Lead Opinion
The question presented is whether one, spouse can .maintain an action for personal injuries received by the alleged negligence of the other spouse, where the married parties are living together as husband аnd wife at the time of the alleged injury.
The same issue was before this court in Lyons v. Lyons (1965),
Appellant urges the court to overrule this precedent on the ground that the reasons supporting our holding in Lyons, supra, are either illusory or no longer compelling. Suffice it tó say that we adhere to the principles exрressed in Lyons, in the belief that they are as sound today in social policy as they are in reason. Appellant’s contention cannot be accepted in disregard of clear precedent.
Appellant also challenges the validity of the interspou-sal immunity doctrine based on this court’s decision in Primes v. Tyler (1975),
We think it sufficient to state that the interspousal immunity doctrine, with its inherent differential treatment of spouses and non-spouses, reasonаbly relates to the legitimate.state interest of fostering marital harmony and preventing fraud and collusion. The difference between this doctrine and R. C. 4515.02 lies in the higher state concern for regulating marriage and the greater pоtential for fraud stemming from the marital relationship, where an insured defendant spouse stands to benefit personally'from losing
For the foregoing reasons, the judgment of the Court of Appeals is hereby affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. By endorsing, in 1978, the doctrine that spouses who are living together cannot sue one another fоr injuries caused by each other’s negligence, the majority perpetuates a common-law rule which has had no support in fact, or even in legal fiction, for over a century. Because I believe that the majority’s еndorsement of interspousal immunity is regressive, that it lead's to unfair and probably unconstitutional results, and that it proves all too certainly that justice can be blind, at least to the realities of the 20th Century, I must dissent. '
I.
The doctrine of interspоusal immunity was originally based on the legal fiction that a husband and wife are one. 1 Blaekstone’s Commentaries 442 (1765). While this was undoubtedly a fiction of epic proportions, it supported the. proposition that spouses cannоt sue one another in tort. However, in the 1840’s, American jurisdictions passed statutes abrogating that common-law fiction and insuring wives as well as husbands the right to sue and be sued for the torts committed by or to them. Once those acts were passed, the doctrine of interspousal immunity became an anachronism — an anachronism which the majority opinion perpetuates.
Other jurisdictions have not displayed this court’s interest in preserving interspousal immunity. When this court upheld the doctrine last, in Lyons v. Lyons (1965),
.Why that minority is shrinking becomes apparent when one scrutinizes the commonly cited arguments for supporting interspousal immunity set forth in Lyons. These arguments are (1) that interspousal immunity is necessary to promote marital harmony; (2) that interspousal immunity prevents fraud and collusion against tactically disadvantaged insurance companies; and (3) that abrogating inter-spousal immunity is a legislative, rather than a judicial, task. None of these arguments is persuasive.
The last argument, that the General Assembly should do away with interspousal immunity, has never been persuasive. Interspousal immunity has its origins in common law. As a judicially-created doctrine, it may be judicially abolished. (Sears v. Cincinnati [1972],
The second rationale underlying Lyons is that inter-spousal immunity prevents collusion in cases brought by one married partner against the other’s insurance company. The reasons underlying that argument are strained indeed. To begin with, it is unlikely thаt “a wife’s love for her husband is such that she is more likely to bring a false suit against him than a genuine one.” (Prosser on Torts, 863, Section 122.) Moreover, there are numerous safeguards against fraudulent claims built into the judicial process. Given the dеterrent of a perjury charge and such devices for uncovering the truth as pre-trial discovery and cross-examination, the odds of a couple’s successfully pursuing a fraudulent claim are remote. Klein v. Klein (1962),
The Lyons opinion also justifies interspousal immunity on the grounds that it promotes marital harmony. To conclude that forbidding spouses to sue one another promotes domestic peace is a non sequitur. Marital harmony either exists or it does not. The harmonious marriage will not be hurt by allowing one spouse to benefit from the insurance coverаge of the other; and the unhappy marriage-will not be helped by denying legal rights to an already disgruntled spouse. Indeed, in light of today’s 40-50 percent divorce rate, it is safe to conclude that the state’s preservation of interspousal immunity has had little or no positive effect on the happiness of marriage partners and that, therefore,the doctrine should no longer be applied to bar the rights of individuals to sue or be sued in tort.
Because interspousal immunity is a judicially-created doctrine which this court may as readily abolish as adhere to, because that immunity places serious limitations on the century-old right of both spouses to sue and be sued for the torts committed by or tо them, and because the doctrine does not either discourage collusion or promote family harmony, it should be overruled.
II.
Interspousal immunity should also be abolished because it is unconstitutional. In Primes v. Tyler, supra, this court unanimously declarеd Ohio’s guest statute unconstitutional on the grounds that it denied equal protection and also denied due process by creating an irre-buttable presumption. The statute under challenge in that ease immunized drivers of cars from suits by guests injurеd by the negligent operation of those cars. The grounds advanced by the state for upholding the statute were that it preserved hospitality and prevented the possibility of fraudulent- claims. This court held that neither rationale “ ‘suit
The same reasoning applies to the instant cause. To begin with, the class discriminated against under inter-spousal immunity is very similar to that which was discriminated against under the guest statute. Its distinguishing feature is that it comprises individuals who know the driver or other negligent individual they may later wish to sue. The reasons advanced for discriminating against that class are also almost identical. They are to prevent collusive suits against those insuring negligent drivers or other negligent individuals and to promote a socially useful cause (hospitality and domestic harmony).
Moreover, both classifications deny equal protection because they impose differential treatment which does not suitably furthеr an appropriate governmental interest. Police Dept. of Chicago v. Mosley (1972),
Given the fact that spouses denied the right to sue under the interspousal immunity doctrine are discriminated against in the same manner and fоr equally unconvincing reasons as are friends denied the right to sue under a guest statute, I submit that the doctrine of interspousal immunity violates the Equal Protection Clause of the United States Constitution.
Interspousal immunity also creates a conclusive presumption which, like the one created by the guest statute, unconstitutionally denies due process.
“* * # [P]ermanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourtеenth. Amendments,” especially when they are “not necessarily or universally true in fact, and when the state has reasonable alternative means of making the crucial determination.” Vlandis v. Kline (1973),
Since interspousal immunity is an outmoded, ineffective and unconstitutional doctrine, I dissent.