Price v. Price

Two cor reliance in the trial Appellee’s primary Points of Error Nos. One and Zavaletta rectly challenge upon the trial court’s conclu court and on is Parker, consequent (Tex.Civ.App.— sions and dismissal. We do not 611 S.W.2d 1980, writ), 9.30 9.31 as Corpus only construe former Articles and no re Christi in applicable to election to office. ported contests suggesting applicability case cases, applicable In such Article is the 9.03 Article 9.31 to an for office of election Norman, provision. Jordan v. 711 S.W.2d school That district trustee. conclusion (Tex.App. Beaumont, 1986). Article unnecessary in to the decision that — 9.31 indicates that the additional contes- (although actually sug case not dictum as tee(s) in Article actions “shall 9.30 gested Appellant). by only for basis statement, served notice and shall the Corpus Christi court’s assertion was thereto as in the case a reply file his Schulz, Funderburk contest Prior case law fur 1956, writ), office...” (Tex.Civ.App. no — Galveston ther indicates that former Articles election, which a involved bond not election 3070 of 1925 Revised Civil Stat Furthermore, appellate office. utes, predecessors the verbatim of Articles merely Zavaletta that court held in Article 9.31, 9.30 and applicable only were con 9.31rendered the additional mem board testing purposes elections held for parties, proper indispensable par bers not than for the election of officeholders. De ties, and that the trial court did not err in Webb, Shazo v. 108, 131 Tex. denying their motion to dismiss. Studer, (1938); Massay v. 11 S.W.2d We hold former Articles 9.30 and 227, 1928, 228 (Tex.Civ.App. no — Amarillo inapplicable 9.31were to this in an contest writ) (cited Shazo). with approval in De office, election former Article provi Texas Election Code 9.03 designated proper upon contestee sions make distinction clearer. even grounds whom had notice contest replaced Article 9.03 has been by Tex.Elec. to be to invoke the court’s served lower (Vernon 1986), Code Ann. sec. 232.003 des jurisdiction. performed Such service was ignating appropriate contestees under case, in this and the lower court erred in 232, Chapter titled Ar Contest Office. dismissing the Error contest. Points of ticles 9.30 and 9.31 have been replaced Nos. One and Two are sustained. provisions the contestee of Section 233.003 is hereby order dismissal reversed 233, in Chapter titled Contest on Measure. pro- and the cause remanded for further provisions While appli these new not were ceedings. 1985, cable to they this contest none theless clarify preserve further what perceive

we to be an earlier distinction be

tween contests over elective over office and

other election measures. Loock,

Beeler v. (Tex.Civ. dism’d), App. by Ap- cited — Galveston PRICE, Kimberly Appellant, Parmenter pellee, resolving utility is of no There, analysis upon issue. turned an involving whether election contest PRICE, Appellee. Duane at-large seven seats candi and fourteen No. 04-85-00579-CV. dates, indispens all declared winners were Texas, Appeals Court of parties in brought by able four contest San Antonio. accept office

unsuccessful seekers. We that all court’s statement candidates Sept. 1986. proper parties. are That court’s decision Rehearing Oct. Denied 1986. notice upon statutory did not turn requirements in the predecessor embodied 9.31,

statutes to Articles 9.80 and and is conflict with our conclusion. public policy pres-

based on a aimed at the peace harmony. ervation of marital Although 560 S.W.2d at 927. neither nor commentators courts have satisfactori- explained denying ly how relief to the in- spouse promote jured harmony, will we are unambiguous, constrained to follow if indefensible, precedent by set Nickerson and Bounds. judgment

The of the trial court is af- firmed. Justice,

BUTTS, dissenting opinion. respectfully I dissent. summary judg-

This is an from a Kimberly ment. Plaintiff Parmenter Price truck, together the driver a sued with Co., Servicing employer, his Pool Well Price, motorcycle Duane the driver of the passenger. Kimberly on which she was a injuries in suffered a collision between the Zimmerman, Antonio, B. Marvin San for motorcycle. alleged neg- truck She appellant. ligent inju- acts of each driver caused her Patton, Antonio, Timothy appel- San claim driver and ries. The lee. agreed judgment, ended an company Price and the claim Duane CADENA, C.J., Before and BUTTS and Duane moved for severed. Defendant CANTU, JJ. summary judgment upon the doc- based immunity. The trine of trial OPINION granted court the motion. CADENA, Chief Justice. summary judgment reflects evidence 17, 1983, Plaintiff, Price, July the date of the colli- Kimberly Parmenter that on sion, Kimberly “living Duane to- peals summary judgment denying from a were husband, gether” December recovery her but not married. On from her Duane Price, couple married. It is without personal injuries by suffered her question that the cause of action accrued prior to her defendant as negligence. six months before result of defendant’s We re- luctantly affirm. The doctrine of tort immuni- concept is a common derived from

Generally, ty the doctrine of legal and wife immunity recovery personal inju- bars fiction that the husband spouse person result of one in law. Married women ries suffered one as the become joinder of negligence spouse. the other could not sue or be sued without (Texas Caudle, their husbands. wife’s Bounds v. legal

1977); Nickerson, exist- property as well as Nickerson & Matson v. (1886). suspended during the considered 65 Tex. 281 While our ence were (coverture). ac- inappli- marriage The husband Court Bounds held the doctrine tort, choses in action and quired cable in cases of intentional it is clear all his wife’s court, He adopted, that it did the could assert them in his own name. Nickerson the torts of his wife. theory that the doctrine was became liable for concept necessarily impossible primary employed by This it made reason courts pub permitting interspousal suits is spouse one to maintain an action (to prevent disharmony). lic policy marital against the other. Bounds Nickerson, Tex. Nickerson & Matson v. Comment, (Tex.1977); see, (1886) leading was the case in Intrafamily Immunity, BAYLOR Although changing this now area of law. (1967). L.REV. 27 the court to the tra deferred common law (Ver- art. 1 TEX.REV.CIV.STAT.ANN. law, unity” really dition of “one in the ease 1969)provided non that the common law of public grounds. upon policy rested Nicker- England when not inconsistent with the son set the standard Texas courts Texas laws and would be the Constitution gave judicial us the doctrine of 1985, in rule of decision. Amended the law immunity, the rule one which denied the in virtually remains same TEX.CODES spouse right of action the other ANN., Civil Practice & Remedies 5.001 § spouse. Sykes Speer, In S.W. (Vernon 1986), except the that term “those (Tex.Civ.App. 1908), rev’d on other — portions of the England” common law of is 451, (1909), grounds, Tex. 119 S.W. 86 noteworthy used. It is that Texas is a the judgment awarding court wrote that a community property recognition state with damages personal injuries the wife Spanish of the Spanish law also. Under void on its face since it showed that the marriage species partner- injuries complained law the was a of of dur were committed ing Accord, ship relationship. the marital might in which each own and control a Gow Gowin, (Tex.Comm’n in v. 292 S.W. 211 separate estate well as a common inter- App.1927). It was stated in Latiolais v. community SPEER, est in a estate. LAW Latiolais, 361 (Tex.Civ.App.— S.W.2d 252 90, TEXAS, OF MARITAL RIGHTS IN §§ 1962, n.r.e.) Beaumont writ ref’d that: 91, 1961). (4th noted, Speer ed. As Quite generally, why one of the reasons system opposed is to prin- the common law bring a husband or wife cannot suit for a ciple merger that marriage completed a of other, personal during the the individuality women’s into that least, at is coverture that to do so would with consequential inability husband’s marriage to disrupt disturb tend the separate own or control property. It was relations, family pub- it which is the Speer’s theory that the framers of Tex- the protect policy lic of the state as Constitution never our intended that maintain inviolable. marital laws the take common turn as law see, Turner, Id. at 253. But Turner pronounced century. nineteenth 230, (Tex.1965) (Rule S.W.2d still Statutory defining the marital rela during plied where cause of action accrued in tionship undergone major Texas has re marriage divorce.) but suit filed after visions since 1967. TEX.REV.CIV.STAT. in Supreme Court Bounds Cau replaced by ANN. art. 4615 was TEX.FAM. dle, Nickerson, partially supra, overruled 5.01(a)(3) 1975). (Vernon CODE ANN. It § thereby allowing the time in Texas first provides recovery that a wife’s personal injury com an action tort for injuries earning other than for ca loss upon spouse by during mitted one other pacity part Id.; separate is of her estate. placed on this The limitation 4.03, See 4.04. The wife has the sole §§ that the tort kind of action was must management, disposition control and of her personal injury, the ra one intentional separate estate. Id. at 5.21. TEX. § being peace tranquility tionale I, 1972, pro art. 3a. adopted CONST. § already disrupted. the home had been “equality vides for sexual under law.” Acknowledging changes These invalidate the common law severely has criti immunity doctrine been unity for the rationale fictional of the hus many years cized in recent and that other legal entity. longer recognize viability, band and wife as one See no its states supra the rule to the extent Bounds at 927. court abolished it all claims for or would bar willful inten contained v. Gojohn, 600 Renfrow torts. at left tional Id. 927. decision (Mo.App.1980). 80-82 A recent original one-half Texas with of the rule. abolishioner was Ohio. See Shearer v. spousal negligent Now a claim based on a Shearer, 18 Ohio St.3d 480 N.E.2d spouse during act of (1985). Ohio had partially earlier limit- would still be barred. application ed the by permit- of the doctrine ting spousal injuries; suits for intentional Reversing the decision of the court of spouses Ohio likewise could sue their mates appeals, McKnight, civil Robertson v. property damages, contract, and for 1979), (Tex.Civ.App. Tyler S.W.2d 639 — injuries. criminal Texas at McKnight, Robertson v. (Tex.1981), permits spousal time all these other ac- Court wrote: doctrine, abrogating tions. In the Ohio appeals

The court of civil reasoned that court stated: the Texas law of tort immu- nity applied had to be because the New preservation of marital harmony is [T]he Mexico Al- policy. law violated Texas by allowing negligent better served the though policies the of Texas and New spouse, day age who this has more interspousal Mexico differ as to immuni- likely purchased liability than not insur- ty, that does not mean that the New compensate ance to those whom he in- contrary public Mexico rule is so to our jures, provide injured spouse, to for his policy that our en- courts will refuse to by denying compensation than for the force it. We have stated that we will spouse’s suffering of fear because only foreign refuse to enforce a harmony of the marital unit. morals, good jus- which violates natural Id. 480 N.E.2d at 393. tice, prejudicial general or it to the inter- plaintiff-wife in this case citizens, contends (citations ests of our own omit- wrongfully ap on the doctrine was ted) plied deny alleged to her redress for her permit spouses While Texas does not to injuries. suggested logic It is that the negligently recover from each other for Bynum, Whitworth v. 699 S.W.2d injuries, inflicted per- rule which does (Tex.1985) applied in this case. In Whit- good mit such a suit does not violate worth, court declared the Tex justice. morals or natural We note Statute, as Automobile Guest TEX.REV. large permit that a number do states of (Vernon 1977) CIV.STAT.ANN. art. 6701b added) (Emphasis such suits. rational relation unconstitutional under the Id. at 537. The court noted that the rule test, is, ship the classifications punish persons was not created to for be- “rationally are not drawn statute domiciliaries, ing protect Texas but to do- legitimate related to a state interest.” tranquility mestic and conform with the However, case the law is a property marital laws of our state. Rob- judicially created one. suggested strong points: ertson two Even though clings immunity to the doc- may agree While we with this statement suits, spousal negligence trine the Su- by Pennsylvania Supreme Court preme Court looks with favor at the abol- Hack, 495 Pa. 433 A.2d ishment of the rule in other states. Fur- (1981), immunity “A tortfeasor’s 860-61 only supple- ther the rule was fashioned to liability his marital rela- from because of ment Texas courts what the envisioned party tionship injured cannot be property marital laws to be in 1886. law, logic on the of or basis refrain from public policy,” this court will

At least 29 states have now doctrine, ruling of on the whole doctrine immunity applies in Texas to immunity as it appli- and several others have curtailed its negligent spouse A of a when the cause comprehensive cation.1 1980 list is also acts Appendix Appendix B. appellant 1. We are A and indebted to for the attached during marriage of action accrues re- to the conclusion Bounds v. lead Rather lationship. marriage require we address the limited that should not the wife question the application give any pre-existing of the doctrine up tort claim only negligent spouse to the of a oc- To acts her husband. hold otherwise curring logic, for marriage. pub- defies this would mean that before policy encourages “living lic the status of alleged injuries to the wife occurred together” marriage than rather six months her to one of before family penalizes life. To hold otherwise couple merely the tortfeasors. When the injured by exacting party a forbearance together” “lived there was no to the bar bring suit to seek for a redress bringin tortiously woman suit for inflicted negligent injury. injuries “boyfriend.” Why right should disappear to sue after I would hold that therefore the doctrine marriage? separate Her property immunity does in her marriage. were vested before the ply as a bar to a suit where the cause of negligent action on based acts of the other present provisions Family of the spouse arises before the Code, par- and Texas Constitution and the abrogation tial doctrine For I these reasons dissent. A

APPENDIX JURISDICTIONS RECOGNIZING INTERSPOUSAL IMMUNITY DURING MARRIAGE BUT HOLDING IT DOES NOT APPLY TO PREMARITAL TORTS SEPARATE WILL NOT PROPERTY DISRUPT CURRENT STATUS OF

RIGHTS FOR ACTS MARITAL IMMUNITY ALLOWED HARMONY DURING MARRIAGE CAL ^[1959] X ^[339] Foote P.2d v. Foote, ^[188] Fully abrogated ^[1962] DEL ^[1976] X Chen 420 F.Supp. 472 v. Liao, Sustained KAN ^[1964] X ^[396] O’Grady P.2d v. ^[285] Potts, claims allowed Intentional ^[1982] ME ^[1973] X X 309 A.2d 224 Moulton v. Moulton, Fully abrogated ^[1980] MICH ^[1965] X Mosier v. ^[138] N.W.2d Carney, ^[343] Fully abrogated ^[1971] MO ^[1955] X X Hamilton ^[285] S.W.2d v. ^[642] Fulkerson, Sustained NEV ^[1973] X Pearce ^[510] P.2d ^[1358] Boberg, Vehicle claims allowed ^[1974] N.C. ^{[1931] [1]} Shirley 158 S.E. 840 Ayers, Fully Reaffirmed abrogated ^{[1920] [1976]} PA. ^[1981] X ^[433] A.2d Hack, ^[859] Fully abrogated ^[19812] TENN. ^[1978] X Childress ^[569] v. Childress, ^[816] Fully abrogated ^[1983] VT. ^[1969] X Juaire A.2d y. Juaire, Vehicle claims allowed ^[197] changes affecting married women’s Statutory changed tortfeasor's liability by subsequent victim abrogated Court also same case and discounted theories of "unity,” family harmony, prevention of collusion and avoidance of trivial claims. addition, In Maryland abrogated inter- every jurisdiction views of spousal immunity as to motor vehicle acci- United States. Boblitz, See Boblitz v. dents in a 198 case involving premarital (Md.1983). A.2d 506 car wreck carefully after analyzing the

APPENDIX B JURISDICTIONS AND DECISIONS ON INTERSPOUSAL IMMUNITY abrogated Alabama 1931 Penton v. Penton 135 So. 481 Rule fully abrogated Alaska 1963 Cramer v. Cramer 379 P.2d 95 Rule fully abrogated Arizona 1982 Fernandez v. Romo 646 P.2d 878 Arkansas 1957 Leach v. Leach Rule fully California 1962 Klein v. Klein 376 P.2d 70 Rule fully Colorado 1935 Rains v. Rains Rule fully Connecticut 1914 Brown v. Brown 89 A. 889 acknowledged Delaware 1968 Short Inc. v. Perez 238 A.2d 341 Line, sustained acknowledged District of Thompson Thompson U.S. 611 Columbia Florida 1979 Raisen v. Raisen 379 So.2d 352 sustained Georgia acknowledged 1936 Eddleman v. Eddleman 189 S.E. 833 Rule and sustained Tugaeff Tugaeff acknowledged Hawaii 1958 v. 42 455 Hawaii Rule and sustained Lorang abrogated Idaho 1949 v. 209 P.2d Hays 733 Rule as to intentional torts Rogers abrogated Idaho 1975 v. 539 P.2d 566 Rule as to Yellowstone Park Co. vehicular torts Illinois 1960 Heckendorn v. 166 N.E.2d 571 Rule First Nat’l Bank statute imposed by abrogated Indiana 1972 Brooks v. Robinson 284 N.E.2d 794 Rule fully abrogated Iowa 1979 Shook v. Crabb 281 N.W.2d 616 Rule for all injury actions abrogated Kansas 1982 Stevens v. Stevens 647 P.2d 1346 Rule as to intentional torts abrogated 1953 Brown v. Gosser 262 S.W.2d 480 Rule Kentucky fully Louisiana 1965 Smith v. 174 122 Southern So.2d Because competing Farm Bureau effect of two (Article statutes, 2315 9:291) has a LSA-RS cause of action but no to enforce it remedy abrogated Maine 1980 MacDonald 412 A.2d 71 Rule v. MacDonald fully abrogated 1983 Boblitz v. Boblitz 462 A.2d 506 Rule as to Maryland vehicular torts Massachusetts 1976 Lewis v. Lewis ^[351] N.E.2d 526 Rule vehicular torts abrogated as to

71 Michigan abrogated 236 Rule Hosko N.W.2d fully 1971 Hosko v. 187 abrogated 416 Rule v. Frana N.W.2d fully Minnesota 1969 Beaudette 173 prospectively acknowledged Rule Austin 100 591 1924 Austin v. So. Mississippi sustained Rogers Rogers acknowledged Rule v. Missouri 1915 177 S.W. 382 sustained 15 922 Rule Conley Conley Montana 1932 v. P.2d Imig abrogated 382 Rule Nebraska 1979 v. March 279 N.W.2d fully abrogated Rule as to Rupert 1974 Stienne 528 P.2d 1013 Nevada v. vehicular torts abrogated Gilman Rule New 1915 Gilman v. 95 A. 657 fully Hampshire abrogated Rule fully A.2d 951 v. Merenoff 388 1978 Merenoff New Jersey abrogated Rule fully 531 P.2d 947 v. Overton Mexico 1975 Maestas New abrogated Rule fully Mut. Auto Ins. 324 N.E.2d 137 Farm York 1974 State New Co. v. Westlake abrogated Rule fully v. Crowell 105 S.E. 206 1920 North Carolina Crowell abrogated Rule fully v. Fitzmaurice 242 N.W. 526 Fitzmaurice Dakota 1932 North abrogated Rule N.E.2d 388 v. Shearer 1985 Shearer Ohio abrogated Rule fully v. 87 P.2d 660 Courtney Courtney Oklahoma abrogated Rule as Oregon Dames 287 P.2d 585 Apitz intentional torts abrogated Rule fully 433 A.2d 859 Hack v. Pennsylvania abrogated where Amica 394 A.2d Asplin Island Rhode death of either spouse Co. Mut. Ins. intervenes between act tortious suit commencement of abrogated Digby Digby 388 A.2d 1 Island Rhode abrogated Rule fully v. Pardue 166 S.E. Carolina 1932 Pardue South abrogated Rule fully 298 N.W. 266 Scotvold Dakota 1941 Scotvold South Rule fully v. Davis 1983 Davis Tennessee as to v. Caudle 1977 Bounds intentional torts v. Stoker 1980 Stoker Utah as to v. Richard 300 A.2d 637 Richard Vermont vehicular torts Virginia Thompson S.E.2d 1971 Surratt

Washington fully P.2d 771 Freehe 1972 Freehe v. Virginia S.E.2d 1978 Coffindaffer West Coffindaffer 209 N.W. 475 v. Pierce 1926 Wait Wisconsin Wyoming McKinney McKinney

Case Details

Case Name: Price v. Price

Court Name: Court of Appeals of Texas

Date Published: Sep 17, 1986

Citation: 718 S.W.2d 65

Docket Number: 04-85-00579-CV

Court Abbreviation: Tex. App.