Lydia RUBALCAVA, Plaintiff and Respondent, v. Ruby L. GISSEMAN, Administratrix of the Estate of Theodore Rubalcava, Deceased, Defendant and Appellant, Union Pacific Railroad, a corporation, Defendant.
No. 9822.
Supreme Court of Utah.
Aug. 12, 1963.
384 P.2d 389 | 14 Utah 2d 344
The constitutional question was not raised in the trial court, so there can be no evidence of any pressure or undue influence by the Commission on the trial judge. The fact that the Commission appoints the judges for a six-year term and must reappoint or appoint a successor to the judge at the end of that term, does not violate the three departments clause of our Constitution. The fact that the Commission keeps records, circulates information and holds conferences to discuss the juvenile court problems merely suggests furnishing of educational opportunity to the judges rather than using undue influence, or usurpation of judicial function.
CROCKETT, J., concurs in the concurring opinion of WADE, J.
Elton & Moore, Salt Lake City, for respondent.
CROCKETT, Justice.
Plaintiff Lydia Rubalcava sues the Union Pacific Railroad and the estate of her husband, Theodore Rubalcava, for injuries
Defendant estate moved to dismiss on the ground that a wife cannot maintain a tort action against her husband (or his estate). From a denial of that motion the estate appeals.
We are not concerned on this appeal with the merits of the cause of action, which alleged intoxication of the deceased husband,1 but only with whether a wife can maintain such an action. We have heretofore confronted and found difficulty with a closely related problem in the case of Taylor v. Patten,2 which we will refer to below. In view of that fact it seems appropriate in approaching this question to survey its background, and the rulings of other courts concerning it.
In former times at common law it was considered that upon marriage, the wife as a legal entity merged with her husband; that her person and property became his; that any recovery for injury to them belonged to him, and that the suit had to be brought in his name. The concept of unity was correlated to that of the husband being master of the house and the objective of preserving family harmony, which it was thought adverse interests, and a fortiori, lawsuits over them, would tend to disrupt. Following this tenor of thought it has also been reasoned that permitting such suits would open the door to actions upon occurrences in the family which should be left to time and the normal give and take of married life to heal; and further, that where insurance is involved, because of the common interest the spouses would have in the outcome, collusion would be encouraged.
The plaintiff asserts that the concept of complete legal unity is an outmoded vestige of a bygone era; that with this change in legal status, the reasons based upon it militating against suits of this character should also pass into the discard; and that under what are called married women‘s statutes, there has been such an enlargement of a wife‘s individual rights that the action should be permitted. Under these statutes, which confer upon a wife rights concerning her person, her separate ownership of property; and the privilege of suing in her own name in respect thereto, it is quite uniformly held that in proper circumstances the wife may sue her husband in regard to contract or property. But there is a divergence of authority as to whether this extends her privilege to actions in tort against him.
It is to be conceded readily that the idea of the spouses’ single legal entity in the husband has passed into limbo; and perhaps more reluctantly, that as a generality, the idea that the husband is master of the house exists more in theory than in fact, so that its persuasive force in shaping the policy of the law is minimal. Nevertheless, a majority of courts reject the reasons stated above as given by the minority for allowing such actions as not persuasive. They emphasize the proposition that it should be the purpose of the law to protect family solidarity and adhere to what we consider to be the better and sounder view by refusing to allow an action such as this.6
A leading case espousing this position is Thompson v. Thompson,7 in which the
We are in accord with the reasoning that statutes expressly allowing actions by the wife against the husband in respect to contract and property, do not compel the conclusion that tort actions should also be included. If there is danger of marital discord from the former, that evil will not be minimized by expanding the statutes’ meaning to permit tort actions as well. The old adage, two wrongs do not make a right, is applicable.
The answer to the argument for marital harmony: that discord will not be engendered when the insurance company is to pay, is neither sound nor entirely realistic. The question of liability can be ascertained justly only upon its own merits. Whether there is insurance or not is immaterial to this determination. However, the fact cannot be ignored that where there is insurance, and this is known to both parties, the temptation to collusion exists; and this is increased when the supposedly adverse parties are in the symbiotic relationship of husband and wife. The risk of loss, and the natural reaction to defend against a charge of wrong, may be negligible or nonexistent; and are supplanted by the covert hope of mutual benefit. It is obvious that for persons so disposed, the situation would provide spawn for lawsuits that otherwise would not be brought. We are impressed with the wisdom of Justice Sims, dissenting in Brown v. Gosser,9 wherein he stated that to allow interspousal actions “encourages raids on insurance companies through unmeritorious claims which never would be instituted where the husband did not carry liability insurance, thus possibly raising insurance rates on thousands of honest persons for the benefit of the fraudulent few.”10
The argument that domestic felicity will not be impaired when the insurance com-
Plaintiff has also placed reliance upon some authorities which have held that even though the action should not otherwise be maintainable, where the husband has beaten his wife or committed other intentional wrong against her, or where he is dead, so that “there remains no domestic peace and felicity to be protected,” it should be allowed.11 As will appear below in analyzing our statutes, no basis can be found therein for any distinction between intentional or unintentional torts. Under them the plaintiff either has a right to bring an action in tort, or she does not. This is also true where the husband is deceased. In that regard this further is to be said: whether such a cause of action exists should be determined upon the basis of the facts at the time of the alleged wrongful act and not upon whether the accused lives or dies thereafter. The incongruity and illogic of holding that an injured wife could not recover against her husband if he survived, but only if he should die, is patent.12
From the foregoing background we approach the most important and the controlling aspect of this case: analysis of our own statutes, in which the basis of this cause of action would have to be found. They indicate clearly that our legislature intended to depart from the marital unity fiction and to establish the wife as a separate personality legally. Numerous rights as to her person, her separate ownership of property and the privilege of suing in respect to them are conferred upon her. The first section we look at is
It is argued that this delineation of rights, particularly Section 2, which authorizes a wife to enforce her contracts; and 4, which states that she may “prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried,” provide the foundation for this action. However, careful reading shows that with respect to the authorization in those two sections, the former speaks only of contracts and the latter is referring only to her wages and property rights.13 Following this authorization the latter section refers to the right of recovery for injury to her person:
“There shall be no right of recovery by the husband on account of personal injury or wrong to his wife * * * but the wife may recover against a third person for such injury or wrong as if unmarried, * * *.” (Emphasis added.)
This language simply takes from the husband the right of action for injury to the wife and gives it to her. Since the husband and wife are the only two persons mentioned, the authorization of the wife to recover “against a third person” can only reasonably be interpreted as against someone other than the husband. We are unable to find in this section, either expressly or by implication, any authority for the wife to sue her husband in tort. But as we read the language, its plain import is to the contrary; and the authorization to sue a third
This conclusion also finds support in
There is another important consideration which has a bearing on the issue here. It has always been the law of our state, insofar as we have been able to ascertain, that a suit of this character could not be maintained. It is inevitable that this has been assumed to be the law and has been depended upon in the formation of existing contracts. We are of the opinion that under these circumstances, in fairness to those who have relied thereon, and in proper deference to the solidarity of the law, any change could be justified only to correct patent error,14 otherwise it should be made by the legislature, plainly so declaring, so that all may be advised what the change is and when it will be effective.15
We have arrived at this conclusion notwithstanding Taylor v. Patten.16 Insofar as that case may be considered inconsistent with this opinion,17 it is overruled.
Reversed. No costs awarded.
HENRIOD, C. J., and McDONOUGH and CALLISTER, JJ., concur.
WADE, Justice.
I dissent, adhering to my views expressed in Taylor v. Patten.