Hosko v. Hosko

174 N.W.2d 317, 20 Mich. App. 416

• Court: Michigan Court of Appeals
• Decided: July 16, 1970
• Docket: Docket 6,193
• Status: Published

Opinions

J. H. Gillis, J.

On July 6, 1965, plaintiff,

* while a passenger in a car driven by her husband, defendant herein, was injured in an automobile accident. As a result of the accident, plaintiff suffered brain damage and was subsequently declared a mental incompetent by the Wayne county probate court. Suit was commenced on plaintiff’s behalf by her legal guardian. It was alleged that the accident occurred as a result of defendant’s gross negligence.

At the time of the accident, plaintiff and defendant were husband and wife. They remain married. Defendant filed a motion to dismiss asserting that plaintiff.had failed to state a claim for the reason that interspousal tort immunity precluded recovery.

This appeal is taken, upon leave granted, from an order of the Wayne county circuit court denying defendant’s motion for summary judgment.

The most recent case before our Supreme Court in which the question of interspousal tort immunity arose was Mosier v. Carney (1965), 376 Mich 532. After an exhaustive reconsideration of the doctrine of interspousal tort immunity, Mr. Justice Souris in an opinion signed by three other members of the Court¹ concluded:

“We this day hold: (1) that a suit may be maintained predicated upon injuries to one spouse during marriage arising out of an allegedly wrongful act of the marital partner, when the allegedly wrongful act resulted in termination of the marriage by death; (2) that a suit commenced before marriage of the parties thereto may be maintained by one spouse against the other for an alleged antenuptial tort.” Mosier v. Carney, supra, p 566.

Defendant contends that in this case, unlike the situation in Mosier v. Carney, supra, the allegedly wrongful act has not resulted in the termination of the marriage by death. Since this case does not fall squarely within Mr. Justice Souris’ pronouncement that “a suit’ may be maintained * * * when the allegedly wrongful act resulted in termination of the marriage by death,” it is argued that inter-spousal immunity bars plaintiff’s claim. We agree.

In Kircher v. Kircher (1939), 288 Mich 669, 671, it was broadly declared that interspousal tort suits contravene the public policy of this State. Three earlier decisions had shaped that policy, establishing as a general rule the- doctrine of interspousal tort immunity. See Bandfield v. Bandfield (1898), 117 Mich 80; Harvey v. Harvey (1927), 239 Mich 142; Riser v. Riser (1927), 240 Mich 402.

In Mosier, Mr. Justice Souris seriously questioned the continuing validity of the traditional, a priori arguments in favor of interspousal immunity. However, the Court was unwilling to overrule its earlier decisions and a majority of the Justices in Mosier were careful to limit its effect. Speaking for three other Justices, Mr. Justice Souris concluded:

“It is appropriate to add that what we have said here concerning the doctrine of interspousal tort immunity must be considered in light of these same fact circumstances." 376 Mich 566. (Emphasis supplied.)

In concurring, Mr. Justice Otis Smith noted:

“I wish it to he understood, then, that in concurring in the holding of Justice Souris’ opinion, I am not voting for the abolition of all interspousal tort immunity in Michigan, hut for the specific result in the cases before us.” 376 Mich 573. (Emphasis supplied.)

Mr. Justice O’Hara was also careful to limit the extent of his agreement with Mr. Justice Souris.² Thus, it is clear that Mosier, in effect, creates two limited exceptions to the common-law doctrine of interspousal immunity.³ Where the tort is antenuptial suit may be maintained. Likewise, suit may he maintained where the tort results in the termination of the marriage by death. However, if the facts as alleged fall within neither of these specific exceptions, Band field, Harvey and Riser remain controlling.

In this case, the allegedly wrongful act has not resulted in the termination of the marriage by death. It is conceded that the parties remain married. Thus, plaintiff in effect urges that we create an additional exception to the “plain and long-established” rule of interspousal tort immunity. See Bandfield, supra, p 82. This we have no right to do.

In his opinion in Mosier, Mr. Justice Souris noted:

“Since the doctrine of interspousal tort immunity is a creation of the common law and since such doctrine has never been codified in this State, it is our duty to re-examine it and, if necessary to avoid continuing injustice, to change it.” 376 Mich 543. (Emphasis supplied.)

We believe it is the duty of an intermediate appellate court to adhere to established precedent. If an additional exception to the general rule of interspousal tort immunity is to be created, the decision must be that of the Supreme Court. Since in this case the allegedly wrongful act has not resulted in the termination of the marriage by death, stare decisis requires that we reverse the trial court’s denial of defendant’s motion for summary judgment.

Reversed. Costs to appellant.

Danhoe, J., concurred.

Plaintiff in this opinion refers to Eleanor Hosko, and not to her guardian Alice Hosko.

1 T. M. Kavanagh, C. J., and Dethmers and Adams, JJ., concurred with Mr. Justice Souris. Mr. Justice Otis Smith concurred in the result. Justices Kelly and Black dissented. Mr. Justice O’Hara dissented in part.

2 See 376 Mich 607.

3 We need not decide whether Mosier is stare decisis in cases where the facts, as alleged, fall within its limited holding. It is not clear whether a majority of the Court subscribed to the rationale of Mr. Justice Souris’ opinion, as only three Justices signed his opinion. Cf. Zirkalos v. Zirkalos (1949), 326 Mich 420. And see Mr. Justice Black’s dissenting opinion in Mosier: “The Court, having determined to reverse for reasons a majority of the Justices will not endorse * * 376 Mich 596, 597.