite the demise of the unity theory of husband and wife and the enactment of married women’s acts, the rule
While most jurisdictions recognize that the theory of the legal identity of husband and wife can no longer support the interspousal immunity rule, those courts which have upheld the rule have generally done so on grounds of public policy. The two arguments most frequently advanced in favor of the rule are, first, that tort actions between husband and wife would tend to disrupt the peace and harmony of the family, and, second, that such actions would tend to promote fraud and collusion on the part of husband and wife for the purpose of reaping an undeserved financial reward at the expense of the family’s liability in
However, the defendant argues that, unlike the situation prevailing in most other jurisdictions, the rule of in-terspousal immunity has taken on statutory dimensions in Massachusetts. The argument is based on G. L. c. 209, § 6, as appearing in St. 1963, c. 765, § 2, which provides:
“A
married woman may sue and be sued in the same manner as if she were sole;
but this section shall not authorize suits between husband and wife
except in connection with contracts entered into pursuant to the authority contained in section two” (emphasis supplied) .
2
By including the ital
The Supreme Court of Indiana in abrogating inter-spousal immunity in the case of
Brooks
v.
Robinson,
With respect to G. L. c. 209, § 6, it was open to the Legislature to take the position that while it did not wish to abolish the common law rule of interspousal immunity neither did it wish to convert the common law rule into a mandate of statutory law. In G. L. c. 209, § 6, it chose apt language to express such an intention. The Legislature apparently recognized the broad scope of the language, “A married woman may sue and be sued in the same manner as if she were sole,” and realized that unless some limiting provision were included the statute itself could be construed as authorizing suits between spouses. By making clear that the statute itself does not alter the rule of inter-spousal immunity, the Legislature closed the path taken by many courts in other jurisdictions in interpreting the broad, general provisions of their married women’s acts as in and of themselves removing the barrier of interspousal immunity. See, e.g.,
Katzenberg
v.
Katzenberg,
In
Frankel
v.
Frankel,
The defendant further argues that even if interspousal immunity is not mandated by statute, a common law rule of such long standing should be abolished, if at all, by legislative and not judicial action. The defendant concedes, as he must, that it is within the power and authority of the court to abrogate this judicially created rule; and the mere longevity of the rule does not by itself provide cause for us to stay our hand if to perpetuate the rule would be to perpetuate inequity. When the rationales which gave meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula. Chief Justice Vanderbilt described this interaction between the judiciary and the evolving common law in an oft cited passage from
State
v.
Culver,
This court has frequently had occasion to effect through its decisions not insignificant changes in the field of tort law. See, e.g.,
Sorensen
v.
Sorensen,
We conclude therefore that it is open to this court to reconsider the common law rule of interspousal immunity and, having done so, we are of opinion that it should no longer bar an action by one spouse against another in a case such as the present one. We believe this result is consistent with the general principle that if there is tortious injury there should be recovery, and only strong arguments of public policy should justify a judicially created immunity for tortfeasors and bar to recovery for injured victims. See
Morash & Sons
v.
Commonwealth,
It follows that the motion for summary judgment should not have been allowed and that the judgment is to be vacated.
So ordered.
Notes
What we have said is not to be interpreted as a derogation of the spiritual and emotional unity that many hold as an ideal in marriage. As the Supreme Court of Washington pointed out, “The ‘supposed unity’ of husband and wife, which serves as the traditional basis of interspousal disability, is not a reference to the common nature or loving oneness achieved in a marriage of two free individuals. Rather, this traditional premise had reference to a situation, coming on from antiquity, in which a woman’s marriage for most purposes rendered her a chattel of her husband.”
Freehe
v.
Freehe,
As to the historical development of G. L. c. 209, § 6, briefly, married women were first given a limited right to sue and be sued in their own names in St. 1845, c. 208, which provided for the separate ownership of property by married women and authorized suits by and against married women “in respect to such property.” The first mention of tort actions appears in St. 1871, c. 312, which provided that a married
The court in the Brooks case was concerned with the following statutory language of TR. 17(D) of the Indiana Rules of Procedure: “Sex, marital and parental status. For the purposes of suing or being sued there shall be no distinction between men and women or between men and women because of marital or parental status; provided, however, that this subsection (D) shall not apply to actions in tort." The court held that this language should not be construed as “anything more than legislative awareness of the judicially created doctrine of the common law. The proviso in TR. 17(D) does not purport to abolish tort actions between husband and wife. Rather it merely provides that if any distinction between husband and wife exists in tort actions, such distinction is not removed by the rule as adopted. The ‘distinction’ which has existed up to the present is, of course, the common law doctrine of interspousal immunity which is, and always has been, subject to amendment, modification, or abrogation by this Court.” Brooks v. Robinson, supra at 23-24 (emphasis in the quoted opinion).
In
Sorensen
v.
Sorensen,