*1 532 532.
MOSIER v. CARNEY. SMITH KING.
DOOD v. MOSHER. Decision of Court. Wipe Interspousal Immunity prom 1. Husband — Tort. Judgments in spouses, legal actions representa- between or the estates, recovery tives of their plaintiff was denied because from tort are reversed and proceedings. remanded for further [7] [28] [29] [8] [16, [17] [18] [9] [10] [13] [30, [14, [3] [4] [1, 2, 5, [11, 19, [12] '20] ’25] '21, '22, Liability 27 Am 50 Am against minor child. 19 53 Am Am27 23, 26, 32, 31] 38 Am 17 Am 27 Am 24] 15] 37, Am Jur 20 Am Jur 22 Am Jur 20 Am Jur 22 Am Jur 22 Am Jur 22 Am Jur 22 Am Jur 48] 27] 6] Am Am Jur Jur Am50 22 Am Jur, Jur, Jur, Jur, Jur, 27 Am Jur, Negligence Jur, Am 27 Am 5 Am Jur 2d, Statutes Husband and Wife References 33] parent Jur Jur Jur, Trial Divorce and Husband and Wife Husband and Wife 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, Death 2d, Jur, Am27 Jur, 2d, 2d, Death Death Death Courts 198. Courts Death Death Death Death Statutes § 2d, Appeal 45.§ Husband and Wife §§ 573. Death Courts Husband and Wife Jur, 73, person §§ § § § §§ §§ § § for Points § ALR2d Separation 13. 74. 80. 6. 67. §§ 2. 73, 80. 73, §§ §§ Husband and Wife 344-346. 80. 73, 80. 80. § and Error § 589. § 423. 80. 602. 584. loco § in Headnotes 560. § parentis §§ 589. § 1009. 589, §§ 594. 589, personal 593. Mosier Opinion.
Separate J., Kavanagh, Dethmers, Souris, Adams, C. JJ. M. T. Immunity. Interspousal Tort and Wife — 2. Husband *2 immunity interspousal tort is a creation the The doctrine of of State, changed law, not in and should common codified continuing injustice. to avoid Negligence —Definition. 3. basically question Negligence a reasonable behavior in the is of circumstances. Torts—Compensation—Alimony. and 4. Husband Wife — obliged discharge Alimony whereby spouse is to is a device a obligation recompensing support, an a means of of during marriage. injuries spouse endured one tortious for Immunity Interspousal Daw. Tort —Divorce—Criminal 5. Same — incongruous interspousal immunity with tort doctrine The of subject right spouse or to to to divorce mate of during marriage, prosecution torts committed criminal for disruptive are the marital relation. of Immunity Interspousal —Collusion. Tort 6. Same — interspousal tort should the doctrine Abolition of of pos- delayed abolition would increase the because its not be sibility percep- collusion, since cross-examination skillful of unlikely. tivity make success collusion triers of of of fact Disability Mar- Law — Maintain Suit 7. Same —Common to ried Woman. disability to personal woman judicially a married created of does not at law suit own name common maintain a during legal proposition has no existence support that she
coverture. [45] [44, '34] '35] ^39] '40, ‘41, '43] >8] 36] Comment Note.— past transactions. 85 46] apply new rule 42] 22 20 Am Jur 50 Am 20 Am Jur 20 Am Jur Am Jur Am Jur Am Jur 20 Am Jur 20 Am 22 Am Jur, References Jur, Jur 2d, 2d, Courts 2d, 2d, 2d, 2d, Statutes Right of court 2d, Death Death Death 2d, Courts §§ Courts Evidence § prospectively Courts Death §§ ALR 262. §§ § § § for 73. 80. 223, 224. 233. 198. § § Points 211. 80. 183. 80. 233, and adhere overruling 234. Headnotes to old one earlier precedent regards 53é Mich Interspousal Immunity Collusion—Disruption 8. Same — Tort — op Marital Relation. interspousal immunity, exemplified
The doctrine in Band- of Bandfield, Harvey 80; Harvey, v. 117 Mich v. Mich field 142; Riser, 402; Riser Kircher, Mich Kircher spouses is not in cases where one followed of deceased, possibility collusion, since there is then no nor injuries personal prior action marriage, for inflicted disruption since there is relation, no the marital collusion disruption having assigned been as reasons heretofore for pursuing such doctrine. 9. Courts —Facts. Cases presented, must be decided on the not abstractions. facts Wipe 10. Husband and —Torts—Collusion—Death. personal injuries may An action spouse be maintained one spouse gross negligence the estate the other latter, giving where the circumstances rise cause marriage by death, action have terminated the there no longer being any possibility collusion, hence, public policy presents no bar. *3 Antenuptial 11. Same — Tort —Collusion. policy require alleged Public does not that an action based on negligence merely be dismissed because of defendant after commenced, parties marry the action was chose to each other, adversary proceedings by and detection triers of fact being protection against improper a collusion or other sufficient (CL 1948, 750.422). conduct op 12. Death —Construction Statutes. liberally The death act is a remedial statute and is to be con- remedy strued since it was intended to unconscionable results litigation whereby reached in under the common law it was financially merely less burdensome to to Mil than tort-feasors (CL 1948, to maim their 691.581-691.583). victims §§ 13. Same —New Action. suing wrongful suing One upon under the death act is not a right accruing to the decedent but rather a new cause specifically remedy action created as a those who of for suffer (CL loss 691.581-691.583). because decedent’s death §§ of Immunity op 14. Same —Personal Decedent. injured by by person Those was hilled death who of recovery wrongful not barred are act from of defendant Mqsier v. Carnet. personal purely im- because a death aet under the defendant by might the deceased suit munity have barred the deceased of 691.581-691.583). (CL §§ Purposes Death Act. of 15. Same — liability impose wrongful was to act purpose death of wrongful person act was in case the death of of fatally injured the spouse another, hence, has where one representative the latter would personal spouse, the other of had been that deceased reason not be barred fact of 691.581-691.583). (CL 1948, married to the §§ defendant Immunity. Tort Interspousal 16. Costs —Public Question — eases, inter- the doctrine wherein are allowed in 3 No costs of materially applica- immunity i/n limited spousal has been tort being importance tion, question public involved. of Opinion. Separate Smith. J. Immunity Interspousal Tort —Death— and Wife — Husband Evidence. immunity in Abrogation interspousal this State tort effec- of husband permit deceased to sue estate tive to for of wife alleged injuries and wanton as a result his received wilful of rest, long trip proper driving without on a misconduct driving assistance, and failing warnings, to heed refusal of proving dangerous speed, conduct car at a and urilaioful marriage being recovering damages, no now there
defend. Immunity Recovery Death—Interspousal for — Tort 18. Same — Children. Abrogation in this State is effective of permit personal representatives estate mother wrongful to recover mother so as death sue father only damages the loss their mother children on behalf of gross negligence allegedly and con- caused father curring negligence another driver. *4 Immunity Interspousal Tort. —Premarital Tort 19. Same — Abrogation in this State tort effec- of permit plaintiff husband to sue tive to for defendant wife marriage, injury by prior to their him tortious sustained against being protect collusion scrutiny sufficient fact finder’s by having identity persons economic interest. substantial of 376 532, 20. Courts —Decisions. judgments parties must render Courts "between when the latter purpose call the courts and the is within matter for jurisdictional competence. the court’s
Dissenting Opinion.
Kelly, Wipe Statutes—Interspousal Husband and — Tort Action. by thereto, pertaining Statutes amendments to actions against during women, period married enacted more than of century right have not accorded her the her to sue husband damages recovery injury resulting to her an for interspousal negligent of for 1948, (CL seq.; 618.6; 557.1 § et § 1961, 600.8001). CLS § Law. 22. Statutes —Common legislature presumed to have had the common law mind derogation law, when it a statute in the common enacts hence, along provisions will statute be read with the the common law. Wipe Wipe’s Against 23. Husband — Tort Action Husband. providing may that a or Statute married woman sue be sued to, against” “whenever a cause action accrue shall or arise against her did not her enable to maintain an action in tort injuries negligence, her husband she his received since for (CL no such action accrued to her at common law 618.6). § Statutes—Interspousal Immunity. 24. Same — Tort judicature provision brought Sevised act that “actions against woman, unmarried,” a married she were if rephrasing prior provisions, change previous did im- munity and, given doctrine, effect, since it was not retroactive apply occurring could not S claimed torts the revised before (CL 1948, §618.6; act‘became CLS §600- effective .8001). Negligence. 25. Same —Statutes—Common Law — justify Neither statutes nor the common an law action wife, estate, or husband, the administrator her estate, recovery damages administratrix his injuries negligence (CL 1948, she had sustained due his seq.; 618.6; 557.1 et 600.8001). § CLS § *5 53? Hosier Abrogation op Interspousal Immunity. Law- — Same —Common 26. Adrogation interspousal immunity the common-law rule of of from legislature’s recovery de- tort should better be to the left for many involved, the such termination because of ramifications conceding collusion, Supreme Court had as insurance and right change avoid to rule order to common-law continuing injustice. Antenuptial Law — Torts. Same —Common 27. could, law, the other at common sue Neither husband nor wife during injuries to torts committed their due for marriage. before Interspousal Immunity Legislature—Courts. Death — Tort — 28. immunity Legislative overlooking pro- interspousal error in tort enacting wrongful vision in is a matter death act for by way legislature, Supreme Court correction not the through (CL elimination error a liberal construction of of 691.581, 691.582). §§ Interspousal Immunity. Same — Tort 29. wrongful ability part presupposes act on the The death of thereby indicates deceased to have maintained an action legislative abrogate rule a intent not the common-law of interspousal liability (CL 1948, tort §§ 691.581, 691.582).
Dissenting Opinion.
Black, Precedents—Overruling. Courts — 30. involving long-standing precedent statute the construction a A of merely adherence thereto should not be overruled because judicial pleasing, especially amend- not be where amounts statute, since to do so would ment an otherwise unamended of lawmaking outright power usurpation constitute an all (Const 3, 2). art op Overruling a Precedent. 31. Same — involving interpretation precedent, especially one A all, explicitly long-standing statute, overruled, at should if prospectively. Wipe op Statutes. Husband —Construction 32. long-standing legislature accepted unanimous and has various relating interpreting provisions to married statutes decisions permitting as not the maintenance women 612.5, (CL 1948, 612.6). actions §§ Interspousal Husband Preserved. 33. Same — Tort —Defense right negligent The accrued husband to an action defend injuries prior dale he his effective wife inflicted *6 judicature preserved by expressly the revised act has been of 600.2001, (CL 612.5, 612.6; statute CLS §§ §§ 600.9905). 34. Statutes —Intent. by Legislative properly at the intent what was is determinable might appear a much time enactment rather than at what of by hindsight. later time Negligence. 35. Death —Wife’s for Action Husband’s part wrongful ability presupposes the the The death on act of had ensued deceased to have an action death not maintained if right upon action the administrator and no of conferred of injuries negligent her the estate a to sue of wife 612.5, 691.581). (CL 1948, 612.6, husband §§ inflicted 36. Statutes —Amendment—Courts. by especially judicial order, not not Statutes should amended be by pro nunc tunc amendment. Interspousal Immunity. Costs — Tort 37. cases, wherein the Aro costs are allowed in 3 inter- doctrine of spousal immunity has been involved. Immunity. Interspousal 38. Death — Tort adoption wrongful statute, the death as it The stood before of exception judicature act, to the did not an revised create (CL and normal suit between husband wife 1948, 691.581). Legislative Acquiescence Statutes — Construction. 39. legislature Supreme acquiesced in the The doctrine has the any maMng by a statute reason Court’s construction of of long apply change period a time should in the statute over of may persons irrespective have been which class of of favored by interpretation. the of Stat- 40. Decisis —Construction Courts —Common Law —Stare utes. "duty preceden- Supreme primary reporting The Court’s is that of State, guidance tial]\y, people the the common of of legisla- State, ascertaining precedentidlly the law of of Hosier meanings legislature, tively enacted statutes intended of long-standing interpreta- purpose a that is not when a effected rule overturned. tion a statute common-law of Maxims—Presumptions. Common Law — 41. Dveryone law, ignorance presumed to the law Tcnow of court. is not as an excuse at listened 42. Same —Maxims. government continuity great experiment It is vital to of justice stable, law that law be law and under understanding written, be common the law there learn, required observe, are since citizens conform thereto. Precedents. 43. Courts —Overruled judicial overruling long-standing construction given should not be retroactive statute effect. Separate Opinion Dissenting J., O’Hara, in Part. Wipe Husband and —Torts—Automobiles. maintained, upon injuries spouse predicated suit one A during marriage wrongful arising alleged out an act *7 allegedly wrongful partner when the act resulted in marital marriage only by death, the termination but when of alleged negligent family wrongful operation is act of automobile. op Administrator.
45. Death —Accrual Action to wife, deceased, not have asserted that a now could The fact pre- had would not action death not ensued cause of if asserting an action her estate clude the administrator of from asserting the act the bar cause under the death since to of peculiar to the and not accrual action was wife of (CL 1948, 691.581). action cause itself of Overruling Precedents. 46. Courts — weigh matter merits demerits must Courts of of precedents. long-standing overruling common-law Immunity op Interspousal Abrogation —Death— Tort 47. Same — Automobiles. liability abrogated immunity tort Doctrine from arising negligent instant, cases pending, from future re- the marital family and in operation automobiles by death. lation is terminated 376 Mich 532. Interspousal Immunity. 48. Costs — Tort cases, No costs are allowed in 3 wherem the doctrine inter- spousal materially applicalion. limited in Mosier v. Carnet:
Appeal (Donn B.), Genesee; Parker J. January (Calendar Submitted 9, 1964. No. 11, 50,142.) Docket No. Decided December 1965. Case Mosier, Charles B. administrator of the Symons Carney, against estate of Maxine deceased, Equell Carney, surviving spouse Admiral deceased, and John Akers under the act death for damages arising from collision of automobiles Au- gust 22, 1958. Motion to dismiss as defendant Carney granted. appeals. Plaintiff Reversed and proceedings. remanded for further (Robert Leitson, Dean, Dean & Abram Abram, M. counsel), plaintiff. Morrissey, (John Bove & Yeotis Bove, P. counsel), for defendant King:
Smith Appeal (Stanton G.), from Oakland; Dondero May (Calendar Submitted No. 56, Docket 50,360.) No. Decided December 7, 1965.
Case Mamie Solomon Smith Willa King, Mae administratrix of the estate of John P. personal injuries Smith, deceased, sustained *8 passenger spouse while in automobile of deceased July involved in a one-car 4, accident 1960, State of Action California. dismissed on motion. v. Carnet. Mosier appeals. for fur- and remanded Reversed Plaintiff proceedings. ther counsel), (William Wade, of E. & Wade
Adams plaintiff. for Beier, defendant. & for Hartman
Howlett, v. Mosher: Dood (Stuart), Appeal Hoffius Submit- from Kent; (Calendar January Docket No. No. 1965. ted 50,410.) December Decided against Dorothy
Complaint Bernard Dood injuries May personal 16, 1962, sustained Mosher rusty prem stepped nail on defendant’s on when he Following home. com at her a boarder ises while parties motion, married. On were mencement of suit summary judgment in favor of defendant. entered appeals. and remanded for fur- Reversed Plaintiff proceedings ther Hayes,
Hayes counsel), (Kenneth T. & Davis plaintiff. Luyendyh, Hainer, Hillman, Karr & Dutcher (Bichard Hammond, Baxter N. B. and Robert counsel), for defendant.
ALL THREE CASES: Opinions applicable all three entered cases. pro- Each remanded for further case reversed and ceedings. *9 Mich 532.
Amici : Curiae Michigan
Negligence Section, Law State Bar of (.Richard counsel), advocating Miller, of that the prevents doctrine which husband and wife from personal suing damages one to recover for another injuries by inflicted the overruled, other be retro- actively.
Negligence
Michigan
Section,
Law
State Bar of
(Altaro
counsel), advocating
Alteri,
J.
that no
change
interspousal immunity
in the rule of
made.
he
(for reversal).
pub-
J.
Four
in the
times
Souris,
reports
directly
lished
indirectly
of this Court we have
right
spouse
denied the
of one
to sue the
recovery
damages
injuries
other
resulting
interspousal negligent
from an
tort.1
said that
We
at common law such a suit could not be maintained,
thought
and we found no statute which we
authorize such a suit. That the time has come for
would
a reconsideration of this area of the law is indicated
upon
the fact that we now are called
to decide
originating
these three
each
cases,
in a different
involving
circuit court and each
the successful as-
interspousal
immunity
sertion of the doctrine of
tort
importance
legal
as defense. In view of the
principles
requested
negligence
involved, we
law
section of bar
State
association to submit a brief
present
amicus.
Indicative of the
ambivalence of
thought
question
is the fact that
two
were in
briefs
fact submitted
bar,
one advo-
cating
opposing
repudiation
and the other
immunity.
defensive doctrine of
tort
acknowledge
We
their assistance in our resolution
Riser
St
(1939),
Rep 550);
Bandfield
(1927),
At note that felt the outset we need for re- examination the common law defense of inter- spousal not been has confined to Michigan. jurisdictions Indeed, at least either *10 completely, in have or at least certain situations, fact sampling the defense. abolished A of such cases appendix opinion. collected in the which follows this note also the We common-law doctrine has re- virtually legal ceived universal excoriation the from given scholars who have consideration it. to See bibliography appendix. the selective in included the appendix most of the While cases cited in the rejected pur-, which have port the common-law doctrine holdings upon to base their so-called married many opinions women’s that it is evident from acts, of the immunity the had courts concluded that the longer any logic, defense no had valid basis in fact, policy. virtually statutory The fact that or the same subject language interpretations by varying strongly suggests these courts for that the actual basis many reappraisal of their decisions is a rejection longer common law and its because no applicable to facts modern civilization. pursue forthright
We shall a more in course our disposition of the cases at bar. Since the doctrine ais creation of law common and since such doctrine has never been duty State, codified this it is our to re-examine necessary continuing injustice, and, if to avoid change analyze pertinent it.2 We shall our four precedents in our and, effort to understand them, we tution statute remain in force changed, Article laws now amended or § for the until Constitution force, predecessor repealed.” they expire by of 1963: “The repugnant See their own foregoing. Schedule, to tbis common law and the limitations, Constitution, 1 of the Consti or are shall Opinion Soukis, process decisions other earlier in the examine shall my the reader “To courts. own other of onr reports, any reading new of these is, advice reading any neglect of the old not in case in former he assuredly ages, reported years boots grow spring the new must the old out of fields corn.”3
I. (1898), 117 Mich In Band v. Band field field 550), Rep our Am first of four 757, 72 St LRA precedents, plaintiff married ob defendant taining him in 1897. Thereafter a divorce from she damages began infecting defendant for suit recover in 1893. In her with a venereal disease affirming demurrer, on dismissal of her suit rejected inapplicable briefly as considered Court legislature’s legal modifications conse in quences of the marital relation embodied women’s married acts. *11 following upon its
The Court based decision the expressed considerations: plaintiff’s “The of contention would be an result destroy step man the sacred relation of and other open and to the door to lawsuits between them wife, every wrong, real fancied which the and —suits ground public has law refused on common sup gone policy. This Court has no further than to port protecting wife, act, under the married woman’s in management control her in the right property. It her an her has sustained action battery, for slander, assault and for aliena for tion than of her husband’s affections others Berger 215; v. Mich Jacobs,
her husband.
21
Pope,
145;
Rice,
Mich
Rice v.
104
Leonard v.
27
Mich
time,
At the same
it has held that the
371.
wife
(Browne’s
Preface
Eng
to the
ed in 13
First
Part of the
parts), pp 1727-1738;
Reports
(seven volumes).
Sir Edward
Coke
196&]
v.
Hosier
Souris,
Opinion by
partnership
other
business
into
not enter
could
responsible for
become
and thus
husband,
with her
v.
her husband. Artman
and debts of
the contracts
Rep
(2
Ferguson,
LRA
Am St
must (209 (1926), 475, 202, Wis NW v. Pierce 285). 480, 276, 48 ALR “Undoubtedly en there conduct tortious when person, by
gaged not be a third which would and wife because of between husband tortious relationship attending their mutual concessions Courtney implied marriage contract.” 669). Courtney (1938), 660, P2d Okla upon-Bandfield’s not comment somewhat We shall juxtaposition argument that inter- of the ludicrous spousal permitted because tort suits should not be disruption harmony potential marital of their for helpful with hint while one who has been that, tortiously injured spouse per not'be his should disrupt marriage by suing relation mitted to damages, achieve he nonetheless redress only argument Not a divorce.4 means of legally patently faulty, also it is insofar absurd, but alimony may suggests be awarded to com as it personal injury pensate tortious has personal has beaten his him for refuse to him for a tort disturbed; denying or and the all means 1964), recent decisions seems to leave no that of historical “The “The divorced Dean Prosser policy of the law. This is on the bald destroy chief him. devastating her the adopt it. it, find and that him pp she will reason ' If wife, actions between husband any disruption legal remedy for that to her was not peace survival.” * * * there is a attack on the old rule found in a number of relied if reasoning property, she is so very ground, soothed upon by charitable: harmony —and Handbook state of domestic sufficiently injured appeals possible justification this even and deterred from all these brings peaee theory to the and wife would the Law of Torts although tranquillity though home, courts, a criminal that after a husband reader, harmony which is or however, she has left the same courts angry for it reprisals if she sues lot prosecution left him (3d ed, against disrupt is that to sue except to be him by. *13 547 Mosier v. Opinion by Souris, J. ability spouse’s injured to labor. How impaired the provided specifically “if the estate § Stat, 6245 wife shall insufficient to the awarded and effects for the suitable support maintenance herself and marriage com as shall be of the children and such custody, the court fur and care mitted to her personal part estate her such decree to ther alimony his estate out of and such the husband gross paid just personal, to her in to be real and reasonable, hav as it deem shall otherwise ability ing regard and the husband parties, and all the and situation character Alimony of the case.” at circumstances was other today (CLS field, 1961, Band 552- time of [Stat 11 1964, PA No Ann last amended .23, as 25.103]), whereby Supp § a device a 1965 Cum spouse obliged discharge obligation an was recompensing support, not a means of one injuries spouse during endured for tortious marc Cummings Cummings (1883), riage. 50 v. Mich See . (1956), Mich v. Johnson 346 418 305; Johnson note that two of the It is also of interest to three support jurisdictions Band cited of its field positions. holding have modified their New since permits by interspousal now statute suits, York permits negligence in a Maine defendant while implead purposes by a wife to suit of contribution. See husband for
appendix. Thus, the Maine Reagan (see attitude Bedell [1963], court’s current 24]) [192 Me 292 A2d is somewhat different at of Ab that which existed the time (24 Rep 27), Abbott, bott v. Me 304 Am wherein an the court dismissed suit in these Oliver, Settle, J., terms: “As said State curtain, ‘it is better to draw the shut out the NC parties forget public gaze, and leave the ” Subsequently, forgive.’ 67 Me 307. even Opinion by Souris, rule in favor its former renounced Carolina North. permitting to maintain suit wife one of against (1923), Roberts v. Roberts her husband. 1479). ALR SE 185 NC 566 necessary, in the context of consider do not We upon to in two decide, are here called we the cases already marriage ended relation was the third mar- and in commenced was before suit riage *14 notwithstanding pendency the was contracted priori litigation, further the a to consider the of personal permit interspousal argument tort that to gossamer fabric of marital rend the would suits felicity. Harvey (1927), Harvey the 142, v.
In inter- in which our Court considered second case spousal immunity, passenger sought a wife to injuries in her husband driver for recover argued accident. Plaintiff in an automobile curred that an amendment to the married women's act permit suits, be construed to such but should rejected argument. the It is evident from the Court opinion inter from its narrow that aside Court’s pretation the believed that no the statute Court of right solely the action based common such of primarily for two either, exist reasons: law should that the Court observed “we can conceive First, liability insurance, where carried of circumstances might moving [in prove husband, the the factor Implicit 239 Mich suit]”, 142, 146. the initiation of assumption speculation is the that in the Court’s promote permit suits would be to collusion be bringing spouses in not We are tween suit. jus persuaded possibility that the of such collusion expressed judicial for it. over tifies concern For century, increasing in half a an number of States § 27.658), In the 600.2001 judicature provisions (Stat act Ann 1962 Rev of 1915. See CL of which are § 27A.2001).—Reporter. now incorporated § 612.6 (Stat CLS Ann Hosier Opinion by Souris, intersponsal Kingdom, tort suits in the United degrees varying permitted no evi have been admin yet to show adduced dence has been thereby. perverted justice The has been istration any lawsuit, possibility exists collusion might greater conceivably somewhat while parties opposite are and wife and husband when background, skilled cross- our lurks an insurer perceptivity triers and the examination unlikely. suggest To other fact make its success wise adversary reject the of our effectiveness making radically system determinations, fact yet ready position we not are to take. extreme spouses, collusion between shibboleth Harvey Harvey, allusion in was direct which there often an obstacle been raised to suits between has spouses well, in which mar- and, as in other suits riage Thus, relation is involved. in Glover v. Alcott (1863), Mich the Court stated a wife carry general on a trade or on could business Christiancy credit. Mr. noted that while Justice object of the married women’s act was benevo- *15 fairly liberally it lent, and “while should purposes, greatest for these construed care and required guard, circumspection pos- are far as being against a sible, its made mere cloak for the upon creditors, frauds of the husband it is his of which peculiarly susceptible; part which was no design legislative facilitate.” Mich 470, Mr. dissent, Campbell 486. In his Justice ex- system: pressed in more confidence our trial question in is a “Fraud, cases, such fact, not of I think in case law. before us the court presented jury great below the whole case to the with peculiar The character of the fairness. was transaction fully and their was on, commented attention light every thing called to could throw on the 376 Mich 532. Opinion by Souris, * * * require such The real facts are as to case. scrutiny, jury sharper a much and are much from a suspicious, more if the married relation did not than fairly however, them, laid before This, exist. and we must arrived at was presume their deliberate conclusion was by regarding 11 Mich it.” of Justice correctness views Campbell’s subsequent out Court, borne decisions viti holding, ating Justice and the result Christiancy’s pre ant absence the forewarned economic chaos accompany e.g., See, collusive suits. dicted Cooley’s opinion Mr. Justice Tillman v. Shackle (1867), 198). ton Am Dec decrying dangers Second, in addition to Harvey Harvey collusion, decision Court in based its upon the thesis that a married woman has legal during support no existence coverture. In statutory thesis, this law of it turned to the common and Virginia, as construed its court: [123 “In Keister’s Administrator v. Keister Va supra, 157, 160, 161, 96 SE 1 ALR 439], Virginia provides: court stated that the statute of * * * “ ‘A married woman contract and be con * * * tracted with, sue in the same manner and consequences with the same as if she unmar were * * * right liability ried, whether or asserted her, shall have passage accrued before after the * * * act,’ of this holding and, the statute does confer right married woman a of action her husband personal for involved subject tort, so well considered the the case bar at that we make liberal * * * quotation therefrom: “ primary inquiry ‘The confronting us in the in- stant case, therefore, is whether the married women’s Virginia, portion statute of which relied on *16 by plaintiff quoted the in error is above, confers- Hosier Opinion by Soukis, J. during upon tive women coverture the married substan- support right essential to a cause of civil action damages during instituted a suit at law the in wife her husband, a for an coverture assault the coverture? during upon her committed the husband “ right question legal a civil ‘The substantive personality legal a married woman, existence—a —of legal apart personality separate and from the of right during Such a mar- husband, coverture. ” woman not at ried 239 had and has common law.’ Mich 142, at common law a married that
The assertion legal during coverture is no existence had woman any perceptive analysis the of cases to which one by jurists yet made of it gives notoriety: has been some lie, marriage, per- “By are one the husband wife being legal very is, the or existence that law: son marriage, suspended during the the woman of incorporated consolidated into that least is at * ** principle, Upon this of of husband. depend person wife, al- in husband and a union legal rights, duties, disabilities, most all the acquire marriage.” Black- of them either England, ch on Laws stone, Commentaries 387). p p (1 Cooley [4th ed 1899], many the attitude of nineteenth Illustrative century is the case Ritter v. American courts (1858), Pa 396: Ritter favourite maxims of the common law “One of the marriage woman one
is, makes man and possibil- person and of law, course excludes ity teristic of the contract them. charac- of a civil suit between Now this may a fiction, be considered absurdity, fossil, an or whatever else necessities it is exact it, new era denominate but will God, accordance with revealed was de- *17 376 532. Souris,
Opinion by J. signed protection woman, of the and leads the sympathies and interests, of identification to that which secures blessings neighbourhoods the families and to good harmony order. and of legislative competent the “It doubtless qualities modify change of the the and power to altogether; perhaps it marriage to abolish relation, any history race human teaches the of if the but concubinage alter- the that is, whatever, lesson native you impair just marriage. In so far as of just encourage you far In so as the other. one, the you wife, of and interests husband the material sever sympathies destroy you which constitute degrade and the divine relation, oneness concubinage. to mere institution complete “Nothing that severance could so litigation open degradation, to throw as rights, parties. and advocate for woman’s The maddest on of all divine institu- earth
for the abolition more decisive blow wish for no tions, could litigation than this. The flames the courts would kindle hearth would consume on the domestic conjugal bring bond, on new in an instant the discord, of universal of unchas- cru- era era indeed—an tity, bastardy, violence, of dissoluteness, elty, murders. expose fundamental re- “But courts will consequences litigation? of unbridled lation to the 31 Pa 396, Never.”
Notwithstanding proclamations, bold we have such of married women at common examined status whether there such a law determine was indeed legal unity and wife at the common law.6 husband superficially,
It cannot be at least, doubted involving treatment of torts mar- the common-law explained upon woman can be basis ried during personality. legal the wife had no coverture 6 See, generally, of “The Married the definitive discussion Woman” ed, pp Holdsworth, History English (1st 1909), A Law 404- in 3 416. Mosier by Souris, Opinion join or be husband had to procedurally the Thus, how- If, his wife. joined suits legally circum- extinct were the wife ever, speak inappropriate logically it would stances, of personality being- committing her since, a tort her ego but the alter viewed should be she extinct, “unity” Despite esoteric talk husband. quite practice realistic been law in has common recognized early wife can commit very that a *18 tort: a * * * “ batery port trespas de de soit brief Si supposant que deux et la eux femme, et envs le baron appiert pi’, respond la et le baron auer bate le
duissent pur nemy, feme, la ceo le baron sans femme q de la feme.” Y.B. port come de la torte tort, lact est auxibien de son Hy p pl (Wight ed, I I VI 1601).7 against a Similarly, a tort was committed when procedurally although re- the common law wife, join in the it in fact quired recognized suit, that the husband in the the action inhered the cause of that husband, which would be in the and not wife cog- personality legally were not if the wife’s case purport certainly Weller the This is nizable. 892): (95 Eng Rep (1769), KB 414 Wils Baker objected “Lastly, that the and it husbands was joined ought action. In have this not to wives very all to reconcile difficult this, is answer the cases in this joinder touching matter of in the books say present it is for us to that at sufficient action; any express grounded contract on action is not joined implied, are to assert the husbands but or right their which has been wives, interest of the and without and the tiff, tort, as for the tort of the wife. If a writ of and the husband the wife, supposing wife, trespass inasmuch as the action is appears for battery they and the wife (Translation furnished.)—Reporter. both might brought against not, brought have beaten the the husband as well for his the husband answers plain- [Dec: 532. Souris, by Opinion by injured defendant; whatever the and disturbed be it do employment, right, interest, nature of this the nothing all to hath at husband own, the * * * conformity; joins only for he it, with meritorious cause she the the wife is
Wherever purpose strong very join case to this in action: a was case Jac 778 which and is Oro so Sid curing upon assumpsit an for and feme baron alleged facto that she and wife, a wound cured action, cause of it, resolved she was brought was in both their names and so well action enough. Wood of Holmes and case, Wife * * * plain upon an case wherein the was action upon quantum a cure done for declared meruit tiffs plaintiff’s wife; count another provided plasters for the found medicines and objected upon general demurrer it was defendant; that the the join, wife for that she was could not; action, sole cause because the medicines plasters property, the husband’s own and the were opin damages severed; could not be of if the action they Court; ion was had but said that brought only, the labour the wife been might joined.” 2 414, 423, well have KBWils she *19 brought against sounding in If an action tort were predicated upon husband and an act of the wife, superfluity the wife, substantive of the husband is further the fact that the would not action shown upon abate death. husband’s “Ejectment. plaintiff, it After verdict was was moved, the husband dead since the Nisi day question in before banco. The Prius and all, whether bill in was, should abate should against ?—And the wife because it nature stand trespass, charged an action of the wife is adjudged, her own it the action fact, was Bradford 8 Manby v. v. Budsingham, Scott, Sid Cro Jac (82 (79 Eng Rep Eng Rep 1000, 1011), 65).—Reporter, Mosier Carnet. Opinion by Souris, judgment against should be wife, continued entered because the husband was sole, her (1614), Rigley Lee and His Cro Jac dead.” Wife 304). Rep Eng personal property married, her woman When property her The husband. choses became possessed by an unmarried woman were, action among personalty, in action and a cause of action in tort. The such choses course, might be included a woman with her into action which took
choses marriage only if he became her husband’s reduced possession during to If he did not them coverture. they when re- so, do remained woman’s she was rights in the coverture. inhered leased although during woman, and coverture the husband bring properly could suit, his suit viewed would depending vitality be derivative for its sub- relationship. sistence the marital egregious it Thus, indeed an was error for this Harvey heartily Virginia Court in to embrace so (p 148) statement court’s that a woman married legal per- “had not and at has not common law” a apart sonality or existence from that hus- In band. the context of the issue we here consider, proper say it would be that a married woman was judicially personal disability under a created ignoring maintain suit her own name, but legal reality say that a married woman had no legal existence. Pollock and Maitland’s considered conclusions are of value: particular guard against
“In we must be on our ruling principle the common belief that the is that ‘unity person’ which sees an wife. between husband and * * * thing doWe not treat the wife a thing person; or as that is neither nor .somewhat person. we treat her as a Thus Bracton tells us that if either the husband without the wife, or the *20 532. Souris, Opinion brings an action for the husband, the without wife exception take to this can defendant land, the wife’s they person, quasi for are one they one are ‘for impracticable But this blood.’ flesh and one propo principl working by a real is followed sition ‘for e : is thing the husband wife’s own and the is being The hus head of the wife.’ guardian guardian: we believe to be the wife’s is
band —that explains great principle; a and it fundamental guardianship is remember we deal, when History English right.” Law profitable Before (2d 1899), pp I ed of Edward Time present the issue of third case to v. Riser was Riser to this Court tort 518). (1927), Defendants, NOCA 240 Mich plaintiff her husband invited wife, husband accompany vehicle on short in defendant's’ them jaunt. on the husband drove Plaintiff’s automobile driving journey leg and while he was return an accident injured. plaintiff in which was occurred against brought defendants, suit Plaintiff motion for dismissal defendants’ held that Court granted: have been should damages might not recover “Plaintiff injuries against for her occasioned her husband Harvey, Harvey negligence. 239 Mich. See his length. at As the matter is considered where against plaintiff husband, not recover recover she cannot car, driver of the drove. defendants, for whom he owners, “ liability of a motor vehicle ‘The owner negligent operation damages by the caused person, upon rests the doctrine another thereof implied. express agency, “ liability based the doctrine of re ‘The is superior. spondeat If liable the servant may not be not liable. Hence the master master liable injuries by the wife of the driv sustained *21 1965] 557 . Hosier Opinion by Souris, J. Maine & Co., 240 Maine v. er.’9 James Sons 198 Iowa, 161).” 37 ALR 20, NW Mich 402, 1278 404. subsequent developments,
But for the case would since it does of little interest not discuss inter- spousal except Harvey. for its citation suits The plaintiff Court Riser reasoned that since could negligence, not sue her husband for his she could not agent plaintiff’s either, sue defendants as whose acting driving, despite husband was the existence liability act, even then of the owner 1915, PA No § (1957), Moore 302, However, 29.10 v. Palmer (and 363, 350 Mich four members of the Court sub e.g., sequently majority, see v. Gosso [1958], Kiefer 19) liability 353 Mich held under the owner lia bility predicated upon act is not the doctrine of respondeat superior. language hold that the “We referred to in Geib [320 [240
v. Slater
and Riser v. Riser
holding Michigan
liability
Mich 402],
owner
act
upon
respondeat superior
to be based
the doctrine of
expressly
is
overruled.”
she do driving. The similar husband was a vehicle her against illogic railing hus wife suits (or disruptive tranquillity con marital band as collusion) at the same ducive permitting husband’s em time wife to sue the r negligent upon ploye of the husband’s basis injury Harper wife, commented was (1956), pp James, Torts 647: *22 problem raised from time to time has been “The jurisdictions not allow tort actions which do precluded spouses the wife is also whether between employer recovery the when husband’s from from injury his the husband in the course was caused the logic employment. situation of the The of recovery the because hus a denial would call for band Presumably if the wife recovered employer. indemnify to his would liable be impaired harmony would be domestic him in this circuitous directly. quite if sued him as much as she had manner employer insured, were insurance the the And if employer’s company subrogated the would be to against cases so claim the husband. Some hold. rejected authority array impressive has an But logic the ‘A allowed wife to recover. tres the pass, negligent person of the willful, though an act, unlawful wife, not cease does liability exempts the husband from for the law damage. not hide behind the skirts of Others immunity.’ [Schubert In the Schubert Case v. his Wagon August (1928), Co. NY Schubert (164 293)], Judge ALR NE Cardozo met 42; problem indemnity ‘The master way: following in the “ against who recovers over serv- right upon any theory ant does not need to build his subrogation belonging to a cause of action once of to injury. [for A sufficient the victim basis independent duty his] recovery is the breach of an duty owing to himself. The servant owes service, the master to render faithful must an- Hosier Souris, Opinion damage quality of the if the service swer for ” than] [lower the standard.’ below Finally, issue last considered this Court interspousal in Kircher v. Kircher 72). plain- (1939), There NS 288Mich669 NCCA against sought in- her tiff to recover husband negligence alleged juries in the State caused his already permitted which then Colorado, State denied re- tort suits. This Court opinion referring precedent in a lief brief just noting that such are cases discussed suits public policy “contrary to State”.
II. to turn to the of the cases time has come facts us, for it to facts and abstractions now before ultimately we must direct our attention.11 to which King plaintiff sought wife to recover In Smith injuries in- the estate of husband operated by an when automobile her husband curred riding was and in she was involved an allegedly aas result of the deceased hus- accident, gross negligence. From the trial band’s court’s *23 grant plaintiff motion to dismiss, defendant’s has appealed. why
In we can circumstances, such see no reason permitted. suit not should Collusion between the impossible spouses already is and death has de- stroyed “the relation sacred of man and so wife”, “public policy” not enter a does bar. as plaintiff Mosher,
In Dood v. Bernard Dood was residing a boarder in the home of defendant Dorothy May Mosher when, 16, on 1962, he was “11 things in regulated ‘You are to be all governed,' said gentleman, ‘by hope have, long, fact. We to before a board of faet, composed fact, of commissioners of of people who will force the ” fact, people a nothing Dielcens, to be and of but fact.’ Hard (Oxford ed, 1955), 2, p Times Press Univ ch 7. [Dee. 376 Souris,
Opinion by rusty walking injured stepping nail while on a outbuilding home. On at defendant’s around an plaintiff gave July written notice to de- 16, required injury, hospitaliza- fendant of tion and resulted plaintiff’s work for six loss of April plaintiff filed suit 3, months. On April on and the 4th, was served she defendant, appeals April parties married on 5th. Plaintiff were judgment summary in favor defendant. policy public again, can conceive of no Here we parties, bar a suit. aware which should such pendency chose to be suit, of the nonetheless permitting it be said How, then, married. could disrupt mar- suit maintained would such to be require riage? Indeed, were we to dismissal of marriage parties, upon the of the would suits such relationship discourage we are told we Perhaps per- policy encourage? more the law’s tinent is the to Harvey Harvey, allusion in 239 Mich possibility cir- 146, of collusion such 142, cumstances. Like Justice Glover v. Campbell supra, are Alcott, 470, 11 Mich discussed we content adversary proceedings leave and the triers fact untoward, and, indeed, the detection parties litigant. part on the of the criminal,12 conduct Finally, Carney. turn to Mosier v. we There, plaintiff administrator estate of Maxine passenger while a killed, was a car She when that husband, driven car with collided brought Akers. Suit a vehicle driven John was wrongful (CL §§ death act 691.581- under the Supp [Stat §§ Ann 1959Cum 691.583 27.711-27.713], § [Stat 600.2922 Ann now 1962 Rev CLS Carney’s 27 A.2922]) § on behalf of Mrs. minor chil negligence part alleging dren on of defendant gross negligence part Akers on the defendant CL 750.422 (Stat Ann 1954 Rev § 28.664). *24 Hosier Carnet. Sotjbis, Opinion appeals from the trial court’s Plaintiff husband. motion to granting husband’s dis defendant order to him. as miss improperly argued this action was It per- wrongful
brought act death under an action mits injuries person death of a or re “Whenever by wrongful sulting act, caused shall be death, neglect
neglect act, and the or default is default, ensued) (if had have en would death as injured party maintain an action and titled respect damages, 1948, thereof.” CL recover 27.711). (Stat Supp § § CLS Ann Cum 691.581 27 A.2922) § (Stat Ann 1962 Rev 600.2922 parentheses a coma substituted eliminated after “would”. Carney reasons that Mrs. could not have
Defendant
that,
husband had
there
sued her
she lived
fore,
estate
not do so after her death. We
wrongful
must
remedial statute
liberally
death act is a
remember
been
thus should be
has
Township
See
construed
us.
Merkle
Bennington (1885),
(55
Rep
Opinion by J. Souris, plaintiff that a wo have held instances In certain wrongful death act be- the recover under not could an not have maintained could cause his decedent action ever, damages How- had he lived. and recovered of those cases discloses an examination defect in- substantive have been there would ¡pme hypothetical of action. cause the decedent’s herent in purely personal a held that because have never We by immunity might decedent, suit those have barred by injured barred from suit. also he his death would negli contributory the have we said Thus, presence of which would gence deceased, the aof by him, would bar in a defect suit a substantive be recovery e.g., wrongful death act. See the under (1924), R. Co. 228 Mich Detroit, & C. J. Baader 104. Other that this however, demonstrate cases, legislative construing lan the avoided has Court pur technically the manifest guage to defeat so namely, give pose a cause of action for to act, the of surviving designated classes of certain the benefit wrongfully killed decedent. For relatives (1914), example, Detroit & M. R. Co. Lincoln v. 710), sought (51 LRA defendant NS Mich recovery plaintiff’s cause of action for to defeat potential earnings deceased minor of his son by arguing he that had the son survived “could not recovery for the of his have the defendant sued belonged parents”. power, earning to for that his interpretation was, an Such open rejected speaking, strictly Court, to the but it considering the act in these terms: it, following the Ameri “1. We summarize English act of the loss death can authorities: 93), commonly (St & No 10 Vict of 1846 statute Campbell’s and the act,’ various laws called ‘Lord it, that have been modeled after of a similar kind gave a cause of action unknown to the common new designated of certain for the benefit classes law, Hosier Opinion, by Souris, surviving relatives do not take the relatives. Such by damages deceased action for cause of operation the statute by law, otherwise, them transfer to but are enabled by pe recover cuniary taking wrongful to themselves caused loss decedent,
off of the continuation whose to them. The life would have been beneficial action beneficiary surviving mentioned in accrues to the injured the statute person is reason of death wrongful caused act of another. It strictly proper say that it cause of survives; rather a action action which new *26 (5 given by §§ and 10428 How 1897, CL 10427 Stat 13703), brought, §§ [2d can ed], which solely for the benefit of the estate but for the benefit named in the statute. The above of the beneficiaries compared § with sections, when CL 12761), They plain. [2d ed], are made How Stat entirely distinct losses recoverable in refer to dif rights. right 10117 refers to the ferent the Section injury the for loss occasioned to deceased right refer him. to the Sections surviving as for the the relatives beneficiaries dependent injury. to them. Both are on the loss language provision The one shall is that ‘actions injuries personal case of the death of survive,’ and of the ‘in other person by wrongful a the act liability, new of another.’ Section 10117 creates no by prevents lapsing the death of an old one, but liability, create a new while and 10428 sections to the common law.” 179 Mich one not known 195, 196. that since the minor could held have re- Court wrongful injury damages had he sur-
covered parents damages could recover of a vived, his dif- power. earning nature for of his ferent loss “if discussion The Court’s fateful words persuades not ensued” us that it inter- death had barring preted them as suit on decedent’s death only if some there were substantive defect de- by SffUMS, Opinion discussed the Court contribu- Thus, case.
cedent’s the servant rule as in- fellow negligence tory relatives would be surviving by suit when stances barred. sight lose of the fact that never must
We death wrongful act sought under legislature of a in case of death person liability impose another. None of the Michigan act of the-wrongful we have considered chal- tort cases injure that one spouse may fact apodictic lenges fatally. all Indeed, they wrongfully another injure tortiously, another spouse may that one admit on other grounds.13 the suits but bar legislature intended do not believe We suit, Mosier, administrator’s any cases which will inure to the benefit of recovery upon children, be defeated merely minor should decedent’s cases this Court earlier indicated because have she would been barred survived had decedent pleaded There have been her husband. from suing in decedent’s resulting acts of defendant wrongful does defendant pleadings his Nowhere death. of his deceased wife part fault on any aver have constituted substantive defect might Rather he entirely upon her. relies to suit alleged personal his raised bar *27 her. by suit in accord with we are regard, supreme
In this which, although acknowledging Minnesota court of there, suits are forbidden interspousal held, of an asserted defense in the face death that under act simi immunity, wrongful might a suit Michigan’s brought lar to by for damages estate of husband sustained 35 NJ [71] (1958), 394 [13] So See, 2d 44, 50, 670, also, Pa [51] Johnson 116, (171 [121] A2d v. (145 People’s 1, 4) ; A2d Germillion v. 716, 718); First National Bank Long Caffey v. (La App 1954), Landy & Trust Co. (1961), 565 v. Hosier Souris, by Opinion 268 Minn (1964), v. Lindemann Poepping wife. In the lan concluding 512). NW2d (127 death act wrongful giving the Minnesota guage have maintained might decedent “if the an action action, bar plaintiff’s did not had he lived” action, an from quoted relied upon court the Minnesota v. Nelson Shumway (1961), earlier decision its : 319, 322, (107 531) 259 Minn NW2d “ refers to the facts circumstances ‘This clause well action, any the cause of as as rise to giving permissible to any facts or circumstances pertaining rather contributory negligence, defenses such as than to the the action could be person whom maintained. “ the fact that strengthened by ‘This conclusion rationale of the marital- spouse death of one might whatever force it doctrine loses immunity marriage Where the has been have had. otherwise terminated danger death domestic discord any has, the action like- arising enforcement that we wise, terminated. do not believe should We an intent legislature to extend ascribe to doctrine to where intrafamily its existence tion.’ situations justifica- is without reasonable any ” Poepping, added 268 Minn Emphasis 30, footnote, 512, footnote, 515, NW2d (127 516).14
Summary. Michigan have precedents examined We mili- have found them nothing logically prosecution of the suits against permitting tates we seen the “rea- Indeed, here involved. have that, cases, if it be called of those has soning”, no in the fact circumstances of applicability these P2d ALR2d 212 Miss 335 14 See, also, 723); 656); SW Welch (54 Deposit Johnson 187 SW So 2d Davis Guaranty v. Ottomeier 476) ; (1951), LRA Fitzpatrick Bank 1917B, 774). 410 Ill 130 (1954), & Trust Co. Nelson v. Owens 45 Wash 2d (101 (1916), NE2d 124 Ark (1951), (275 *28 Mich by Soubis,
Opinion appropriate impression. It is of first instant cases concerning the have here what we said that add immunity interspousal must tort be con- doctrine light fact circumstances. of these same sidered may (1) day a be main- that suit hold: "We tained injuries spouse predicated dur- to one allegedly wrongful arising marriage ing an out of allegedly partner, when the marital act wrongful mar- in termination act resulted (2) riage a suit commenced before death; may parties marriage maintained thereto against alleged spouse an the other for ante- one nuptial tort.
These are reversed remanded to cases proceedings. for further No costs, trial courts importance being public question of involved.
Appendix. jurisdictions have abolished the defense interspousal part or in whole may be classified as follows:
(1)
permitted
in which the
have
Those
courts
e.g.,
general;
suits
Williamson v.
Bonding
(1955),
Massachusetts
&
Insurance Co.
172),
(116
is,
Conn
A2d
“It
and for
years
many
has
the law of
been,
Connecticut
may bring
a wife
and maintain an action
injuries
personal
her husband to recover for
by
caused
negligent
his
act or
acts
this State”; Gilman
(1915),
(95
Gilman
NH 4
A LRA 1916B,
907),
injured
a “If married woman is either
or dam
aged by
illegal
gives
act,
another’s
the statute
remedy
though
even
that other is her husband”;
(1953),
729),
Brandt Keller
413 Ill 503
NE2d
holding
that in all cases a married woman
sue
legisla
and be sued as if
ture
wore unmarried;
she
subsequently
added to the Illinois married
*29
567
v.
Mosier
Carnet.
by
Opinion
J.
Souris,
proviso “that neither husband nor
act the
women’s
person
may
for a tort to the
com
sue
other
wife
during coverture.” 15 Nonetheless in Calvert
mitted
(190
App
1),
Morgan (1963),
23
41 Ill
NE2d
2d
v.
permitted
appellate
the adminis
court
the Illinois
trator of
benefit
for
sue,
wife’s estate to
deceased
of the
the estate of her hus
children,
wife’s
murdered her and killed himself.
band, who had
Guaranty
Deposit
Bank & Trust Co. Nel
v.
Accord,
476);
(1951),
(54
212
335
Fitz
Miss
So 2d
son
(1932),
(242
ND 191
maurice v. Fitzmaurice
526),
62
NW
personal
may
tort;
for
re
wife
sue husband
right;
question of
like
whether husband has
served
(298
(1941),
old
66
53,
S cotv old S cotv
68 SD
NW
v.
ju
272), “a civil action maintainable in this
266,
damages
and wife for
between husband
risdiction
for
by
against
personal
tort committed
one
(1920),
45,
114
47
v. Prosser
other”; Prosser
SC
(102
788),
by
“by a
787,
SE
liberal and
strict
procedure was
the code of
enacted
construction
against
remedy
give
every
to a wife
her husband for
might
any wrong
at
Penton
hands”;
suffer
his
she
483),
(135
(1931),
481,
282,
223 Ala
285
So
v. Penton
an action
against
“may
the wife
be maintained
simple negligence”;
for
actionable
the husband
his
Katzenberg Katzenberg (1931),
(37
v.
Wash
immunity
general
doctrine,
discussion
critical of
holding
availability
to
but court limits
of suit
alleged
by
case of “an
intentional tort committed
spouse against
during
pendency
one
the other
previously
proceedings
initiated divorce
when the
parties
legally separated”;
Caffey
are
Gremillion v.
(La App 1954),
2d
while
71 So
wife could not
during marriage,
sue husband
she could do
during marriage
so after divorce for tort committed
376 Mich Opinion
by Soukis,
separation;
Reagan
legal
Bedell
after
v.
but
(192
24),
(1963), Me 292
A2d
be
suits
forbids
permits
tween husband and wife but
defendant in
implead
by
suit
wife to
husband for contribution,
injuries having been
wife’s
received-
automobile
conceivably
accident wherein
both husband and de
negligent; Taylor
(1954),
fendant
Utah
ages
v.
were
Patten
(275
696),
2d
wife
P2d
recover dam
injuries
intentionally
for
from husband
in
upon,
during
period
interlocutory
flicted
vorce action.
di
(3)
permit
antenuptial
Those which
for
suits
(Ky, 1953),
torts: Brown v. Gosser
(4) hut wives Those which (1923), v. Roberts Roberts husbands to sue: 1479), (118 29 ALR and Scholtens 566 SE 185 NC (52 350); (1949), 149 230 NC SE2d v. Scholtens (209 (1926), 48 191 Wis NW Pierce Wait v. 276), Accident Fire & Fehr v. General and ALR Corp. (1944), 246 NW2d Wis As sur. Life 1402). ALR 787, 160 spousal (5) inter tort are au- York, In suits New not if the defendant is in- statute, but thorized policy so states.16 unless sured
# [*] [*] Harper passage (1956), Torts James, This representative scholarly pp con- 645, 646, is subject on the of the doctrine of sensus immunity: denying recovery applied “The rule been has literally blindly many cases where the reason possibly apply for the rule could not inasmuch as disrupt there harmony no was home and no domestic typical to disturb. The divorce cases are examples. too, So, are cases which the wife’s wrongful administrator to recover for seeks her applied death. rule has been the husband and where the This even when was her murdered wife wife’s administrator
sued the husband’s adminis- trator. strong probably minority increasing “But permits
view the wife to sue husband for such especially they wrongs. harms, if are intended A permitted few liberal decisions have the action for negligence. the husband’s This result seems emi- nently metaphysical practical desirable. The prevented reasons at actions common longer applicable. danger law are no to the Law, Law, See § 3-313; 23A subd McKinney’s and 27 (3). McKinney’s Consol Laws of Consol Laws NY, General NY, Obligations Insurance *33 by Souris, Opinion J. tranquillity in the
family here, as case peace and parent, against has been his an infant of suits policy over-emphasized. and ordi- grossly Sound right of wife to re- nary commend fairness her in interests invasions for tortious cover might personality much While as her husband. by the for a an action husband favor be said person by he not have wife, did his to his harm pur- and no common statutes action at law an rights port enlarge But the his wife. his is liable a married woman under statutes interpreted likely generally are not her tort for liability husband, immune to her to make accompany him the converse no doubt to rule should bodily liability part inflicted on harm his by him on her.” Prosser, A Handbook of the also, Law Torts See, McCurdy, (3d 1964), pp Between 879-885; ed Torts 43 L Rev Relation, Domestic Harv 1030 Persons Injury (1930); McCurdy, Personal Between Torts Spouses, (1959); 4 L Rev 303 Alberts Villanova Recognition of New Interests in the worth, Law (1922); 10 Cal L Rev Price Torts, Morris, 461 What Marriage?, Haglund, 911; 1946 Insurance Tort LJ George 27 Wife, Actions Between Husband and Farage, Recovery (1939); town LJ 697 and 893 Spouses, (1935); 10 Between Ind LJ 290 Torts Family, 9 Sanford, Torts Within the Personal (1956); Comment, Vanderbilt L Rev 823 23 Yale (1924); (1914); Comment, Yale LJ 613 33 315 LJ (1931); L Comment, Comment, 26 Ill 88 Tort Rev Liability Suggested Family Area — A Within Approach, (1956); 34 51 Rev 610 Notes: NW UL (1921); (1935); L 48 L Harv Rev 676 Harv Rev 849 (1926); L L Rev 895 35 Colum Rev 781 26 Colum (1935); (1948); 48 L Rev 961 Yale Colum LJ (1918); (1949); NCL Rev 109 Cornell Hosier Opinion by Sotjris, J. (1937); (1926); L LQ 24 Mich Rev 618 37 Wash (1962). L Rev 233 J., T. C. M. Kavanagh, Dethmers Adams, Souris, J.
JJ., concurred with (concurring reversal). I concur in Smith, the results reached express by Justice Theodore Souris my herein some limits to concurrence. sweep, reasoning
In its broad Justice opinion goes beyond well the necessities of Souris’ Although the 3 cases. situations, some *34 judicial good craftsmanship, I be this kind it doubt its value in gate-opening
of In decision. this situation, of a effect broad has come-all” in- “come-one, opinion likely vitation. The will be construed as erasing, analysis, interspousal in the ultimate im- munity every type in conceivable of tort from case, grossest intentional tort down to the chronic present many marriages. in irritants be ing I wish to concurring then, understood, in the hold- opinion, voting I Justice Souris’ am not for the abolition all
Michigan, specific but for the result the cases us. before special brings
Each of the 3 eases some merit why apply. the old rule should not In Smith v. King, marriage longer where the no exists reason of the car accident which fatal was to the husband seriously injured and which the wife, the old rea- soning persuasive. plaintiff not In case, alleges multiple that she received fractures, severe injuries, permanent internal and external dam- age by reason her deceased husband’s “wilful and wanton misconduct.” The misconduct consisted in part upon driving the husband’s insistence
'574 Smith, Opinion by “nonstop”, at least without Michigan to California alleged failed to heed he proper also It is rest. operated warnings, the car assistance refused opinion my speed. dangerous It is and unlawful at a presenting ought barred from that she recovering allegations proofs support of her prove damages her case. The if she should inapplicable public policy in this situation reason is marriage to no defend. there is because Carney, brought recover Mosier suit was In only* damages the loss on children behalf allegedly accident, in a car who died of their mother gross negligence the father and caused negligence concurring of another driver. If proved, denying reason he I no such can see damages they compensable would the children negligent if the had been receive driver otherwise stranger. complained injury Mosher, to Dood v. As marriage allegedly resulted-in before occurred plaintiff gainful employ- losing months from six parties that the were married The fact about ment. injury extinguish year after should not although right fully I and recover. to sue And rec- sharply ognize collusion that the likelihood of rises identity interests, is an of economic am if there I *35 the fact finder will scrutinize claims that certain plaintiff where and defendant are husband with care identity wife and have substantial economic interest. sympathy I with
Albeit, am the basic tone of opinion Nelly who the of Justice thinks that this liability could branch of be better new delin- say the wife’s [*] so, I wrongful do specifically. not death, although perceive death aet, could the recover legislature husband, if his who should amend the is a wrong benefieiary contributed act under to to Hosier Opinion Smith, differ, however, I his legislature. eated there are ramifica- many so that because conclusion in the off nothing better doing be we would tions question the whole and leaving us before cases or may course, legislature Of legislature. options; not have the same do not act. Courts may the parties. between judgments render must they There- to committees. assigned not be Cases decision, call us for here, upon parties when, as fore, compe- within jurisdictional our matter being decide. we must tence, facets to problem, sev- many
Because statutes, it is my hope in existing resting eral of whole- again will receive benefit the public interaction between the constructive positive, some, branch. If legislative and the inter- branch judicial is to be broadened intrafamily liability spousal of the in- expanded appreciation with keeping members of a family, particularly dividuality will children, number of statutes have wives is, course, priority question re-examined. suits be intrafamily permitted? extent shall to what If so, kind, for what only? intentional torts For both? Is any minor? Or for distinction or gross duties out of arising strictly made between to be relationship and duties family marriage to another? person from one Shall generally owed are still a viable parties if the be barred suit The answers these and relationship? family dictate to what extent con- will questions similar are in other adjustments necessary temporaneous aspects family related touching statutes law. although somewhat less today, decide
What we earth It shaking. step, a modest first than like other —the into a realm no beginning is a sound *36 \ 376 ! Opinion by J. Smith, family. proceed It best that we from here with caution. (dissenting). appeals Three J. have been Kelly,
presented involving to this Court different facts, things (1) They have two all three common: but spouse’s right on one claim are based to recover damages spouse negligent injury; from another (2) require Reversal of the trial courts will changing present interspousal law change making retroactive.
Justice Souris has called attention that four times interspousal held that an this Court has tort action could not be maintained at common law, but does legislative change not comment on law rule. the tory rights of the common- opinion Therefore, shall first review legislative granted enactments which have statu- prohibited by
to sue that were the com- mon law. statutory exception
The first to the common-law Michigan rule in legisla- occurred in 1855 when the provided: ture Act No 168 brought by “Actions married property, woman, in relation to her sole in the same manner if (Emphasis she were sup- unmarried.” plied.) phrase “in property” relation to her sole legislature made it clear gave right no a married woman to recovery sue her husband for damages injury resulting from an negligent tort. (PA
In
132),
legislature
1857, No
gave
rights
to a married
respect
woman certain
with
property by amending
husband’s
the statute,
and this Court construed this amendment in Band
v. Band field,
Am
writing 1915, a for unanimous provided, § a against any 6, which “Whenever 12, ch 314, No to, or arise accrue action shall cause married in or be sued woman, she sue give if did not sole,”1 as she were manner same damages right to from de- plaintiff recover wife husband injuries received his for she fendant construing stating (p 148) negligence, derogation pre- law it of the common had the is statute sumed legislature common in mind law and, therefore, the statute stat- when it enacted ute along provisions of the will be read with that the statute under consideration law; common only of action “shall authorized suits when cause the common law accrue to” her and because under in tort can or did “accrue” to no her and because of action cause statutory there no authorization is express Michigan, such cause of action either implied, could not maintain action in she or tort. provision relative to women contained married reading: judicature act, “Actions
in the revised may brought woman, a married rephrasing unmarried,”2 if of the were is she change previous previous did statute. It not given immunity not doctrine; effect, retroactive was appeals apply present not to the where could and all three previous claimed torts occurred ef- its enactment. fective date of justifies
Nothing in the common law statutes appellants’ action, does cause and Justice Souris provisions of the common call attention to law Rev § PA CL 27 A.2001]). 1915, § No 12357; CL 1948, (CLS § 612.6 (Stat § 600.2001 Ann § 27.658). [Stat Ann 1962
578' 376
Dissenting Opinion by Kelly, ór the states: frankly statutes to come to Ms conclusion, but appendix “WMle most of the cases cited in tbe rejected pur- wMcli have port the common-law doctrine holdings upon to base their so-called married many opin- women’s acts, evident ions that the courts had concluded that the longer any logic, defense no or had valid fact, basis policy. virtually The fact that the same statu- tory language by subject interpretations varying suggests strongly these courts that the actual many reappraisal basis of their decisions ais rejection of the common law and its no because longer applicable to the facts of modern civilization. pursue forthright shall “We a more course in our *38 disposition of the at cases bar. Since the doctrine interspousal of immunity tort is a creation of the common law and since doctrine has never been duty codified in this State, it is our to re-examine [the it immunity] justice, interspousal common-law doctrine of tort necessary and, if continuing to avoid in- change it.” taking In this dissent amI issue with Justice right, Souris’ statement re this Court’s as to the interspousal immunity, common-lawdoctrine necessary continuing injustice, to “if to avoid change agreeing disagreeing it,” nor am I with changes my Brother recommends which I feel survey thoughtful confident followed extensive consideration. Conceding possesses right, that this Court I question injustice
believe that the as to whether being perpetrated and, so, if to what extent, should by Michigan’s be legislators answered rather by majority than a eight. sup of our Court I find port to this conclusion in the amicus curiae brief many which states “that because of the ramifica abrogation tions which the of the rule of Hosier Dissenting Opinion Kelly, upon society as a whole immunity have would legislature’s left to the should matter it is Kennedy (Quotation sustained determination.” v. [102 595]; A2d Smith Camp 14 NJ [1954], [287 Braw 572], P2d 205 Or [1955], Smith ner v. tiorari cer [Mo SW2d 1959], 327 Brawner [80 L4 ed 2d Ct S 361 US denied 546].) appeals bring into these submitted
The briefs “many phase ramifications” one focus extending contemplates opinion as one differences Michigan time for the first doctrine the into of torts. the field appellant3 states: One liability prevents im- presence insurance “The tranquillity. the advent With
pairment of domestic liability cases there seems in automobile insurance immunity in the doctrine to continue no reason retaining law The modern suit it. cases still those spouse.” company, not the the insurance following quotes appellant4 footnote
Another ALR2d 649: from 43 permit- with “In the New York statute connection injuries, personal
ting a wife to sue her husband for that at the time, be noted same the New York companion providing legislature enacted statute policy that no insurance theretofore or thereafter against any be deemed to insure lia- issued should *39 injuries bility spouse an insured his of to or her injury property spouse, to or for of his unless express provision for such insurance was included policy,” in the pro- adequately
and concludes: “This would seem to against tect what some of the courts have feared [3] [4] Mosier Dood v. Mosher. 376 Mich by Kelly, Dissenting Opinion com- to an insurance a ‘raid’ amount
would pany actions.” amicus curiae brief states: One being permitting reason for not a than “Rather availability of insur that the suit, it is submitted immunity. abolishing favor of a reason ance is objection strongest v. Band In Band interspousal field field they appeared relation man tort actions ‘destroy and wife.’ would sacred by Harper pointed But, at 82. out p ‘where there James, Torts, 8.11, 649, Law protection, there menace either to is no is insurance family discipline ” peace.’ domestic or to disagrees an- other brief amicus curiae permit that “to actions because swers encourage presence of collusive insurance quotes supreme Oregon from the suits,” opinion in Smith, 286, 310, court Smith Or 583), P2d as follows: minority rulings brush the risk of aside col- “The simple and wife asser- husband lusion tion that to deal with collusive know how courts risk of collusive it is But obvious suits. action plaintiff parties and de- increases when relationship. The risk of to are confidential is fendant enough ordinarily inducement financial loss sturdy encourage ant defense. Remove from defend- hope and substitute the covert the risk loss give profit a situation arises which should us * * * jury system pause. revere the We as the liberty, individual but are also real- we bulwark Kentucky juries and we know that as a ists, are, generous once mountaineer said—‘tolerable with money,’ especially people’s when the other of insurance aroma permeates the courtroom.” Michigan’s interspousal policy place does “minority” empha- column States, as is opposing brief in the amicus sized curiae reversals, *40 581 Mosier Dissenting Opinion by Kelly, J. every jurisdictions “Two out of three which states: spouses country between to recover bar suits in this injuries negligence. damages Note, for caused (1964).” LR 13 Drake regard antenuptial true torts. In our This is appeal, county present Dood Kent Mosher Circuit point Judge Stuart Hoffiusmade this when he stated: having Michigan join for “I see no reason minority of the States which have ruled question. against spouse bring If one cannot a tort suit spouse occurring the other for an event after marriage, public policy prevent the same should arising prior marriage. action for torts The com- prevail.” mon-law rule must still Michigan join minority That will if this Court county judge reverses the Kent closed circuit further dis Maryland the recent 1961 decision5involv spouse’s ing right spouse antenuptial to sue a tort, which states: only “The feature of the instant case that has not specifically passed upon by prior been is that the our decisions alleged wrong occurred before the mar- riage parties. generally juris- It is held, deny spouse right dictions to sue the other spouse personal injuries, disability that the ob- notwithstanding
tains,
wrong
for which
recovery
sought
premarital
awas
one. Dean
Prosser states that some two-thirds of the courts
which have
emancipatory
considered the
statutes
have refused and still refuse, to construe the same
so as to alter the common-law rule; that it is the
prevailing
spouse
view that
neither
maintain
an action
negligent injuries;
the other for
though
and this is true even
the tort was committed
marriage
before the
parties.
For a collection
341, 342).
Hudson v.
Hudson,
Maryland 521, 526,
A2d
ALR2d where the was wrong action even such an maintain brought, marriage. before action and committed, wife could at not, that a little doubt “There can be personal injuries law, her husband common sue the rule marriage, person her before upon inflicted extinguished marriage the usually stated being her Wife, and CJS, 41 Husband of action. right Wife, and and 589; § Husband Jur, 27 Am 396; § definitely have and As we so there cited. cases 56 nor stat- any that neither other section flatly held attention has removed ute that has been called our disability, the impelled we to follow spousal feel our majority the previous juris- decisions (and great hold the wife’s elsewhere) cause dictions marriage was to the upon of action extinguished the defendant, trial court was and, consequently, the declara- correct in demurrer to her sustaining (Emphasis supplied.) tion.” recently was also antenuptial question precise
This Pennsylvania supreme court,7 the before (1962) the wife the to maintain her court, right denying the the action, commented common upon antenuptial as follows: statutes Pennsylvania law and neither a husband nor wife could law “At common injuries due torts committed be- the other for sue marriage. This was based their during fore or that a husband wife are upon legal premise Prosser on Torts entity. See, (2d one one person, now based social rule, This ed), (1955). 670 public policy (emphasis is reasons and supplied), majority of in jurisdictions in a great still followed 632; Pennsyl- See 43 ALR2d States. United Husband and Wife 82. Encyclopedia, Law § vania adhered to always rule has been strictly The same Meisel v. Referenee Little, to Annotated Pa Code Maryland (1957), A2d 772, 773). art § Hosier Kelly, Dissenting Opinion Pennsyl- However, here in this Commonwealth. statutory and decisional.” it is both vania, Judge county reversing Circuit Donn Genesee In Carney, my was con Brother in Mosier v. Parker, D. wrongful provisions death fronted with provides: act, injuries person re- or death of “Whenever wrongful act,
sulting neglect caused shall he death, neglect default act, or default, and ensued) (if not have en- had death as would such injured party an action to maintain titled the respect damages, thereof, then and recover * * * person have every been would who case, ensued, be liable to shall if death had liable, (Stat damages.” 691.581 CL an action 27.711). Supp § *42 Ann 1959 Cum my Calling con- Brother construction, a liberal merely plaintiff not “be defeated should cludes had in this Court indicated earlier cases because from would have barred been decedent survived she suing quotes from a Minnesota husband,” supreme to his conclusion. court decision8 sustain legislature tort overlooked the
If our wrongful immunity provision when it enacted the by legis- that error should be corrected act, death a than for this Court to come to such lature rather try a and then to eliminate such error conclusion liberal construction. disagreement
Solely that there to the to show is quoted by my Brother to Minnesota decision his conclusion sustain I in call attention to the recent Mosier, 1964 Delaware decision:9 summary, plaintiff, recognized by “In therefore, as immunity in
the rule of from suit is well this settled 8 Poepping Saunders Lindemann Sill (1964), (1964), — Del 268 Minn 30 —, — A2d (127 807, 810). NW2d 512). Kelly, Dissenting Opinion prevented jurisdiction would have Mrs. Loat personal maintaining injury a had action, she prevent her lived, and does administrator from main- taining a action. Plaintiff has survival been unable any express language wrongful death show legislative a statute which intention to indicates abrogate immunity rule the common-law from suit. supports opposite fact,
In the statute conclu- ability presupposes sion, since the statute brought personal injury to have decedent action had he lived.” importance recognizing the Court,
This of this appeal three-case quested from three counties, different re- negligence Michigan that the section of the response, Bar “filea brief amicus State curiae.” The public disclosing throughout survey policy an extensive Nation, has rendered valuable serv- join express- ice to this Court I Justice Souris ing our sincere thanks. request The fact that our for “a brief amicus curiae” resulted two amicus briefs curiae is im- portant deciding whether the doctrine of inter- spousal applicable longer “no to the my facts modern civilization,” whether, duty Brother “it states, is our it and, re-examine necessary continuing injustice, change if to avoid it.”
My by stating: Brother refers to two briefs present thought “Indicative of the ambivalence of question the fact that two were in briefs by stating fact the bar.” I add to that submitted *43 depth importance subject width, and of the anything, and different matter, views if what, as to by Michigan, should be done and whom for is dis- by by closed two these briefs as illustrated the fol- lowing : recommending
The brief “that the doctrine prevents suing husband and wife from one another Hosier Kelly, by Dissenting Opinion injuries personal damages inflicted to recover retroactively,” “for the calls overruled, be the other wayward in- branch, of root extermination, irrespective immunity of the terspousal doctrine — “The that: over- and states variations,” factual whelming rejects authority scholarly weight of immunity; interspousal the current trend doctrine rejects authority it.” judicial also change “no that concludes brief curiae amicus immunity (should) interspousal rule of in “Contrary that: to the Court,” states made interspousal charge the rule days over from fossil carried moss-encrusted sup- the modern decisions Blackstone, Coke range point of port time 1927to rule July recently reasons have as Several as support given of the rule. The the courts been majority abrogate hold that to the rule the courts disharmony home, into the the fam- would introduce ily disrupt peace thereby unit, and domestic accord.” days emphasize that we leave the of “Coke
To days and enter into of “modern and Blackstone” legislatures agree, cannot State I call civilization” legislative large action the two attention important of New York and States Illinois. York
In New suits are authorized may by statute, but no collections be made from an spouse policy defendant unless the insured of insur- provisions ance contains to so insure.10 legislature, supreme In Illinois the after the court may in 1953held that in all cases married woman subsequently if were unmarried, sue as she added legislative pro the Illinois married women’s act the vision “that neither husband nor wife sue the Law, Consolidated Laws of § 3-313, and vol Insurance New York, Law, vol 1S7, 23A, subd 3. General Obligations *44 376 Kelly, Dissenting Opinion J. during person committed to a tort for
other coverture.” regard interspousal to torts changes Legislative the future not to undoubtedly apply would contrast to the sharp be and would past, advocating today, Brother is which in law my change automobile accidents occurring to two apply would 4, 1960,13 22, 1958,12 July respectively, August on on a by stepping sustained nail that injury for 1982.14 May 16, on occurred the amicus curiae re- not grant Brother does My “extermination, branch, root and for quest interspousal immunity doctrine,” but at wayward we opinion of his states: “What have the conclusion the doctrine of concerning interspousal here said must be considered in immunity light tort these fact circumstances.” same not,
The recommendation impact does lessen the that appreciably impact would my opinion, a complete caused extermination be- have been to all It is notice that the tort (a) immunity cause: existed since became a Michigan doctrine has vulnerable attack and is now Court State doctrine it fit; can as sees change It an announcement this Court will con- (b) claimed appeals injury sider all to the facts of each case, only they according they in the but as have arisen in the future, arise past. Kent, Oakland,
The and Genesee circuit judges entered the orders of dismissal properly applied who the law and should not be reversed. should be affirmed. Costs to appellees. orders
11 12 Laws Mosier Dood Mosher. Smith v. Illinois, King. 1953, p 437, (Ill Anno Stat, c § 1). v. Carnet. Hosier Dissenting Opinion J. Black, (dissenting). Black, some always introduces precedent “Overruling necessity unfortunate. and the confusion utter on our books keeping nothing is as *45 it
But full faith and will give which we ourselves ances I shall abide us. pleases outcome only if the credit Carolina, v. North [Williams Williams Case by the 279, 143 ALR 207, 1273) ] 87 L ed S Ct (63 287 317 US that reason books, off our and for it is taken until herein.” concur the decision Jackson, Mr. writ are those of Justice
The words Hunt, 430, 320 Magnolia v. US Petroleum Co. ten in 413). I L 150 ALR 208, 149, ed Ct 88 447 S with adherence to them, my mean to apply along 142; Harvey, 239 Harvey v. Mich right wrong Kircher, Riser, 240 and Kircher v. 402; Mich Riser matter whether this turns opinion 288 Mich no out one of dissent or one of concurrence. to be past firsthand by experience during
Benefited handing now 3 4 as of with years, culminating Fiting, Mich I not of Currie v. would down open either the or silential overrule even consider unanimous, ment since ac matured, long and interpretation long and of a applied cepted judicial statute, even vie standing though according my — from the wrong w—such was interpretation beginning. To to judicial do so amounts amendment of a simply that statute, barred section oath — of article outright 3 of Constitution —as all usurpation power. And the lawmaking it iniquity judicial practice wretched that leaves legislature position where knows are legal what words and with phrases employable and assurance as that dependable safety body goes about writing debating statutes and amendments of statutes. Mich Black, Dissenting Opinion by judged writing what to affirm was Justice Kelly, put still an cases, these three of has for all below lurking dangers finger overrulements on other explicitly within riveted words.1 are not confined any further the more convinced am in turn
I
overrulings
Court, whether the decision or
exclusively with
deal
overruled
to be
decisions
sharply
opin
dissident
or consist
law,
common
construing
statute,
an unamended
or consist
ions
“themselves are
turmoil
conflict”
which
decisions
(Sh
Michigan
eppard
Bank,
National
602),
express declaration be
573,
effective for the
should
only,
future
as was
done
made
(Sunburst
Refining
case
Oil
Co. v.
Montana
927])
[7
Co.,
R.
These cases Smith, and Dood duplicate of what became standoffs Burns v. Van Paragon Bridge Laan, Mich 485 and acre v. Half 35-year-old Co., & Steel 368Mich 366. In acre a Half having was found five statute of us as been con applied by way—an strued and the Court one inde way—on separate, fensible three consistent, yet occasions; unanimous four of us found that such application firmly construction and was rooted in going that statute. As for the at bar, cases back *47 interpretation Harvey’s application in 1927 of presently applicable statutory provisions then and (CL 1915, §§ 12356,12357; 1948, CL §§ 612.5,612.6 27.658]), provisions [Stat §§ Ann 27.657, 2 Chicago-Kent LR 44.—Reporter. 376 Mich 532.
Dissenting Opinion by Black, previous applications so far all have their barred ago long present find that our Court suits, three we unanimously, provisions, as an intendment read such of legislature tort actions not the maintainable. that (by 1927, be In the meantime PA No 242) legislature again by No 1943, 389 and ordained that “All PA general in this laws force compiled “without al be collected and State” should compilation duly teration,” and directed that such be published. being That was into done, and so came Compiled Compiled Laws of 1929 and the Laws specially cogent this not Is evidence, ex years tending respective compila over the since the legislative tions of 1929 and of calculated acceptance of said sections 612.6, 612.5and as those applied by sections were viewed and and since the Harvey date was handed down? only above not the record evidence of im
plied legislative approval interpreta of this Court’s application tion and made in ways the cited two sections—as —of Harvey, Riser, Bearing and Kircher. al rights in mind that the instant of action arose they prior —if arose at to the effective date of all— judicature (CLS the revised § act 1961, 600.9911 [Stat § 27 A.9911]), Ann 1962 Rev we find the they cited two sections remained unamended until expressly repealed by (CLS were § act [Stat 27 A.9901]). § 600.9901 same act the Ann 1962 By Rev following section being new came into (CLS § [Stat 600.2001 Ann 1962 Rev 27 A-.2001]): brought by
“Actions a mar- ried woman ifas she were unmarried.”; right Carney, King, and the accrued of defendants strength and Mosher, suits, to defend these on of. interpreted applied 612.5and 612.6, sections was expressly preserved. express preserva- For such *48 591 Mosier, v. Dissenting Opinion by Black, J-. tion, see (Stat CLS 600.9905 Ann 1961, § 1962 Rev 27A.9905). § legislative acquiescence
The assembled evidence legislative of affirmative in, and acceptance of, which had been placed construction on sections said and 612.6 the 1920’s during 612.5 and 1930’s is quite as which was in strong recounted acre. as Half in stronger, It is one The respect. error of the three earlier decisions considered in the Case Halfacre Blanton, and (Boshaw, Walker), cited in that case at that no gross attempted was so one seriously defend it. Yet four of us found that the legisla since acquiesced ture had long and had accepted construction such and application.
It
is immaterial now that Harvey,
Riser,
wrong.
Kircher
have been
That
sharply
is
“the
debatable considering
present ambivalence of
thought upon this question,”
ambivalence Jus-
tice Souris
has so
examined in
ably
his brief
important
reversal. What
sanctity of
and the
legislative process
fact of years
accept-
ance,
legislature,
Harvey, Riser,
by
what
became—years
and Kircher
ago—an integral part
612.5
said sections
and 612.6.
One may agree,
strength
Justice Souris’
well
view of
reasoned 1965
these old statutory pro
visions distinguished
judicial
view thereof as
again
taken in
(and
1939),
statutory
bar—as found
Court
Harvey, Riser, and
Kircher—of
suits for tort has become
both unreasonable
and outmoded.
legislature
may—I
“may”—have
say
come to just
that conclu
in 1961
sion
when
repealed
provisions and
enacted
2001 (CLS
said section
1961, 600.2001
[Stat
§27A.2001]).
Ann 1962 Rev
But again,
pointed
Newberry Co.,
3 Boshaw v. J. J.
412);
I have well as concurrent as by express allegation, was the action which, brought by pursuant administrator to and on Mosier authority Michigan’s 1 of the exclusive wrongful section (CL 691.581). § For 1948, death statute 6 Rep Ann [4] 6 Paragraph 3 of “Plaintiff Bandfield CL 550).—Reporter. 27.711) brings § commonly 612.6 Bandfield, administrator this action (Stat known Ann pursuant as 'the death act.’ Mich [80] Hosier’s declaration reads: § 27.658) to CL .—Reporter. LRA ” § 691.581 Am (Stat St Mosier v. Carnet. Dissenting by Black, Opinion century conditioned that section has more than right thereby upon special action created cause damages as sue and recover of the decedent against wrongdoer had “if death not ensued.” Carney By was not “liable,” 1 Mr. said section Carney Mrs. could suit liable, now" not unless she her husband had maintained have been so since The statute has said ever survived. today. says reasonably
(No 38) I am sure so every here knows that. So Justice seated Judge of admin order to reverse Parker’s dismissal must amend suit this Court said istrator Hosier’s pro August tunc nunc 612.6, 612.5and sections injured), (the Carney fatally was date Mrs. 21, 1958 something provide that the two sections mean they continuously meant, what have on other than the judicial legislative record, between the date Harvey down in and the effective was handed legislature, repeal, date of said sections 612.5 612.6.7 *50 Fiting, supra, oppose in I nunc
As written Currie v. pro judicial of And amendment statutes. 612.6, tunc amendment sections 612.5 and said two made now order the Court reverse judgments just below, of the three is too much of a power swig by delicately this intoxicant more Nearly years member the Court. seven ordered special effect like made for that, retroactive bene plaintiffs spells at bar, fit two invidious discrimi subject given passing more than nation; a was in Williams, attention one us 364 at 290. Mich
Conclusion. if there error, This Court’s error in unani- was Harvey, Riser, Kircher, ac- mous and been has § 600.9911 [7] The effective date [Stat Ann 1962 Rev of such repeal § 27 A.9911]). was January 1, [1963] (CLS 1961, 594 376 Black, Opinion by Dissenting legislature. accepted That makes
quiescently plaintiffs all mean for and 612.6 sections 612.5 said plaintiffs Harvey, they Riser, meant what at bar what those meant to sections likewise Kircher; years during legislature 6, all between June down) Harvey (the handed Janu- was date 1927 judica- (the ary of effect of revised date 1, (Stat § [CLS Ann Rev 600.9911 act ture given 27A.9911)]). solemn word was The Court’s by Harvey, profession Riser, and Kircher. to the upon, Trustingly now it is sullied. relied legislature enacted, what the It not much so Harvey, prior Kircher, that Riser, to release of really judicial process. now the What counts should control is that which the Court told us meant; legislature 612.5 said sections and 612.6 years legislative followed concurrence legislature, supposedly in therewith. The exclusive charge policies enacting of our and of State amending policies, laws best suited those steadily changing refrained the two sections presently alleged after all until three torts as had been committed. That fact calls for affirmance of respective judgments as entered below.
Dissenting Mahnich v. Co., Southern S. S. 561), L ed Mr. S Ct US Justice appropriate prescient an as well Roberts wrote expressed conclusion for views as a conclu above; ample support which—now—finds sion ink-fresh supra: Walker, Linkletter v. may grow changing the law
“Of course to meet con- I do ditions. not advocate slavish adherence to au- thority require where new conditions new rules of tendency conduct. But not such a case. *51 disregard precedents in the decision of cases like present strong has become so in this court of late my consistency as, view, to shake confidencein the of decision and leave the courts below on an un- Mosier DissentingOpinion by Black, difficulty any of doubt and without con- charted sea yesterday good was will what said hold that fidence grows indeed a modern instance tomorrow, unless of members of this court to make a custom into public change aof of views and to announcement they change will their on votes the same indicate question when another case comes before the court. predicament might, obviate extent, some This public and the courts, bar, lower find in which the themselves.” opinion
My is that the considered Constitution requires (art Michigan this Court re- 3, 2)§ responsibility liability legislating for tort frain alleged against Carney defendant in No. 50142, the defendants in Nos. 50360 and 50410. an affirm, I therefore vote to without award of costs. Supplement (November 12, 1965): catalogued by history of cases,
The internal these beginning date and event from the of our considera- supplement, writing tion of this to the will describe pretty position well the tenterhooked into which present opinions profession will thrust the and the Michigan. judges Now that subordinate court history. January 7,
These cases came to final submission foregoing opin- submitted his Justice Souris 1965. February Kelly ion for reversal Justice 1965. 24, opinion My above to affirm wrote as June 1965. July was turned in affirmance, above, 1965. July Smith wrote to That Justice affirm signed day opinions the Court resulted equal Only by an affirmance division of the Court. the automatic effect of an passed during resolution, intra-Court previous opinions month to arrest resulting prevented delivery vote, in a tie of the four signed opinions to the clerk’s office. *52 Black, Dissenting Opinion by J. advising find 1st that “I October Justice Smith, longer agreement my
that I am no in with former position,” present opinion, to wrote reverse. His up, position at summed arrives this of certain uncer- tainty : reasoning sweep, the in “In' broad Justice its goes beyond opinion well the necessities of Souris’ may Although in some situations, this the 3 cases. craftsmanship, judicial good I doubt its value in
be gate-opening In situation, kind of decision. this come-one, it has the effect of broad come-all’ invi likely opinion will be construed as tation. analysis, erasing, interspousal in im the ultimate munity every type conceivable of tort case, from grossest intentional tort the irritants down to the chronic many present marriages. to I wish it concurring understood, then, that in in the hold opinion, ing voting I am of Justice Souris’ not for the of all abolition gan, tort Michi specific but for the result the cases liefore us.” Turning now to Justice O’Hara. He has written for these under date of cases, October 1965: prepared abrogate judicially “I am not all inter- spousal immunity. agree I with Mr. Justice Kelly’s expressed view that this whole sensitive area legislative would be better left to determination. question presented judicial is However, now I determination and do not feel rest I legislative change inaction because of a basic social that has eventuated since the doctrine evolved in our State.” having
Even the devil, determined to in on move Michigan purpose the courts of for the of stimulation litigation and maintenance of honest or dishonest job family, between of a members could do no better sprout than that which due is from sum of our opinions quinqué. having The Court, determined to majority reverse for reasons a of the Justices will Mosier Opinion Dissenting by Black, flood, to the out of which indorse, committed cannot If action the Court is majority swim. bar, just for at ready repudiate, some cases Riser’s mature interpretation application 1948) at the (CL and, 612.5 and 612.6 present sections ready time, same to enact effec- retrospectively *53 1 wrongful tive amendment of section of the death 691.581) so as to make defend- (CL 1948, § statute damages,” an action for ant “liable to Carney he “liable” did not become damages simply in- fatally 1958 want of of his August 21, right wife “maintain dam- an action and recover jured then him, thereof” as unfore- ages respect against judicial action, involving “extensions” of such seen law, surely the common are due to confront mainly will Examples presently appear. us. Souris’ declaration consider Justice first let us
But an to the recently devotion and chosen picked of court, supreme the Minnesota of nounced views Nelson, v. 259 Minn 319 him in Shumway found Lindemann, 268 and Poepping (107 531), NW2d Minn think one 512). Whatever (127 NW2d 30 are clear they views, opposed those of more recent deci authority even of weight — — 807), Hill, Del A2d in Saunders v. sions F one Pledger DC), Supp (DC Jones v. 1 of our wrong It is that section forth. thing stands (see act 8 Lord Campbell’s act is a true death ful Adams, Hyatt 16 Mich that act of quotation Minnesota direct concession of the whereas by 193); State wrongful death statute court particular (“because of different distinctively statute death-by-wrongful-act of our language it, they placed upon [authorities construction assista are of but limited jurisdictions] from other nce”).9 See quotation is from the Halsbury’s Statutes Shumway Case, p England (2d ed), 323. p 4,-—Reporter. 376 Mich Opinion
Dissenting by Black, beginning, ago, very years From the section provided specific unmis- 1 of statute has our precision, liability takably that is, worded wrongful alleged against provided act him actor (if ensued) death had not “is such as would have party injured to maintain an entitled the action and damages, respect recover ais thereofThere presumption quasi-legal everyone seated here simple English; also can that he read knows Mrs. Carney could have maintained no action could have recovered and from him husband no damages wrongful alleged on account acts plaintiff by the administrator. Her husband wasn’t expired liable her before she in 1958; to the statute therefore under he isn’t liable to her administrator. Carney If Mr. liability to be made claimed, liable as by judicial have to
will be created amend- acting statute; an ment of nunc amendment the Court— pro vengeance tunc with a make effective —must years ago. than as more seven *54 In the cited Delaware case the court said all that (202 810): need be said further A2d 807, any express “Plaintiff has been unable to show language wrongful in death statute which indi- legislative abrogate a cates intention to the common- law rule of from In fact, suit. the statute supports opposite conclusion, since the statute presupposes ability of the decedent to have brought personal injury a action he had lived. We, opinion wrongful therefore, are of the that the death exception statute does not create an to the normal immunity from suit between husband and wife. If change public a is to be effected in the well-settled policy change State, of this such must be effected legislature and not court.”
The aforesaid of events evidence the more an pace majority of our new toward accelerated insou- Hosier Carnet. Dissenting Opinion by Black, statutory wholly amend- nneonstitntional eiant ments, post Consider this: ex all facto. writing in the ago Justice months O’Hara, Sis 457), found that the 440, 456, Mich Case Currie damages “acquiesced” a rule
legislature had Wycko’s opinion (361 majority Mich him in found opinion (then consequently, that that 331) and, Wycko, view)10 wrong must be followed. in his now less than five down, was handed Currie was when years legis years than five old. That makes less exactly just “acquiescence” one—not lative one— compare what is that, decision. With unanimous years ago Supreme Thirty-eight us. before unanimously, pres Michigan that a decided, Court ently applicable forbade suits statute (Harvey, 142). Mich Twice thereafter, for tort being occasion, unanimous each the Court on (Riser, 240 402; reaffirmed Mich forbiddance was 669). Kircher, 288 Mich said our Turn now to what Justice O’Hara about legislative presumptive subject: no- “The sword ways.” (Currie judicial both decisions cuts tice 456.) significant, respectfully suggest, I It at present my Brother wield of his abstains clay- metaphorical saber, It not must sword. ways. cut since it not both Now we see more, does judicial pronouncement only when a it that legislative cuts plaintiff acquiescence favors a in tort; legislative Thus ivas the doctrine of a defendant. acquiescence right Currie, and thus shunned leprosy. like now
indicate Mobile Mr. Justice as he continued to behold application lative “I can find no error 10Hardly acquiescence.” Homes, my agreement, Kelly two months the extant (Emphasis Mr. Justice Black. ago rule Wycko, 355: the Wycko was Justice *55 charge, supplied based wrote this for be reconsidered as O’IIaba, manifestly upon but by present My I write the concurrence in the Wilson principle separately suggested by writer.) v. Modern disturbed legis to Mich Dissenting Toy Opinion Black, interpret was called to when Court
Once, sought apply to statute, the ascertain Justices legislature respect the with to the the intention of though, specific problem Here, at hand. not one of writing willing reversal an to Brethren finding wrongful section nounce —take legislature for illustration —that death statute legislature it 1848, it met or the when met in when legislature 1939, when met in or intended enactment and re-enactment of section 1 said make the defendant “liable to an action for dam ages” regardless of whether that “act, defendant’s (if neglect default” is or is not such “as would ensued) injured party have death had entitled the damages.” an to maintain action and recover In deny these curious circumstances no one can that the plain duty legisla applicable ascertainment purpose, (Husted tive as of enactment time v. Con Company, syllabus 9), Power sumers 41; nonchalantly has been renounced. areWe told in stead that section 1 has become outmoded intervention of new conditions; hence that it should applied according new conditions rather enacting re-enacting than in accordance with the intent and 1939. Behold the retro by judicial active century-old order, amendment, aof provision. statutory opinions will our
Where
current
leave members of
profession,
they
and the clients
must advise?
quicksand
The answer
only
has to be—with
law
deluge
intra-family litigation
that is sure to
By
follow.
what Justice Smith
refers
as “this
gate-opening
kind of
decision,” have we not issued
coy suggestion
by Reggie duly
suit
in
having
Reggie’s
father, the
sured
latter
backed over
father-gifted now motor scooter, will now be enter
(Elias
tained
v. Collins,
This Court’s guidance people, precedentially, the of her Michigan, ascertaining prece- and of law of common dentially, purpose, for the same informative meanings legislatively intended of laws enacted strayed though, having legislative Now, branch. arrayed newly duties, from these overrulers of way no will have control Franken- Court they judge No are about to turn loose. dare stein intra-family liability say that this rule of shall new recoverable the maximal be limited as to amount liability insurance the defendant member amount judge carry. newly into write, No can such right proviso appears action, created York Justice has the New statute Kelly p ante, insurance, no referred, is, “no recov- Sadly though, they ery.” have votes when sufficient force the whole members of Court can here, 376 Dissenting Opinion Black, through profession Stygian with them to wander unpredictable large, legal golem at darkness, with an again personnel until the has come Court change. to decisive righteous goals
To attain its 'wholesomeliberal- sipped ism of law must be with the savored *57 salutary progressive care of moderation. When guzzled quantity, gulped legal however, lib- quickly habit-formiug intoxicant, eralism becomes a respected driving juristic some hitherto minds more and more extensional excesses until no there is nothing cure. left With but the doubtful value of by lawyers prospective estimation of of condition judicial overrulings, satiation and surfeit with there peninsular no now is reliable law in the No State. statute, however well mature, understood and con- tinuously applied, immune is from new and novel “interpretation,” outright or even from amendment by judicial guised order an act as of overrulement.11 involving No ing decision long unanimous some stand- though by statute, even handed down Cooley repudiation. Court, is safe from casual Indeed, this year’s frightening record of more and more motions (a) Justices to overrule unanimous decisions of superior Court, made men of renowned com- petence (b) once by judi- seated here, or to amend, long standing act, cial simply rewriting statutes they majority them so (c) accord with desire, simply part legislative process to take over a of the plea legislature from time to just time on that the busy legislate fully too effectively,12 proves Dwelling upon the shoals of lost Harvard forth as conference of Chief Justices joined 11 Looking back potentiality Such others at preeursive Professor Robert E. plea comes most public subtopic “Increasing legislatures over the of this helm, People confidence. Court’s intervening recently for Keeton, at Miami Beach this reforming law,” present Holbrook, from the brilliant institutional delivered months since Justice Adams hard-aport 373 Mich during Professor Keeton limitations toward course past the annual address summer. stands Hosier Carnet. Dissenting Opinion by Black, making liberalism is runaway train portsided with Michigan Court the law’s Supreme certainty” since cast aside. “quest long taught that everyone are still being Americans law; ignorance to know presumed listened to an law will never be excuse in the the land. All lawyers courts and judges too, as I have like But what presume, training. received are at the bar of standing justice, citizens the counsel them to do respectively, when representing there is law no to ascertain the way personal or profes guidance except conject sional surmise and what a bare majority appellate court, it swinging as does like Chaucer’s today wedercok, later on will say is? Slowly, by force of all these motions meddle with judicially dislikable statutes, we are over the outer door forging of this Court a warning much like that which Dickens depicted in Bleak House (Heritage edition, ch 17): p * * *
“This is the court of chancery; which so *58 finances, exhausts patience, courage, hope; so over- throws the brain and breaks the heart; that there is not an honourable man its among practitioners who would not give—who does not often warn- give—the position takes studied legislatures that State longer are no able to perform—fully tliat by is—the task which assigned constitution is them; that, to therefore, the courts pick up should perform and legislative slack. may Whatever one think generally of intriguing idea, I suggest it is Michigan. not for With our touted new “full-time and fully paid legislature,” any can there be excuse application hero of such any doctrinism? How event apply this Court it and yet avoid Michigan’s evasion of 130-year-old mandate to maintain separation due tripartite of her branches? See Justice v. Cooley’s grim People, Sutherland, reminder ex rel. Governor, 29 Mich 320; also section present article 3 of the Constitution of Michi- gan. Copies of Professor Keeton’s address were delivered to our mem- bership, in company glowing comment Chief Justice Kava- immediately following the Miami Beach conference. nagh, 13Robinson, Poems of (Cambridge Chaucer ed), Against Women Unconstant, 676.—Reporter. p 376 Mich
Dissenting Opinion Black, you, any wrong ing, that can be done rather ‘suffer ” here!’ than come hope today only Michigan’s that new insula- Court, her trial courts and this tor between Appeals is, that will for a time buffer the Court legislation portents all these 1965 acts of ominous judicial judges all, branch. After of sub- sworn follow ordinate courts are to and our mature they guess stand, decisions settled as to whether reject accept, which ones will this Court begets sanguinary errantly time that trust our head- strong perceive will later sooner or effect of what they justice equal great precept, done, have Nothing, absolutely nothing,
under law. continuity constitutionally more vital to of America’s experiment government by continuant law than stability and, the ing therefore, common understand- law
of the written; all law are citizens required respect observe, learn, and conform to. pity appellate judges,
It is a court detached as they evidentiary become from the our realities of experienced courts, trial do not listen more trial lawyers judges. and trial While we deliberated long pending Judge these cases An Circuit David sobering painstaking derson delivered a as well as “Interspousal Immunity,” titled address, before the meeting Negligence annual Section, State Bar May at convened Mackinac Island 30, 31, 1965.14 Judge worthy-of-thought Anderson’s conclusion was this: necessity developing imposing
“The re- recognized by strictions is the advocates of inter- spousal liability. development But the re- of by judicial long strictions decision time is a process. consuming appears you It to me—and if *59 Michigan, State Bar of Negligence Sept. Bulletin, Section No 32.—Reporter. 24, 1965, pp Mosier Dissenting by Black, Opinion my go and what talk was tell someone to home want appears me that the to conclusion field this it—it about, is change inescapable must and should if is to come through legislative enact- come it ment. public policy of time, at one Here, supposedly body determined could be State duty power it, and determine with the so vested necessary conditions restrictions could and the and imposed.” suggest today’s requisite that if I deference,
With Harvey, majority hotspurred overruling toward Riser, Kircher, and overrulement should be its act of way unfair let effected to avoid most as a taught obey apply law of who are and down those their ac written, as it to advise clients stands cording to thus written. The unconditional word law Harvey, pledged Court was on record Riser, and Eircher. for the defend Did not counsel Harvey, Carney rightly rely King ants Kircher, Riser, and in 1961 Mr. back when Carney King they Mrs. were sued? Did rightly rely, appeals later were taken, when these on the three This make same cases? Court should just forcefully good representations, its own imputes nonjudicial representers the intention of good making they by representation what have induced.
Refer to
section 234 of the new text American
pp
Jurisprudence
563).
Am
2d, Courts,
Jur
complete
follows:
section
Change in construction
statute
“Sec. 234—
overruling
judicial
retroactive
“The
a
a
construction of
given
will not be
effect.
statute
Such
ordinarily
will
in-
decision
be limited to
effect
change
statutory
legislative
rule,
of a
herent
merely
principle
prospective
is,
effect. This
has
applied,
change,
example,
to a
reversal
been
prior
judicial
of a
decisions,
construction
statute
descent.”
*60
Even quoted, Professor stands for It developing view. is worthy swiftly out of See Linkletter necessity as well as fairness. Walker (handed Supreme down Court June supra 7, 1965), page cited at (same Professor Keeton said talk at Miami Beach): judges merely notion that are in engaged
“The thoroughly law rather than now making is finding a But, to familiar observa paraphrase discredited. another dead letter of the law, tion about this dis grave. Surely credited notion still rules us from its for largely responsible persistence it is of the view law must be applied retroactively decisional prospectively alone. else Why should courts deny give to power themselves effect to ele principle justice that, mental compelling absent interests, notice given should be be countervailing * ** a in fore change law becomes effective? “The established, then, is well that use of point measures of with- prospective judicial is law-making in our tradition. legal Prospective overruling a departure decisional law is not from the traditional but at a courts, prominent functions most newly aon function courts have been perspective perform- since the dawn of the ing common-law tradition.” (dissenting part). I am not prepared O’Hara, to all abrogate immunity. tort judicially interspousal Kelly’s with Mr. agree expressed Justice view I this wdiole area sensitive would be better loft determination. legislative However, question presented judicial now^ determination I do I not feel rest may legislative inaction because change basic social that has eventuated since doctrine evolved our State. That change potential grave interspousal injury out of the almost arising universal family of motor vehicle. The ownership nature of Mosier Opinion by O’Hara, J., dissenting in part. operation negligent arising is to me different from its all other redressable nature impersonal peculiarly injury. It is almost occupational living an hazard of he said present-day our society. agree I therefore with Mr. predi- may be : that a suit maintained, Justice Souris upon injuries spouse during marriage cated one wrongful arising alleged out an act of the marital *61 partner wrongful allegedly when act resulted only marriage by death, the termination but wrongful alleged negligent opera- when the act is the in join I tion of motor vehicle. for further order of remand his proceedings Carney in Mosier v. King.
Smith disregarded have I Mr. Justice trench Black’s argument ant the case of Administrator Carney Mosier, Mr. could not be liable because Mrs. Carney could not have asserted her cause of action my “if death had not ensued.”* True, view, but in asserting pecu this was bar to the cause of action liar as his wife and not to the accrual of the retrospective cause of action itself. The character disputatious overruling recently but as (85 Linkletter Walker, US 622-629 S Ct 601) 1731, 14 L ed Supreme 2d the United States position, Court took the basic it, as I understand weigh that courts must the merits and demerits of question in each individual case. In this case, I Myers I County believe, as did in v. Genesee Auditor, overruling Mich that the should be as to these pending cases and future See, also, cases. 697). Green, Bricker v. 313 Mich 218, ALR As to Dood v. I vote Mosher, to affirm the order trial court. I, also, would award no costs. Reporter. [*] See CL § 691.581 (Stat Ann 1959 Cum Supp 27.711).— notes inapplicable immunity on the doctrine, but finds action which cause of arises when one facts since “the injury personal spouse reason of con sustains against can be the estate of asserted duct other (Mo 1957), Ennis Truhitte latter”; SW2d may administrator of husband’s estate 549, wife sue injuries Lorang negligent husband; inflicted 733), Hays (209 may (1949), Idaho 440 P2d wife v. maintain action husband even divorced during complained though tort committed was opinion also is that actions should coverture, tenor permitted during Ko coverture; Kowaleski v. 71), (1961), (361 P2d wife waleski Or employer negli for husband’s sue husband’s immunity personal gence not 67) should since “husband’s (361 employer”; P2d Or 51 extend his see 227 Georgia, Florida, Massachu for citations of cases in Mississippi, similar setts, and Vermont with Ohio, holdings; (1954), 2d v. Ottomeier Wash Johnson 723), operate rule 419 abate P2d does for benefit of children wife’s suit wife’s representative against personal husband’s estate wrongful (1961),