Shirley M. Mountjoy v. Thomas Henry Mountjoy
347 F.2d 811
D.C. Cir.
1965
Check Treatment

*1 Order (4) proposed modification the Whether a de reallocation constitute would facto Rouge; and to11 Baton of Channel PER CURIAM. Rouge providing Baton Whether peti- petitioner’s On consideration of would violate a third VHF service

with a of an from tion for allowance encouraging policy of the Commission’s judgment Columbia development of UHF channels.7 petitioner’s Appeals, brief Court of respondent’s thereof, and of in for further case is remanded thereto, opposition it is ceedings 309(e) brief in in under accordance opinion. with the afore- that the court Ordered petition is denied. said So ordered. Judge WRIGHT, Circuit

J. SKELLY (dissenting): brought ac- an Plaintiff in the District her husband Sessions of General of Columbia arising damages allegedly out for caused accident automobile record shows gence her husband. Petitioner, JOY, Shirley M. MOUNT the par- the accident that at the time separated over three for been ties had MOUNTJOY, Respondent. Henry Thomas separated, and years, still being to- their for regarding problems gether discuss was to Appeals States Court United for moved defendant their children. invoking common summary judgment, April law doctrine Banc Petition for Reconsideration En permitted to a wife under which May Denied dur- for torts committed sue her grant- marriage. The motion Miller, Cir- Before K. Senior Wilbuk of Colum- appeal, the District and ed on cuit and WASHINGTON stating; affirmed, Judges, Wright, Chambers. bia Court requires significance a an issue of such of television 6. The allocation channels proceedings. hearing during rulemaking pro- § 309 full communities ceedings. fixed Enterprises, v. Federal 73.606, Inc. 73.- Wometco §§ C.F.R. 5; supra Comm’n, note If a Communications Grayson Enterprises, move transmitter supra Inc., reassignment note chan- a a is in fact site may duty nel, it be the of the Commis- Inc., supra Enterprises, Grayson comparative hearings de- 7. See sion to hold Assignment operate In Matter channel. note 5. termine who should . Corp. . Compare VHF Channel Additional an Rhode Island Television Rouge, La., Comm’n, & Fischer 25 Pike Baton v. Federal Communications U.S.App.D.C. the Commission R.R. 1687 development Telecasting Community UHF for Federal the need Co. v. that prevented assignment Comm’n, U.S.App. VHF third a Communications Although Rouge. To al- to Baton 255 F.2d channel reconsideration, denying petitions for without low Commission to determine reallocating hearing Chan- Channel said issue of whether Commission Rouge might have little al- would be nel 11 to Baton reallocated development, possibility summary Pike sub low the and effect UHF overruling policy no reasons R.R.2d silentio Fischer established attitude, through might given rulemaking process for were and opportunity that additional no indication others of an to com- and there is pete taken before and had been 11. Both the evidence change. Channel recognized that the Commission have *2 812 “* ** urges [Ajppellant harmony,1 though “family” even harmony presumed the fundamental bases for the doc- which such to is in longer fact, trine now no exist and that here does not exist in and has not adop- years. definite trend toward there is a existed for over three minority eliminating rule legislative why There is no reason any the bar action to tort between power abrogate need to invoked this Any and wife. long common law doctrine.2 Courts have long-established this doctrine power, obligation, had the indeed the to Columbia should be ac- depart which, from common law rules due complished Congressional by enact- changing circumstances, to times and no Mountjoy Mountjoy, ment.” v. longer policies serve to further which led App., (1965). 206 733 A.2d judicial adoption.3 Spector to their v. petitions plaintiff

The now for allowance Weisman, App.D.C. 280, 59 40 F.2d 792 pursuant to this court to 11 (1930), the last case in which court this 1965). (1961, Supp. D.C.Code 321 IV § applied interspousal immunity rule to alleged complaint setting The facts in this case,4 a factual similar this to present years ago. a marked illustration of the in was 35 decided At the time congruous being nature of the doctrine that decision five states had abolished applied. plaintiff deprived then, The here is the doctrine.5 Since 14 states have possibly by only by meritorious claim likewise done one of these re 6— usually supported rule is which sort to The statute.7 commentators family appeals preserving unanimously to the need for favor abandonment arguments husband, For a critical review who was one several generally urged appeal, ruling inter- tortfeasors. On spousal immunity, Prosser, hence, upon passed Torts see not contested not 1964). (3d 883 ed. this court. In Yellow Cab Co. of D. Dreslin, U.S.App.D.C. 327, C. v. 86 181 Thompson Thompson, v. 218 U.S. 626, (1950), F.2d 19 A.L.R.2d 1001 611, 111, (1910), 31 54 1180 S.Ct. L.Ed. enti- held that a tortfeasor Supreme Mar plaintiff’s to tled contribution from hus- Act, ried Woman’s § 30 D.C.Code 208 though band even the husband’s existing did not affect the doc gence helped plaintiff’s injury. to cause interspousal immunity. trine of The In that not did work hold case does not the statute be an to plaintiff claim, of her but affirmative codification the doctrine. merely prevent paying the burden of Catlett, Development 3. See falling the claim from husband. Doctrine Stare Ex- Decisis and the Johnson, 41, 5. Johnson v. 201 Ala. 77 So. Applied, tent It Which Should Be 335, (1917) ; 6 A.L.R. 1031 Brown v. (1946); Cardozo, 21 Wash.L.Rev. 158 Brown, 42, 889, Conn. 89 A. 52 (1924). The Growth or the Law L.R.A..N.S., (1914); Gilman v. Gil recent Goldberg observations Mr. Justice man, 4, 657, L.R.A.1916B, 78 N.H. 95 A. Gillespie v. United States (1915); Prosser, Prosser v. Corp., 148, 166, Steel 379 U.S. 85 S.Ct. 45, C. 102 S.E. 787 Wait v. 308, 318, (dis- L.Ed.2d Pierce, 202, 475, 191 Wis. 209 N.W. senting opinion), appropriate to the (1926). N.W. 48 A.L.R. 276 presented situation here: “Stare decisis mean does not blind California, 6. A recent convert Klein see adherence to irrational doctrine. Klein, Cal.Rptr. 102, 58 Cal.2d very point of stare decisis is to Prosser, op. 376 P.2d 70 security duce a cit.supra sense of in the work- for a list of the legal system by requiring remaining states which have abandoned expec- the satisfaction of reasonable the doctrine. ” * * * tations. McKinney’s Obligations Law, 7. See N.Y.General Lane, App.D.C. 89, 4. In l.Laws, 24-A, Ewald v. c. Conso the trial court had dis- plaintiff’s missed action her Judge, Washington, dissent- Circuit judges and The views these doctrine.8 ed. me convince suffice to writers policies whether the consider Judge, court should Wright, Skelly J. immunity, underlying what by Bazelon, joined filed a Chief may be, merit have sufficient ever petition for re- on denial statement continuing vitality. I justify the rule’s hearing en banc. *3 grant present motion. PERRY, Jr., Appellant, L. Russell America,

UNITED STATES Appellee.

United States Court

Argued May 1964.

Decided Nov. Rehearing

Petition for en Banc

Denied Jan. Conway (appointed by

Mr. Richard T. court), Washington, C., ap- D. pellant. Hoffmann,

Mr. Martin R. Asst. U. Atty., with whom Messrs. David C. Ache- E.g., Pbosseb, op.cit.supra jury Spouses, Torts Between 4 Vill.L. Habpeb 879-885; James, Tobts Rev. 303 (1956); McCurdy, In- Personal