*1 inflicted, tionally and to have been suffered defendant, prior to the at the hands of STOKER, Appellant, Plaintiff Ida U. parties. divorce of the v. is whether the only presented issue STOKER, Defendant Karl S. Immunity pre- Interspousal Tort doctrine Respondent. hold, We the trial of this action. vents No. 16376. reversed, and judgment it does not. for trial. Costs the matter remanded Supreme Court of Utah. statutory references are to appellant. All 8, Aug. 1953, unless other- Annotated Utah Code wise indicated. held, Patten,1 un this Court Taylor may recover from
der our statutes a wife
intentionally
inju
inflicted
her husband
However, in the later case of Rubalca
ries.
Gisseman,
Pacific Railr
and the Union
va
con
oad,2
court held the statutes
compel
not
v. Patten did
sidered in
also be
tort actions should
the conclusion
immunity,
abrogation of
included
mat
with actions on contracts
agree.
not
ters. We do
the Married
adoption
Prior to the
3the common law as it relat-
Women’sActs
was,
women
ed to the disabilities of married
it,
on the Laws
in Commentaries
as we find
Blaekstone.4 In
England, by William
Sir
290, we find the
page
at
the cited volume
interspousal immunity:
foundation stone of
how mar-
Having
“III.
thus shewn
dissolved, I come
or
riages may be made
now,
legal
conse-
lastly,
speak
making, or dissolution.
quences of such
marriage, the husband and
“By
Knowlton,
Pete N.
Vlahos &
Vlahos of
very
are one
in law:
Ogden,
plaintiff
appellant.
the woman is
legal existence of
being or
Warner, Marquardt
Frank S. Warner of
marriage,
during the
suspended
Hasenyager, Ogden,
&
for defendant and
consolidated into
incorporated
least is
respondent.
husband;
wing,
whose
under
that of
cover,
every
performs
protection, and
she
MAUGHAN, Justice:
law-
called
our
thing; and is therefore
feme-covert,
viro co-
foemina
french a
judgment
Before us is a
of the District
covert-baron, or
is said to be
operta;
granting summary judgment
Court
in favor
influence
under the
of the defendant. Plaintiff’s action is for
lord;
husband,
baron,
and her con-
injuries
alleged to have been inten-
1,
1,
Blaekstone,
404,
4.Cooley’s
(1954).
Book
Volume
1. 2 Utah 2d
dition her revised statutes of and without alter- Upon this of an principle, coverture. un- ation has come down to the present. Lend- wife, person in husband and ion of de- ing our interpretation credence to of duties, legal rights, pend almost all the is statute the fact was enacted full with disabilities, and that either of them ac- I, knowledge of Article Section Consti- quire marriage. speak I not at of tution which is as follows: present of the of rights property, but of every “All courts shall be open, and merely personal. are as . person, injury for an to done him in his [Footnote omitted.] person, property reputation, or shall have foregoing disability we find the of remedy by due course of which shall arising, coverture because of the unity of be administered without denial or unnec- Upon marriage husband and wife. the hus- essary and delay; person no shall be one, band wife and became thus she could prosecuting defending barred from be- or not sue entity part. of which she was a State, fore in tribunal this himself This condition is evidenced other disa- counsel, any or civil to which is a cause he bilities of as set in Cooley. coverture out party.” injured person “If the wife be in her or It was also with of knowledge enacted full property,
her can bring she no action for IV, Constitution, Article Section of our redress without her husband’s concur- which is as follows: rence, name, and in his as well as her rights “The of of citizens of the State sued, own: neither can she be without be vote and hold office shall not Utah ”5 making the a husband defendant. . abridged on sex. denied or account of Both male female citizens of this and pertinent The part of Utah’s Married civil, enjoy equally political State shall all 30-2-4, Act Women’s as found in is: rights religious privileges.” and and “. may prosecute and and defend Act, as Our Married Women’s has been preservation all pro- actions for the and demonstrated, of derogation is in the com- of rights property tection her as if such, attending mon As law. construc- right unmarried. There shall be of tion, 68-3-2: is recovery the husband account on of The rule the common law that personal wife, of stat- injury wrong or to his therewith, in derogation for utes thereof are to expenses connected but the may against strictly application construed has no recover a third unmarried, injury for as if The statutes of state. statutes recovery expenses and such shall include respecting establish the laws this state expenses medical treatment and other relate, subjects they paid by the or assumed husband.” provisions proceedings their and all under [Em- phasis supplied] liberally are to be construed a them with objects view to effect the statutes prosecute statute authorizes her to promote justice. Whenever there preservation and defend all for the actions equi- rules any variance between the protection rights property, law in ty and rules common refer- speaks as if unmarried. It and of ence the same matter rules and, disjunctive, all actions equity prevail.” shall preservation certainly would include a to be Act, a To read into our Married Women’s free from an tort of her intentional hus- suing proscription against wife her hus- band. band, so as strictly would be to construe it legislature pertinent provision which the did statute has been with us add since, least, 1888, appeared put not there. Id., p.
5. injuries by the other.” rious is not conso common law fiction
The old today. One of with the realities of nant omitted.] [Footnote ability law was its strengths of the common changed conditions. change to meet STEWART, JJ., concur. WILKINS wait Here, did not Legislature CROCKETT, (dissenting). Chief Justice it made the law to common *3 it; great when a and did so at a time abrupt an This decision constitutes enacting, were many sister states of Utah’s potential which has the change in our law enacted, Married Wom previously or had It is submitted far-reaching effects. the holding today reaffirms en’s Acts.6 Our diametric any is to be such if there Im abrogation Interspousal Legislative by judicial legisla- it should not be states the trend in our sister munity. That tion, preroga- whose by Legislature, the but holding with our certainly in consonance is to fashion and responsibility it tive and 901, 923, p. et 92 A.L.R.3d at today: See very At the policies. such upon decide seq by any least, be a if there is to Patten,7 v. and call reaffirm ef- means, only prospective
We have it should caveat, page the 2 Utah 2d at unjust attention to disruptive and to avoid fect in order 408, is as page P.2d at 699. The caveat 275 and insur- obligations impact on contractual follows: been entered programs which have ance a husband or our
“This does not mean that state of present the into based the other for wife can recover from law.1 caress, kiss, physical or other
unwanted
any such
those who advocate
If there are
mar-
as sometimes claimed. The
contact
law, it is the
change in the
substantial
riage
by the consent of
relation is created
Legisla-
prerogative of
function
parties;
inherently
within
both
ture,
people,
the will of
representing
relationship is the consent of both
con-
and
forum for full discussion
provide a
oth-
parties
physical contacts with the
prob-
cons of
pros
sideration
er,
living
personal dealings
ways
law those
involved,
into
and to enact
lems
unpermitted
and in some
would
will best
which,
judgment,
in their
policies
persons.
unlawful as between other
cases
Whereas, I con-
serve the commonwelfare.
objects
purposes
The essential
judiciary
duty
ceive
to be
living together, creating
marriage such as
prescribed
constitutionally
to the
adhere
family
expected
are
rearing
a home and
to intrude
powers; and not
separation and wife
and consented to
husband
to make
Legislature’s prerogative
into the
and in some in-
but would be unlawful
judicial re-
law,
rather, to exercise
but
even criminal as between other
stances
ideas as
to their own desires
straint as
persons. Under some circumstances such
be,
sustaining
ought
law
to what the
might
consent
be withdrawn and there-
law as enacted.2
carrying
out the
liability oc-
prevent
after would not
civil
base itself
opinion purports
The main
curring,
happens
until that
the ordi-
but
statutory and our
our
propositions:
on two
and wife
nary dealings between husband
that neither
It is submitted
law.
decisional
are with the
of both and do not
consent
that both
conclusion and
However,
support its
of them
liability
them.
create
between
have
are,
time immemorial
and since
or now
mean that either husband
does not
for the
been,
contrary. The bases
intentionally
se-
wife consents to
inflicted
Skaggs Drug
v.
Cen
Am.Jur.2d,
Wife,
2. See Trade Commission
Husband and
Sec. 17.
41
ters, Inc.,
431,
(1968);
P.2d 958
21 Utah
446
Registration,
1, supra.
Dept.
567 P.2d
v.
7. Footnote
Stone
(1977).
Ry.
Oil
1. See Great Northern
Co.
Sunburst
Co.,
145,
358,
287 U.S.
53 S.Ct.
husband could sue This enforced anciently out of arose what was considered to the same extent and in the same man- highly and continues to be the wise and ner as if she were unmarried. *4 policy the important preserving of solidari- plain hardly It is so justify as to comment ty family minimizing antago- the of only that said 2 Section deals with contracts therein. passage nisms of time has not rights contract and therefore could not changed important the vital and fact that any imagination stretch by of the be re- contract, entering marriage in into the the garded as in creating right a the wife to sue parties exchange join agreeing vows her husband in tort. love, together loyalty themselves in and un- only in expression those statutes other, with each the purposes ion for which of the any right makes mention aof living together family as a unit and of injuries wife to recover personal for is in providing for each other’s emotional and provides that: Sec. needs, the including obligation material A may wages receive the for her support Consequently, each other.4 what- personal . may prose- labor . of material ever worth comes to either cute and for the preser- defend all actions will spouse family benefit the other and the vation and that, It realistically, unit. follows looked at property as if unmarried. adversary proceed- there cannot be a true Whereas, ordinarily, ing. authorization, a defendant And following that said Sec- expected would be defensive be and re- the right tion further recites wife’s the plaintiff, sist claims of a if the latter is recovery person: injury for to her spouse, it his would be in interest of the the There recovery by shall be no the family unit part, of which he a for her to is personal injury husband on account of prevail. wrong to his wife . but the wife may a against person recover third The evils are not the eliminated fact injury as if unmarried insurance may that be involved. In addi- . . herein emphasis is effects, [All to other temp- added.] tion bad there the possi- with the tation dishonest collusion significant upon It is attention to focus undermining integrity destroying ble fact prescribing in the further: mutual confidence. And the dis- personal wife has to account of recover on existing ruptive upon effects insurance con- injuries, just-quoted section mentions programs tracts and entered into on the wife; and that it both husband and autho- present unjust basis recovery only “against rizes the latter to a spreading policy of burdens to other holders person”, any pointedly omitting third refer- by necessary premi- increases in insurance suing Equally impor- ence to the husband. ums. says persuasive, nothing tant and about my opinion authorizing It is will a to sue a wife. that one search in husband Un- in our opinion’s reasoning, vain statutes for authorization the main this stat- der 78-45-4, 3. Footnote main See Secs. 78-45-3 and U.C.A.1953. unjust family erations favoring preservation hiatus in illogical ute an leaves existed, hardly harmony be more obvious longer the law. It could no the action incongruous was result proceed than that no It is should to trial. submitted intended; meaning and plain and that in no can be found that case foundation a only against authorize a suit intent is to justify saying decision “We present with nothing thfrd and has to do affirm v. Patten.” against the husband. authorizing suit has It is of what been said basis simply expressly authorizes Section 6 there my above that it is conviction that and wife to ac- both the husband maintain abrupt change in our law should be no such each in regard tions in decision; judicial if there is to be such if the same manner as unmarried. Similar Legislature. be it should just analysis to the of the other sections only the virtues not This would have above, significant it is discussed manner, but also being proper done in the speaks only property; and that it section Further, authority. if such proper injury. makes reference made, thereby change were all affected Hence, way in which this section there is no just what would be as to advised could be deemed to authorize a wife effective, they will be so when it bring against such a cause of action conduct, govern their contracts could their husband. accordingly. obligations and their To considered in to the stat- reference I decision of the district would affirm the utes just universally recog- discussed is the *5 court. nized statutory rule of construction: “ex- pressio unius est exclusio alterius.” If the HALL, J., concurs dissent Legislature had intended to create a cause CROCKETT, J.C. action, recognize or to of a wife tort, to sue husband in her it would so in those
should have done statutes forth each
specifically set of the several bring which the wife does have to interests, her
suits for the
person, property. and her the absence so, my inescapably it is to
having done mind
clear statutory that there is no such author- STATE of Plaintiff and
ity maintain for the wife to such cause Respondent, against her husband. action opinion’s fallacy The main other placed reliance on the case of KENNEDY, Charles Alvin Defendant According my Patten.5 there is analysis, Appellant. departure that case for from the basis in No. 16854. policy preserving harmony family. There a decree of divorce had been Supreme Court of Utah. entered, family had already thus disintegrated, protecting so the reasons for Aug. 1980. solidarity present. were not It was basis, pointed concurring as out opinion, swing this writer as the vote
in a in that divided court concurred situation,
particular fact where the
alleged an assault di- was the husband wife,
rectly consid- upon the where the main Footnote