Sales, Gary N.

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Recent Development NoteThe Need for Legislative Action to AbolishInterspousal Immunity: Varholla v. VarhollaVarholla v. Varholla' presented the Supreme Court of Ohio with theopportunity to reconsider its 1965 holding in Lyons v. Lyons2 thatnegligence actions between spouses were precluded in Ohio by the doctrineof interspousal immunity. The plaintiff in Varholla brought an actionseeking damages for personal injuries she allegedly sustained because ofher husband's negligent operation of a motor vehicle. The defendant'smotion for summary judgment on the ground that he was immune fromsuit by his spouse was granted by the trial court. The court of appealsaffirmed. In a six-to-one decision the Supreme Court of Ohio chose tostand by its decision in Lyons.At common law it had been impossible to maintain actions betweenspouses because of the legal fiction that husband and wife were one Notuntil the passage of the statutes known as Married Women's Acts4 did amarried woman gain a separate legal identity. These statutes, however,were primarily viewed by the courts as only "free[ing] the wife from thehusband's control of her property."5 Many courts, including those in Ohio,refused to interpret the statutes as abolishing the common law prohibitionagainst tort actions between spouses. Instead, these courts retainedinterspousal immunity in tort actions on policy grounds.6In 1965 when Lyons was decided, the majority of jurisdictionsadhered to the doctrine of interspousal immunity.7 Presently twenty-nine1. 56 Ohio St. 2d 269, 383 N.E.2d 888 (1978).2. 2 Ohio St. 2d 243, 208 N.E.2d 533 (1965). In Lyons the court retreated from its earlierliberalizing trend in the intrafamily immunity area, and asserted that negligence actions betweenspouses were barred in Ohio by the common law doctrine of interspousal immunity. Fora thoroughdiscussion of these earlier cases and Lyons, see Sullivan, fntra-Fanily Immunity and the Law ofTortsin Ohio, 18 W. RES. L. REv. 447 (1967).3. W. PROSSER, HANDBOOK OF THE LAW OF ToRTs, § 122, at 859-60 (4th ed. 1971) [hereinaftercited as PROSSER].4. See, e.g., OHIO REV. CODE ANN. §§ 2307.09 and 2323.09 (Page 1954):§ 2307.09 MARRIED WOMAN MAY SUE AND BE SUED.A married woman may sue and be sued as if she were unmarried, and her husband maybe joined with her only when the cause of action is in favor of or against both.§ 2323.09 JUDGMENT AGAINST MARRIED WOMAN.When a married woman sues or is sued, like proceedings shall be had and judgmentrendered and enforced as if she were unmarried. Her property and estate shall be liable for ajudgment against her ....5. PROSSER, supra note 3, at 861.6. Id. at 862-63; see also Lyons v. Lyons, 2 Ohio St. 2d 243, 244,208 N.E.2d 533,535 (1965);Lewis v. Lewis, 351 N.E.2d 526 (Mass. 1976).7. See Annot., 43 A.L.R.2d 632, 636 (1955)..772 OHIO STATE LA W JOURNAL [Vol. 40: 771states permit a negligence action like the one brought by Mrs. Varholla. 8Only twenty-one states and the District of Columbia still prohibit motorvehicle negligence actions between spouses.9Thus, for the second time in fourteen years, the court refused toabolish this outdated immunity and Ohio, therefore, remains one of ashrinking number of jurisdictions retaining it. In Lyons, the court cited thethree traditional reasons for retaining the immunity: (1) that abolishinginterspousal immunity is a legislative rather than a judicial task; (2) thatinterspousal immunity is necessary to promote marital harmony; and (3)that interspousal immunity prevents fraud and collusion against insurancecompanies.'l The Varholla court simply stated that it thought theseconsiderations were still valid, thus ignoring the persuasive arguments ofother state supreme courts that have recently abolished interspousalimmunity. Those courts declared that the three considerations upon whichthe Ohio court relied did not justify the immunity.Because interspousal immunity is a judicially created doctrine it issubject to amendment, modification, or abrogation by the courts, I and theVarholla court was incorrect in claiming that the immunity must be8. Bennett v. Bennett, 224 Ala. 335, 140 So. 378 (1932); Cramer v. Cramer, 379 P.2d 95 (Alas.1963); Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957); Klein v. Klein, 58 Cal, 2d 692,376 P,2d 70,26 Cal. Rptr. 102 (1962); Rains v. Rains, 97 Colo. 19,46 P.2d 740(1935); Brown v. Brown, 88 Conn. 42,89 A. 889 (1914) (by implication); Rogers v. Yellowstone Park Co., 97 Idaho 14,539 P.2d 566 (1974);Brooks v. Layne, 433 S.W.2d 116 (Ky. 1968); Soirez v. Great American Ins. Co., 168 So. 2d 418 (La.App. 1964) (construing LA. REV. STAT. ANN. § 22:655 (West 1978), to permit suit by one spouse againstthe other's insurer, but not directly against spouse); Lewis v. Lewis, 351 N.E.2d 526 (Mass, 1976);Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); Beaudette v. Frana, 385 Minn. 366, 173N.W.2d 416 (1969); Rupert v. Stienne, 90 Nev. 397,528 P.2d 1013(1974); Lundbergv. Hagen, 114 N.H.110, 316 A.2d 177 (1974); Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970); Maestas v. Overton, 87N.M. 213, 531 P.2d 947 (1975); Henry v. Henry, 291 N.C. 156, 229 S.E.2d 158 (1976); Fitzmauriee V.Fitzmaurice, 62 N.D. 191, 242 N.W. 526 (1932); Courtney v. Courtney, 184 Okla. 395, 87 P.2d 660(1938); Digby v. Digby, 388 A.2d I (R.I. 1978); Prosser v. Prosser, 114 S.C. 45, 102 S.E. 787 (1920);Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266 (1941); Richard v. Richard, 131 Vt. 98, 300 A2d 637(1973); Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971); Freehe v. Freehe, 81 Wash. 2d 183,500 P.2d 771 (1972); Coffindaffer v. Coffindaffer, 244 S.E.2d 338 (W. Va. 1978); Zelinger v. State Sand& Gravel Co., 38 Wis. 2d 98, 156 N.W.2d 466 (1968); N.Y. GEN. OaL. LAW § 3-313 (McKinney 1978).9. Burns v. Burns, III Ariz. 178,526 P.2d 717 (1974) (interspousal immunity, however, does notbar a former spouse from suing for an intentional tort inflicted during marriage); Short Line, Inc. v.Perez, 238 A.2d 341 (Del. 1968); Mountjoy v. Mountjoy, 121 U.S. App. D.C. 27,206 A.2d 733, appealdenied, 347 F.2d 811 (1965); Eddleman v. Eddleman, 183 Ga. 766,189 S.E. 833 (1937) (dictum); Flogelv. Flogel, 257 Iowa 547, 133 N.W.2d 907 (1965); Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978);Moulton v. Moulton, 309 A.2d 224 (Me. 1973) (tortious conduct occurring during marriage by onespouse against other creates no cause of action, but wife may sue husband during marriage for tortiousinjury occurring prior to marriage); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978) (but wife canmaintain action when outrageous, intentional tort is alleged); McNeal v. McNeal's Estate, 254 So. 2d521 (Miss. 1971); Ebel v. Ferguson, 478 S.W.2d 334 (Mo. 1972); State Farm Mut. Auto Ins. Co. v.Leary, 168 Mont. 482,544 P.2d 444 (1975); Emerson v. Western Seed & Irrigation Co., 116 Neb. 180,216 N.W. 297 (1927); Varholla v. Varholla, 56 Ohio St. 2d 269,383 N.E.2d 888 (1978); Apitzv. Dames,205 Or. 242, 287 P.2d 585 (1955) (interspousal immunity is not a bar in actions based on intentionaltorts); Digirolamo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973); Childress v. Childress, 569 SW,2d816 (Tenn. 1978) (prenuptial injury claims can be brought during marriage); Bounds v. Caudle, 560S.W.2d 925 (Tex. 1977) (interspousal immunity abolished in willful and intentional tort cases);Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389 (1963); McKinney v. McKinney, 59 Wyo. 204,135 P.2d 940 (1943); HAWAii REV. STAT. § 573-5 (1968); ILL. ANN. STAT. cit. 68, § I (Smith-Hurd 1959),10. 56 Ohio St. 2d at 270, 383 N.E.2d at 889 (1978).11. See e.g., Lewis v. Lewis, 351 N.E.2d 526 (Mass. 1976); Rupert v. Stienne, 90 Nev. 397,528INTERSPOUSAL IMMUNITYabolished only by the legislature and not by the judiciary. Nevertheless,because the court has consistently refused to abolish the immunity, it isincumbent upon the legislature to take action to abolish this anachronisticand unfair doctrine. Indeed, "there is something wanting in a system ofjustice which permits strangers, friends, relatives, and emancipatedchildren to recover injuries suffered as a result of their driver's negligencebut denies the right to the driver's spouse . .. . The invidiousness of animmunity preventing interspousal suits is made even clearer by the factthat the remaining reasons put forth by the court for retaining interspousalimmunity do not support its retention.The majority in Varholla also noted that interspousal immunity wasnecessary to promote marital harmony. A flaw in this argument was shownby the Supreme Court of Washington in Freehe v. Freehe:13If a state of peace and tranquility exists between the spouses, then thesituation is such that either no action will be commenced or that thespouses-who are, after all, the best guardians of their own peace andtranquility-will allow the action to continue only so long as their personalharmony is notjeopardized. If peace and tranquility is nonexistent or tenuousto begin with, then the law's imposition of a technical disability seems morelikely to be a bone of contention than a harmonizing factor.A second problem with this argument is that by statute15 spouses may sueone another in contract and property actions. These actions are just aslikely to disrupt marital harmony as a tort action, but they are permitted.To permit suit to remedy all wrongs except personal torts "runs against ourfundamental concept of tort law. . . . The state of matrimony alone isnot a sufficient justification for preventing suit on an actionable wrong."'' 6The final argument for retaining interspousal immunity in Varhollawas that interspousal immunity prevents fraud and collusion againstP.2d 1013 (1974); Freehev. Freehe, 81 Wash. 2d 183,500P.2d771 (1972). The SupremeJudicial Courtof Massachusetts stated:[I]t is within the power and authority of the court to abrogate thisjudicially created rule;, andthe mere longevity of the rule does not by itself provide cause for us to stay our hand if toperpetuate the rule would be to perpetuate inequity. When the rationales which gave meaningand coherence to a judicially created rule are no longer vital, and the rule itself is notconsonant with the needs ofcontemporarysociety, a court not only has the authority but alsothe duty to reExamine its precedents rather than to apply by rote an antiquated formula.Lewis v. Lewis, 351 N.E.2d 526, 531 (Mass. 1976).The Ohio Supreme Court, moreover, found no need to defer to the legislature when it abolishedcharitable hospital immunity in Avellone v. St. John's Hospital, 165 Ohio St 467, 135 N.E.2d 410(1956), or governmental immunity for municipally owned hospitals in Sears v. Cincinnati,31 Ohio St.2d 157, 285 N.E.2d 732 (1972).12. Immer v. Risko, 56 NJ. 482, 495, 267 A.2d 481, 488 (1970).13. 81 Wash. 2d 183, 500 P.2d 771 (1972).14. Id. at 187, 500 P.2d at 774.15. See note 4 supra.16. Rupert v. Stienne, 90 Nev. 397,402, 528 P.2d 1013,1016 (1974). Cf. O111o CoN5T. art. 1, § 16(Page 1955), which states: "All courts shall be open, and every person, for an injury done him in hisland, goods, person, or reputation, shall have remedy by due course of law, and shall have justiceadministered without denial or delay." See also Justice W. Brown's dissent in Varholla in which heargues that interspousal immunity is unconstitutional. 56 Ohio St. 2d at 273-275,383 N.E.2d at 891-92.1979]OHIO STATE LAW JOURNALtactically disadvantaged insurance companies. This rationale can beattacked in two ways. First, the courts always have the task of weeding outfraudulent claims from true ones. It is the function of the finder of fact toascertain the truth; "the testimony of both parties will be extremelyvulnerable to impeachment at a trial on the grounds of bias, interest andprejudice. 1 7 Indeed, in Primes v. Tyler,"8 the Ohio Supreme Court heldthe Ohio guest statute to be unconstitutional despite the state's argumentthat it prevented fraudulent claims. In so holding, the court quoted from aNorth Dakota Supreme Court decision:In all other cases, we rely upon the standard remedies of perjury, the efficacyof cross-examination, the availability of pretrial discovery, and the goodsense of juries to detect false testimony if it should occur. We do not withdrawthe remedy from all injured persons in order to avoid a rare recovery basedupon false testimony.This reasoning is just as valid in interspousal suits as it was in guest-driversuits. 20 Another problem with the court's third rationale is thatinterspousal immunity is not necessary to protect insurance companies.Insurance companies can either exempt spouses from coverage 21 or raisethe premiums for such coverage.Since the Supreme Court of Ohio has continually refused to abolishinterspousal immunity in negligence actions, the onus is upon thelegislature to take action. There are two approaches open to the legislature.One approach would be to abolish the immunity only when the defendantis insured.22 The advantage of this approach is that the presence ofinsurance would minimize any adverse effect of the litigation on maritalharmony. Furthermore, since most drivers are insured, many of theinterspousal suits arising out of motor vehicle accidents could still bemaintained under this approach.A second approach is to abolish the immunity in all instances,regardless of insurance status. This approach is preferable. If one spousewishes to bring suit against the other spouse in the absence of insurance, itis unlikely that marital harmony exists. Prohibiting suit on the basis of17. Brooks v. Robinson, 259 Ind. 16, 22, 284 N.E.2d 794, 797 (1972),18. 43 Ohio St. 2d 195, 331 N.E.2d 723 (1975).19. Id. at 201,331 N.E.2d at 727, quotingJohnson v. Hasett, 217 N.W.2d 771,778 (N.D. 1974).20. As pointed out by the Supreme Court of New Jersey,it is ironic that the presence of insurance has spawned the second rationale . . . ofprotecting the insurance carriers against fraud and collusion. That rationale belies thepossibility that domestic harmony will be disturbed since its very premise is that theinterspousal relationship is so harmonious that fraud and collusion will result.Immer v. Risko, 56 N.J. 482, 489, 267 A.2d 481, 485 (1970).21. See generally Casey, The Trend of Interspousal and Parental Immunity-CakewalkLiability, 45 INs. COUNSEL J. 321 (1978). The author argues that such exclusions be enlarged to cover allrelatives of the insured.22. This approach is followed in Louisiana. Louisiana's direct action statute permits a suit byone spouse against the other's insurer. LA. REV. STAT. ANN. § 22:655 (West 1978). If the otherspouse isuninsured, however, interspousal immunity prohibits suit. Soirez v. Great American Ins, Co., 168So.2d 418 (La. App. 1964).[Vol. 40: 7711979] INTERSPOUSAL IMMUNITY 775interspousal immunity will only exacerbate marital disharmony. The onlyalternative presently open to the one spouse is to suffer damages with nohope of recovery. Under existing law in Ohio a spouse can bring suitseeking damages from the other spouse in contract and property law.There is no justification for interspousal immunity prohibiting such actionin negligent torts. Nor is there any justification for abolishing the immunityonly when the defendant is insured.Gary N. Sales23. In Ohio interspousal immunityattaches both at the time ofthe tort and at the time of the suit.In Varholla the court held that the immunity attaches when the married parties are living together ashusband and wife at the time of the alleged injury. 56 Ohio St.2d at 269, 383 N.E.2d at 889. InThomasv. Herron, 20 Ohio St. 2d 62,253 N.E.2d 772(1969), the court held that a negligent tort suit could not bemaintained between spouses presently living together for injuries sustained prior to marriage eventhough the action was filed 17 days before they were married.

The Need for Legislative Action to Abolish Interspousal Immunity: Varholla v. Varholla

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The Need for Legislative Action to Abolish Interspousal Immunity: Varholla v. Varholla

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