Stoker v. Stoker

616 P.2d 590, 1980 Utah LEXIS 995

• Court: Utah Supreme Court
• Decided: August 8, 1980
• Docket: 16376
• Status: Published

Opinions

MAUGHAN, Justice:

Before us is a judgment of the District Court granting summary judgment in favor of the defendant. Plaintiff’s action is for personal injuries alleged to have been intentionally inflicted, and to have been suffered at the hands of defendant, prior to the divorce of the parties.

The only issue presented is whether the doctrine of Interspousal Tort Immunity prevents the trial of this action. We hold, that it does not. The judgment is reversed, and the matter remanded for trial. Costs to appellant. All statutory references are to Utah Code Annotated 1953, unless otherwise indicated.

In Taylor v. Patten,1 this Court held, under our statutes a wife may recover from her husband for intentionally inflicted injuries. However, in the later case of Rubalcava v. Gisseman, and the Union Pacific Railroad,2 this court held the statutes considered in Taylor v. Patten did not compel the conclusion tort actions should also be included in the abrogation of immunity, with actions on contracts and property matters. We do not agree.

Prior to the adoption of the Married Women’s Acts ³ the common law as it related to the disabilities of married women was, as we find it, in Commentaries on the Laws of England, by Sir William Blaekstone.⁴ In the cited volume at page 290, we find the foundation stone of interspousal immunity:

“III. Having thus shewn how marriages may be made or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. . [Footnote omitted.]

In the foregoing we find the disability of coverture arising, because of the unity of husband and wife. Upon marriage the husband and wife became one, thus she could not sue that entity of which she was a part.

This condition is evidenced by other disabilities of coverture as set out in Cooley.

“If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant. . . ”⁵

The pertinent part of Utah’s Married Women’s Act as found in 30-2-4, is:

“. . . and may prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband.” [Emphasis supplied]

The statute authorizes her to prosecute and defend all actions for the preservation and protection of her rights and property, as if unmarried. It speaks of rights and of property in the disjunctive, and, all actions for the preservation and protection of her rights would certainly include a right to be free from an intentional tort of her husband.

The pertinent statute has been with us since, at least, 1888, and appeared in the revised statutes of 1898; and without alteration has come down to the present. Lending credence to our interpretation of that statute is the fact it was enacted with full knowledge of Article I, Section 11, Constitution of Utah, which is as follows:

“All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.”

It was also enacted with full knowledge of Article IV, Section 1, of our Constitution, which is as follows:

“The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.”

Our Married Women’s Act, as has been demonstrated, is in derogation of the common law. As such, attending its construction, is 68-3-2:

The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of this state. The statutes establish the laws of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice. Whenever there is any variance between the rules of equity and the rules of common law in reference to the same matter the rules of equity shall prevail.”

To read into our Married Women’s Act, a proscription against a wife suing her husband, would be to construe it so strictly as to add a provision which the legislature did not put there.

The old common law fiction is not consonant with the realities of today. One of the strengths of the common law was its ability to change to meet changed conditions. Here, the Legislature did not wait for the common law to change, it made the change for it; and did so at a time when a great many of Utah’s sister states were enacting, or had previously enacted, Married Women’s Acts.⁶ Our holding today reaffirms the Legislative abrogation of Interspousal Immunity. That the trend in our sister states is certainly in consonance with our holding today: See 92 A.L.R.3d 901, at p. 923, et seq.

We reaffirm Taylor v. Patten,⁷ and call attention to the caveat, 2 Utah 2d at page 408, 275 P.2d at page 699. The caveat is as follows:

“This does not mean that a husband or wife can recover from the other for any unwanted caress, kiss, or other physical contact as sometimes claimed. The marriage relation is created by the consent of both of the parties; inherently within such relationship is the consent of both parties to physical contacts with the other, personal dealings and ways of living which would be unpermitted and in some cases unlawful as between other persons. The essential objects and purposes of marriage such as living together, creating a home and rearing a family are expected and consented to by husband and wife but would be unlawful and in some instances even criminal as between other persons. Under some circumstances such consent might be withdrawn and thereafter would not prevent civil liability occurring, but until that happens the ordinary dealings between husband and wife are with the consent of both and do not create liability between them. However, this does not mean that either husband or wife consents to intentionally inflicted serious personal injuries by the other.” [Footnote omitted.]

WILKINS and STEWART, JJ., concur.

1 . 2 Utah 2d 404, 275 P.2d 696 (1954).

2 . 14 Utah 2d 344, 384 P.2d 389 (1963).

3 . 41 Am.Jur.2d, Husband and Wife, Sec. 17.

4 .Cooley’s Blaekstone, Volume 1, Book 1, Chapter 15, page 280, et seq. (1879).

5 . Id., p. 294.

⁶

7 . Footnote 1, supra.