Guffy Ex Rel. Reeves v. Guffy

631 P.2d 646, 230 Kan. 89, 1981 Kan. LEXIS 269

• Court: Supreme Court of Kansas
• Decided: July 17, 1981
• Docket: 52,360
• Status: Published

Opinions

The opinion of the court was delivered by

Fromme, J.:

This appeal presents the issue of whether this court should continue to recognize interspousal tort immunity in Kansas, which immunity was first recognized by this court in 1952. See Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952).

The present case arose from a one-car accident in Jackson County, Kansas. The accident occurred on December 28, 1977. George Guffy drove his automobile off the road and into a culvert. His wife, Ethel Guffy, and three other women passengers received severe injuries. We are concerned in this action with a husband’s liability, if any, for causing his wife’s injuries. The wife received severe brain and kidney damage plus several fractured ribs. The injuries to her brain caused permanent loss of ability to express thoughts and to understand speech. As a result of Ethel Guffy’s incapacity, a conservator was appointed to look after her property and preserve her rights in action. The conservator, Lawrence Reeves, then brought the present action in tort against the husband, George Guffy, alleging negligence on his part.

At all times since the accident Ethel Guffy has received continuous in-patient medical treatment at various hospitals and when not in a hospital, she has resided in a skilled nursing home facility. The conservator claims damages for Ethel Guffy’s personal injuries in the sum of $100,000.00. The conservator points out that the husband George Guffy was insured against liability under a policy of motor vehicle liability insurance with policy limits up to $100,000.00 per person and $300,000.00 per accident.

The trial court sustained a motion for summary judgment in favor of the husband and against the conservator. The decision was solidly based on the doctrine of interspousal immunity as first announced by this court in the Sink case. Appellant concedes that the doctrine of interspousal immunity in Kansas must be abrogated if the judgment below is to be reversed and the case remanded for trial. Separate actions were also brought by the three other passengers for amounts totaling $535,000.00. The actions are pending in the trial court but they are of no present concern to this court.

We have been favored with four excellent briefs, one by the plaintiff, one by the defendant, one by the American Civil Liberties Union as amicus curiae, and one by the Kansas Association of Defense Counsel as amicus curiae. The briefs by the plaintiff and by the American Civil Liberties Union urge abrogation of the immunity. The briefs by the defendant and by the Kansas Association of Defense Counsel urge this court to adhere to the doctrine of interspousal immunity.

Depending on which brief you consult, the doctrine of inter-spousal immunity either is archaic and retreating into oblivion or it is vibrant and solidly based on the public policy of this State.

In Kansas the doctrine has been considered in light of our Constitution and the Kansas Married Women’s Act. Article 15; § 6 of the Constitution of the State of Kansas provides:

“The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.”

As to property owned by the parties at the time of the marriage, K.S.A. 1980 Supp. 23-201(a) provides:

“The property, real and personal, which any person in this state may own at the time of his or her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to him or her by descent, devise or bequest, or by gift from any person except his or her spouse, shall remain his or her sole and separate property, notwithstanding the marriage, and not be subject to the disposal of his or her spouse or liable for the spouse’s debts.”

As to property acquired by the parties during the marriage, subsection (b) of that statute provides:

“Property, other than property described in subsection (a) or property excluded by a written agreement by the parties, acquired by either spouse after marriage and before commencement of an action for divorce, separate maintenance, or annulment, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy or tenancy in common, shall be marital property. Each spouse has a common ownership in marital property which vests not later than the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment, the extent of the vested interest to be determined and finalized by the court pursuant to K.S.A. 1978 Supp. 60-1610, and any amendments thereto.”

K.S.A. 1980 Supp. 23-203 provides:

,“A person may, while married, sue and be sued in the same manner as if he or she were unmarried.”

In Harrington v. Lowe, 73 Kan. 1, 18, 84 Pac. 570 (1906), in referring to Art. 15, §§ 6, 9, it is said:

“These constitutional provisions themselves irretrievably broke down the common-law theory of marital unity, destroyed the notion of feminine subjection to baronial authority, threw off the restraints of coverture, and installed the modern doctrine of the equality of man and wife before the law.”

In 1952 in the case of Sink v. Sink, 172 Kan. 217, this court for the first time held:

“Neither spouse may maintain an action in tort for damages against the other.” Syl.

In the Sink case this court considered the constitutional provisions for married women as well as the statutory provisions which authorize a married woman to sue and be sued in the same manner as if she were unmarried. In adopting interspousal immunity Chief Justice Harvey, who authored the opinion, cited many cases from other states which had embraced interspousal immunity and stated:

“The reason normally given by the courts for such refusal [to abrogate immunity] is that it would be contrary to public policy and tend to disrupt the marital relation. We think the reasoning sound.” 172 Kan. at 219.

Following Sink this court has continued to recognize and apply interspousal immunity in all cases coming before it.

In O’Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964), the holding in Sink was approved. However, the court held that a woman could continue to maintain an action against a man whom she later married after the action accrued. The court reasoned that since the cause accrued before the marriage it was a personal property right held before marriage and could be retained and prosecuted after the marriage.

In Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965), a divorce action was pending between the husband and wife when the personal injuries were inflicted. This court held that neither spouse could maintain an action in tort for personal injuries against the other so long as the marriage relationship continued. In the Fisher v. Toler opinion, the cases on the subject were reviewed again and the doctrine was applied. No cause of action by the wife was permitted.

In Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), this court recognized the law of Sink but held that interspousal immunity from torts does not prevent a determination of the percentages of causal fault of both the husband and the wife in a comparative negligence case when an action is filed on behalf of both husband and wife against a third party tortfeasor.

The foregoing is a brief summary of the law on the subject of interspousal immunity as it appears in the case law of Kansas. Now we turn to the arguments presented by the parties for and against change.

The appellant asserts that the overwhelming weight of current judicial authority favors abolition of immunity. An exhaustive annotation on the modern status of interspousal tort immunity in personal injury and wrongful death actions appears in 92 A.L.R.3d 901-959. We will not list the cases either from the states which retain immunity or from those which have abrogated it. However, we do note that there are five states that permit actions between spouses in motor vehicle cases only. There are six states which permit actions between spouses when based on an intentional tort. If these two categories are considered separately, the remaining states are about evenly divided.

After studying the cases from other states, we conclude the decisions are based upon the decisional law, the statutory law and the public policy of each respective state. As such, the cases are not persuasive for the outcome of each case has been dictated by entirely different constitutional and statutory law. For instance, at least three states have interspousal immunity dictated by statute. 92 A.L.R.3d 901, § 5. Some states are community property states in which- damages for personal injuries to a spouse become community property. In those states, in the absence of specific statute providing otherwise, the damages recovered would be controlled and managed by the husband. Windauer v. O’Connor, 107 Ariz. 267, 485 P.2d 1157 (1971). Some states do not have married women’s acts and immunity in those states may be based on the common-law doctrine of the unity of husband and wife. Therefore, we do not believe the weight of current judicial authority from other states is either well defined or of significance in deciding the present question for Kansas.

The appellant argues the historical origins of interspousal immunity no longer exist for the unity of husband and wife has been discarded by the adoption of the married women’s acts. Here, in Kansas, from the earliest time the rights of women have been recognized both in the Constitution and in a married women’s act (Comp. L. 1879, ch. 62, § 1). See Norris v. Corkill, 32 Kan. 409, 4 Pac. 862 (1884). However, interspousal immunity was adopted in the Sink case in 1952, and found to be in harmony with both the Constitution and statutes of the State. Since that date we have had no change in either the constitutional or the statutory law relating to the question.

It is stated that perhaps the foremost justification for immunity is based on the premise that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home and this would be contrary to the public policy of the State. The authors of the Restatement of the Law of Torts have criticized this justification by stating such justification is based on the faulty premise that an uncompensated tort makes for peace in the family. They further state that the folly of that premise is apparent and the prevalence of liability insurance has gone far to remove the force of the argument. Restatement (Second) of Torts § 895F, comment d (1977).

We note that on April 24, 1981, Senate Bill No. 371 was signed into law in Kansas. Effective January 1, 1982, K.S.A. 1980 Supp. 40-3107 is amended so every policy of motor vehicle liability insurance issued by an insurer to an owner residing in this State may contain various exclusions from coverage. The act provides that any insurer may exclude coverage for “any bodily injury to any insured or any family member of an insured residing in the insured’s household.” See S.B. 371 § 2 (i) (1). The effect is to authorize an insurer to exclude liability coverage to the insured and members of the insured’s household if sued by one of the persons insured by the policy. With such an exclusion statutorily authorized in Kansas it would appear that the position of the Restatement may be flawed if applied to Kansas. Liability insurance coverage between members of the same household would not be extended to those insured.

There is room for concern in other areas, if and when personal tort actions are permitted between husband and wife. Consider the facts of the present case but remove the existence of liability insurance. (This absence of coverage may well occur in future cases after Senate Bill No. 371 becomes effective January 1, 1982.) Ethel Guffy has received severe brain damage and is unable to handle her real estate and personal property. Normally, with immunity from liability for the wife’s injuries the husband could be appointed her guardian and conservator with less expense and trouble. However, if interspousal immunity is abrogated and the husband has, through negligence, caused the wife’s injuries a conflict of interest surfaces. The husband cannot act as conservator. The wife is incapacitated. Her conservator in such case should be a disinterested person. The conservator has a fiduciary duty to look after the best financial interests of the wife. The conservator has no choice but to sue the husband. The husband’s desire for family harmony cannot control the actions of the conservator. Without insurance coverage there is no separate fund to pay the judgment. A judgment against the husband in such case creates a serious burden on his own resources. The husband remains liable for the support of the wife whether she is healthy or ill and whether she is living with him or apart. Lindbloom v. Lindbloom, 177 Kan. 286, 279 P.2d 243 (1955). Wohlfort v. Wohlfort, 116 Kan. 154, Syl. ¶ 3, 225 Pac. 746 (1924). A spouse may have the implied authority to pledge the other’s credit for “necessaries.” See Chipp v. Murray, 191 Kan. 73, 76, 379 P.2d 297 (1963). The situation outlined above would disrupt and tend to destroy the peace and harmony of the home.

No one contends that the sanctity of every marriage should not be fostered and protected. The parties to every marriage should be encouraged to live together and separation is to be discouraged. See Ranney v. Ranney, 219 Kan. 428, Syl. ¶ 2, 548 P.2d 734 (1976).

In addition to our case law there are statutes which have for their purpose the fostering of the family unit. For instance, K.S.A. 58-312 prevents one spouse from creating a lien upon the marital property without the consent of the other. K.S.A. 59-505 prevents one spouse from disposing by will of more than one-half of his or her property without the consent of the other. The public interest in marriage in Kansas is manifested by various statutory provisions addressing the formation, dissolution and maintenance of the marriage relationship. See K.S.A. 23-101 et seq., K.S.A. 1980 Supp. 60-1610(c) and (d), and K.S.A. 1980 Supp. 23-201 et seq.

Other considerations should be noted. Under Kansas law, any recovery which plaintiff would make, should this action be allowed to proceed, would inure to the benefit of the defendant-husband. That is, all property acquired by either spouse during the marriage is “marital property,” in which each spouse has a common ownership interest. K.S.A. 1980 Supp. 23-201(b). Furthermore, the husband is invested with a right to recover for his loss of consortium and loss of services. K.S.A. 1980 Supp. 23-205. Should the injured spouse die the surviving spouse or any one of the heirs at law may maintain an action for wrongful death for the benefit of all of the heirs, including the surviving spouse who would share in any recovery of losses. See K.S.A. 60-1902, 60-1905. Such an anomaly would be created if there is liability insurance available and interspousal immunity is abrogated. Such a result would be offensive to a sense of justice for it would allow a negligent party to profit by his own actions.

The attorney for the appellant speaking on behalf of the wife made the rather dramatic observation during oral arguments that George Guffy was understandably amazed after the automobile accident when he found out that he had insured everybody’s wife against personal injuries except his own. The statement is somewhat misleading in that George Guffy purchased a liability insurance policy. Such a policy was purchased to protect George Guffy and other members of his household against lawsuits arising out of the ownership and operation of an automobile. The insurance company under such a policy is required to provide George Guffy and members of his family with a defense to actions brought against them and to pay up to the limits set in the policy in settlement of such claims or in payment of judgments. Neither Ethel Guffy nor any other person was insured under the policy against personal injuries. Other types of insurance coverage are available to a family. Personal injury protection coverage, medical payments coverage and accident insurance may be purchased specifically for the purpose of protecting against injuries to a spouse and other members of the family.

Appellant argues that abrogation of interspousal immunity is a logical extension of what this court recently held in Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980). In Nocktonick the court considered the question of whether an unemancipated minor child may recover damages in an action against a parent for injuries caused by the negligence of the parent in operating an insured motor vehicle. The appellant argues that the expressed public policy in Kansas of requiring insurance on all motor vehicles as enunciated in the Kansas Automobile Injury Reparations Act virtually compels the abrogation of immunity when personal injury arises from the negligent operation of an insured motor vehicle. The premise on which this conclusion is reached is no longer true. The legislature has now amended the Kansas Automobile Injury Reparations Act by enacting Senate Bill No. 371. Effective January 1, 1982, an insurer is given and will no doubt exercise its right in liability insurance policies to exclude coverage of “any bodily injury to any insured or any family member of an insured residing in the insured’s household.”

Also, the decision in Nocktonick was premised on personal injuries caused by the negligence of a parent in the operation of a motor vehicle. The court was aware of the insurance laws of the State in effect when the decision was rendered. 227 Kan. at 769, 770. In addition, that decision is distinguishable from the present question because the parent-child relationship had not been the subject of extensive judicial and legislative action when Nocktonick was decided. In Nocktonick, this court was not faced with the rule of stare decisis, as it is in the present case.

It is not always easy to determine the proper ambit of the court’s authority on an issue of the present kind. We must not discard the time-tested advantages of consistency and uniformity in the fabric of the law to do that which we might conceive to be justice in a particular instance. Many statutes in Kansas establish and protect the marital relationship. We as judges may have the power, though not the right, to ignore the ultimate effects of legislative pronouncements. History teaches us that departures from clear principles of law lead to more and more departures, many of which for the moment may seem in the highest public interest; but, when that happens, the day will soon come when personal preferences of judges overcome long established principles, and the law instead of being rules governing action becomes vacillating judgments dependent upon the particular membership of the court at any given time.

“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ ” Cardozo, The Nature of the Judicial Process, at 141 (1921).

We have considered all arguments put forth in the briefs submitted by the parties and by aniici curiae even though we do not have time to discuss them. We conclude the doctrine of interspousal immunity presently existing in Kansas is vibrant and solidly based on the public policy of this State. It should not be abrogated. The interspousal immunity adhered to in this case is limited to that recognized in Sink v. Sink, 172 Kan. 217. Neither spouse may maintain an action against the other for tortious personal injury occurring during marriage. This decision does not deal with intentional torts or suits to determine rights in real or personal property.

The judgment of the district court is affirmed.