Plaintiff, Clifford Freehe, seeks compensation for personal injuries allegedly sustained due to defendant's negligent maintenance of a tractor and failure to warn
The farm on which the accident took place is the separate property of defendant, doing business under the name of Hazel Knoblauch. The tractor involved in this accident, together with all other assets and income of the farm, were and remain the separate property of defendant. The business of the farm is carried on separately from any community business of the parties. Plaintiff has no interest in the farming operation. Neither was he employed by defendant.
The trial court granted defendant's motion for summary judgment solely on the basis of interspousal tort immunity. Plaintiff appeals.
Because the common-law doctrine of immunity is based upon the law's policy toward the personal relationship of the parties, and because the business liability of a sole proprietor is coextensive with and indistinguishable from the proprietor's "personal" liability, we will resist the temptation to treat this case as somehow involving an issue that is distinct from the general question of whether the rule of interspousal immunity should be retained. In Manion v. Pardee, 79 Wn.2d 1, 3, 482 P.2d 767 (1971), we said that "Comment or any possible reexamination of this doctrine by the court must await a proper factual setting." The case at bench presents that setting.
The case which apparently established the doctrine of interspousal tort immunity in Washington is Schultz v. Christopher, 65 Wn. 496, 118 P. 629 (1911). In that case the court referred to the common-law notion of "unity" of husband and wife, a notion which had been first adverted to (disapprovingly) in the case of Rosencrantz v. Territory of Wash., 2 Wash. Terr. 267, 5 P. 305 (1884). In Schultz, the court emphasized that plaintiff had conceded her disability to sue in the absence of legislation. She relied solely upon a statute presently codified as RCW 26.16.160. On that basis,
On three subsequent occasions parties before this court have claimed the defense of this immunity and in each instance we have rejected the defense on varying grounds. In Johnson v. Ottomeier, 45 Wn.2d 419, 275 P.2d 723 (1954), we held the common-law disability rule inapplicable against the personal representative of a deceased spouse, noting at page 424 that "the reason for the immunity no longer exists when one spouse is dead." In Goode v. Martinis, 58 Wn.2d 229, 361 P.2d 941 (1961), we held the disability inapplicable in an action for an intentional tort committed while the parties were legally separated but before their divorce was final, concluding that only a "shell of the marriage" existed under the facts. Then in Manion v. Pardee, supra, we held the disability rule inapplicable to an action for a tort committed before marriage, where the parties had become divorced during pendency of that appeal.
Our cases have referred to the historical arguments supporting the common-law disability. One is the "supposed unity of husband and wife." Johnson v. Ottomeier, supra; Schultz v. Christopher, supra. A second is a public policy of preserving peace and tranquility in the home. See Goode v. Martinis, supra; Johnson v. Ottomeier, supra. We deal first with these two reasons.
(Footnotes omitted.) W.L. Prosser, Torts § 122, 859-60 (4th ed. 1971). At old common law, with the husband entitled to the chose in action for his own torts and liable to himself for his wife's torts against him, the rule of interspousal disability made sense.
Things have changed. They had changed 88 years ago when the Rosencrantz court, noting the improved legal status of married women, held them as eligible as their husbands to serve on juries. Neither spouse is liable for the separate debts of the other. RCW 26.16.200. And either spouse may sue the other for invasion of separate property rights. RCW 26.16.180; Mattinson v. Mattinson, 128 Wn. 328, 222 P. 620 (1924). Recent legislation (Laws of 1972, 2d Ex. Sess., ch. 108) radically alters the relative right of the wife to manage and represent community property, rights and interests. Spouses are no longer individually liable for
Modern realities do not comport with the traditional "supposed unity" of husband and wife. In our view, this concept of legal identity is no longer a valid premise for a rule of this interspousal disability.
A second major reason given for the disability is the notion that to allow a married person to sue his or her spouse for tort damages would be to destroy the peace and tranquility of the home. On reflection, we are convinced that this is a conclusion without basis. If a state of peace and tranquility exists between the spouses, then the situation is such that either no action will be commenced or that the spouses — who are, after all, the best guardians of their own peace and tranquility — will allow the action to continue only so long as their personal harmony is not jeopardized. If peace and tranquility are nonexistent or tenuous to begin with, then the law's imposition of a technical disability seems more likely to be a bone of contention than a harmonizing factor.
We have previously discussed the family tranquility argument in an analogous context (parent-child disability: Borst v. Borst, 41 Wn.2d 642, 251 P.2d 149 (1952)) and in dicta in an interspousal disability case (Goode v. Martinis, supra). On both occasions, the argument has been rejected. For the reasons stated here and in those cases, we now expressly reject the notion that the desirability of family peace and tranquility is a valid reason for precluding a cause of action in tort against the tort-feasor spouse. See also Notes, 37 Wash. L. Rev. 233 (1962), and 38 Wash. L. Rev. 371 (1963).
A third reason advanced in support of maintaining the common-law rule of disability is the suggestion that the injured spouse has an adequate remedy through the criminal and divorce laws. It has been observed that neither of these alternatives actually compensates for the damage done, or provides any remedy for nonintentional (negligent) torts. Prosser, supra at 862-63. We have previously
It has also been argued that to permit litigation between spouses over personal torts would flood the courts with a burdensome amount of trivial matrimonial disputes. As a matter of theory, this argument could be interposed against virtually all personal injury claims. Any validity to the argument would depend whether such a "flood" materializes in practice. In Goode v. Martinis, 58 Wn.2d 229, 361 P.2d 941 (1961) at 234, we observed:
More recently, it has been noted that the number of jurisdictions permitting such suits has expanded, without apparent congestion. Prosser, supra, note 61, at 864. Thus, this theoretical problem has not materialized elsewhere. Furthermore, should the courts find this possibility to be materializing, there is nothing to prevent application of established notions of "consent" or "assumption of risk" to minor annoyances associated with the ordinary frictions of wedlock. See Prosser, supra at 863.
Respondent also suggests that another argument in favor of the disability rule is that to permit suits between spouses would encourage collusion and fraud where one or both of the spouses carries liability insurance. In Goode v. Martinis, supra at 234, we rejected this "pessimistic premise,"
We there cited, as an example of the ability of the legislature to cope with such a problem should it arise, the enactment of host-guest statutes (RCW 46.08.080, .085, .086) in automobile personal injury cases. We conclude that this possibility is not a valid premise for the common-law disability rule.
This brings us to consideration of respondent's argument that courts of this state are compelled to maintain the common-law disability rule due to the fact that we are a community property jurisdiction. In companion cases the Supreme Court of California, a community property state, convincingly refuted the reasons for the common-law rule. Self v. Self, 58 Cal.2d 683, 376 P.2d 65, 26 Cal.Rptr. 97 (1962); Klein v. Klein, 58 Cal.2d 692, 376 P.2d 70, 26 Cal.Rptr. 102 (1962). See also Prosser, supra, note 61, at 864. In a later case on a related matter, Chief Justice Traynor of that court observed:
The gist of respondent's argument on this point is that, under community property principles, the tort-feasor spouse would obtain half the recovery and, to that extent, benefit by his or her own wrong. Respondent suggests that the Self and Klein cases are distinguishable because of a California statute declaring that recoveries for personal injuries are the separate property of the injured spouse. We note that the California court did not rely solely upon that statute; rather, the statute was cited as an alternative ground, it first being concluded that the common-law disability ought to be abandoned as a judicial matter. Self v. Self, supra.
We are cognizant of the long-standing nature of the common-law rule of interspousal tort immunity. But we find more impelling the fundamental precept that, absent express statutory provision, or compelling public policy, the law should not immunize tort-feasors or deny remedy to their victims. With this in mind, we have reviewed the stated reasons for the common-law rule, and have found all of them to be insufficient. Therefore, the rule of interspousal disability in personal injury cases is hereby abandoned. To the extent that Schultz v. Christopher, 65 Wn. 496, 118 P. 629 (1911), can be read as inconsistent herewith, it is overruled.
Reversed and remanded.
HAMILTON, C.J., FINLEY, ROSELLINI, HALE, HUNTER, STAFFORD, WRIGHT, and UTTER, JJ., concur.
(Footnote omitted.) 57 Calif. L. Rev. 592 (1969).