Luna Ex Rel. Lee v. Clayton

HARBISON, Justice,

dissenting.

I respectfully dissent for the reasons hereinafter stated.

*898 Unlike the majority, I do not view this case as one involving the dynamics of the common law or its ability to adapt to change. The matter, in my view, is simply one of statutory interpretation — in this instance the interpretation of statutes which have been consistently construed by this Court for many decades.

Further, I do not believe that it is tenable to limit actions of this sort to those involving wrongful death, at least if we are to adhere to our established interpretation of the Tennessee wrongful death statutes to the effect that they are “survival” statutes and not statutes creating a “new cause of action” in the beneficiaries. Heretofore it has been conceived that an action for wrongful death in this state, despite some ambiguity in the wording of the statutes, is an action brought just as if the deceased himself or herself were plaintiff. See Jones v. Black, 539 S.W.2d 123 (Tenn.1976); Memphis Street Ry. v. Cooper, 203 Tenn. 425 , 313 S.W.2d 444 (1958). 1

It is, therefore, inescapable that the Court in this case is permitting a wife to sue her husband for an intentional tort committed during marriage. Surely it would be untenable to hold that the stepson of the defendant in the present case could sue him for the wife’s death but to hold that she could not maintain an action had he simply put a bullet through her spinal cord and rendered her a permanent paraplegic. Further, if actions for personal injuries are to be permitted, then there is no reason not to allow actions for mental injuries such as intentional defamation, outrageous conduct, false arrest, malicious prosecution and the rest of the panoply of intentional torts. If this is permitted, then there is also little reason not to permit actions in negligence, although most of the states which have allowed this have had to redefine “negligence” so as to exclude ordinary household accidents and many other kinds of conduct which would ordinarily fall within the parameters of that concept.

Many of the reasons given for preserving and also most of the reasons given for abolishing marital immunity are, in my opinion, superficial if not specious. Marriage is the oldest of human institutions. Many of the reasons ascribed for its incidents are shrouded in antiquity. Nevertheless, as recently as one year ago this Court stated:

“Only a husband and wife . .. may own property as tenants by the entirety. Marriage is a unique status in the law, having rights, incidents and liabilities unlike any other.” Griffin v. Prince, 632 S.W.2d 532, 534 (Tenn.1982).

In my view the Married Women’s Emancipation statutes are not dispositive of this subject. The immunity was not gender-based or discriminatory as to sex. A husband could no more sue his wife than she could sue him. Certainly the Married Women’s Emancipation acts did not purport to confer upon him rights of action which did not theretofore exist.

This Court has always stated that there was no right of action in tort between two persons as to whom there was a valid subsisting marriage. In my view no reason other than marriage is needed to support the existence of the rule. Persons may not enter into marriage as they enter into an ordinary business contract. They must obtain a license and go through a solemn ceremony, involving the most personal and intimate of vows. So long as that relationship exists, in my opinion, actions in tort, judgments, executions and garnishments are foreign to the relationship, no matter how much it may deteriorate. There are ample remedies available for terminating a marriage which has become intolerable. In addition the laws of divorce, separate maintenance, marital support and the criminal laws contain remedies which will ordinarily afford adequate relief to persons having the legal status of being a party to a subsisting marriage.

I do not think that the institution of marriage will come to an end or be irrepa *899 rably damaged by permitting tort actions, intentional or negligent. Those who state that married persons are not in a different status from others, however, in my opinion are in error and need only examine the numerous statutes in this state on the subject. There are statutes dealing with preferences to spouses in connection with insurance proceeds, 2 exemption from creditors’ claims, 3 the holding of property as tenants by the entireties 4 and numerous others. All of these may be affected to one degree or another by permitting tort actions and judgments pursuant thereto between spouses. In my opinion, therefore, this is a subject entirely appropriate for the Legislature, and I do not consider that it is improper to adhere to well established precedent, particularly a decision as carefully considered as that of this Court in Hance v. Haun, 216 Tenn. 176 , 391 S.W.2d 621 (1965).

In that case the Court considered the identical statutes as those involved in the present case — that is, the Married Women’s Emancipation statutes and the wrongful death statutes. Once statutes have been interpreted by the courts, such interpretation should be adhered to unless found to be plainly erroneous. Nothing has changed in society in the eighteen years since flanee v. Haun , in my opinion, to justify an overruling of this decision.

Further, while we know nothing of the merits of this case, there is not necessarily much “justice” in permitting the stepson, through a tort judgment, to take all or a substantial part of the husband’s estate or to obtain a judgment against him which cannot be discharged in bankruptcy or otherwise. Under the allegations here the husband may not collect any insurance upon the life of his wife if he feloniously killed her, nor can he inherit from her 5 and, of course, he may be prosecuted criminally if he has committed an unjustifiable homicide.

I have real reservations, however, about the wisdom of permitting an action against him by her child of a former marriage, as a matter of common law. If the Legislature sees fit to permit such proceedings, then this clearly is its prerogative, but it will be done after full hearings and debates with due consideration of the many implications involved, and not from the narrow perspective of one case.

For these reasons I respectfully dissent.

. Although not necessarily prohibiting inter-spousal actions, statutes dealing with wrongful death give control of the right of action to the surviving spouse. T.C.A. §§ 20-5-109, -110.

. E.g., T.C.A. §§ 56-7-201 to -203.

. E.g., T.C.A. §§ 26-2-301 to -311; 30-901 to -914.

. T.C.A. § 36-602.

. T.C.A. § 31-117.