Record and brief — Bonkowsky v. Bonkowsky

oli

— a a

- Supreme Court, U.S.

ä ILED

81-2092 MAY 4 1982

No. et eee,

Supreme Court of the United States

October Term, 1981

HANNA BONKO WSK.

Petitioner,

VS.

OTTO BONKOWSKY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of the State of Ohio

Frep WEISMAN, Counsel of Record

WEISMAN, GOLDBERG & WEISMAN Co.,

L.P.A.

540 Leader Building

Cleveland, Ohio 44114

(216) 781-1111

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (214) 421-5047

QUESTIONS PRESENTED

I. Is Ohio’s Doctrine of Interspousal Tort Immunity Un-

constitutional and in violation of the Fourteenth

Amendment to the United States Constitution in that

it deprives spouses of equal protection under the law

without an appropriate governmental interest being

suitably furthered by the unequal treatment?

II. Is Ohio’s doctrine of Interspousal Tort Immunity Un-

constitutional and in violation of the Fourteenth

Amendment to the United States Constitution in that

it creates an irrebuttable presumption that denies due

process of law to spouses?

III

TABLE OF CONTENTS

r TOT OTT TO

I a atesdclemisnislialaabi

REE TET De aD OE ̃̃—

D . Ne

Constitution and Statutes Involved

e i aeerianiienininls

Reasons for Granting the Writ ..

I. Ohio's Doctrine of Interspousal Tort Immun-

ity is Unconstitutional and in violation of the

Fourteenth Amendment to the United States

Constitution in that it deprives spouses of

equal protection under the law without an ap-

propriate governmental interest being suitably

furthered by the unequal treatment

II. Ohio's Doctrine of Interspousal Tort Im-

munity is Unconstitutional and in violation of

the Fourteenth Amendment of the United

States Constitution in that it creates an irre-

buttable presumption that denies due process

of law to spouses es ä ů——D—ů

f Eee Se Se Sa Oe I ee ee nee

Appendix: i

Opinion of the Supreme Court of Ohio (February

r ———

Decision and Journal Entry of the Court of Appeals

r

Judgment Entry of the Common Pleas Court (March

r ̃ͤͤß....

Iv

Judgment Entry of the Supreme Court of Ohio

F .. 33

Judgment Entry of the Supreme Court of Ohio

, 34

TABLE OF AUTHORITIES

Cases

Eisenstadt v. Baird, 405 U.S. 438 (1972) ae

Glona v. American Guarantee & Liability Insurance

. ,,, +

Jimenez v. Weinberger, 417 U.S. 628 (1974) 6

Shapiro v. Thompson, 394 U.S. 618 (1969) 0.000000... 5

Vlandis v. Kline, 412 U.S. 441 (197 6

Zablocki v. Redhail, 434 U.S. 374 (1979) 5

Constitution and Statutes

Constitution of the United States, Fourteenth Amend-

% TTT 2, 3, 4, 5, 6

Constitution of Ohio, Section 2, Article!!! 2

Constitution of Ohio, Section 16, Article! 2

Ohio Revised Code Ann. 2307.09 2

Ohio Revised Code Ann. 2323.09 3

No.

Supreme Court of the United States

October Term, 1981

HANNA BONKOWSKY,

Petitioner,

vs.

OTTO BONKOWSKY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of the State of Ohio

OPINIONS BELOW

The Trial Court granted defendant’s Motion for Sum-

mary Judgment and entered judgment thereon which was

journalized March 24, 1980. The judgment is reproduced

in the Appendix infra, page 32.

The decision and opinion of the Court of Appeals of

Ohio was unreported, but is reproduced in the Appendix

infra, page 24.

The Opinion and Judgment of the Supreme Court of

Ohio is reported at 69 Ohio St. 2d 152 (February 10, 1982)

and is reproduced in the Appendix infra, pages 7 and 33.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. §1257 (3).

CONSTITUTION AND STATUTES

1. Constitution of the United States, Amendment 14,

81.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

2. Ohio Constitution, Art. 1, §16.

All courts shall be open, and every person, for an

injury done him in his land, goods, person, or reputation,

shall have remedy by due course of law, and shall have

justice administered without denial or delay.

3. Ohio Constitution, Art. 1, §2.

All political power is inherent in the people. Govern-

ment is instituted for their equai protection and benefit,

and they have the right to alter, reform, or abolish the

same, whenever they may deem it necessary; and no spe-

cial privileges or immunities shall ever be granted, that

may not be altered, revoked or repealed by the general

assembly.

4. Ohio Revised Code, Ann. §2307.09.

A married woman may sue and be sued as if she were

unmarried, and her husband may be joined with her only

when the cause of action is in favor of or against both.

3

5. Ohio Revised Code, Ann. §2323.09.

When a married woman sues or is sued, proceedings

shall be had and judgement shall be rendered and enforced

as if she were unmarried. Her property and estate is

liable for a judgement against her, but is entitled to the

benefits of all applicable exemptions provided by statute.

STATEMENT OF THE CASE

The doctrine of interspousal immunity with its in-

herent differential treatment of spouses and non-spouses

violates the equal protection clause of the Fourteenth

Amendment of the U.S. Constitution without reason-

ably advancing or furthering a legitimate state interest.

The state interest of promoting marital harmony was ad-

vanced by the Ohio Supreme Court as the basis for dis-

allowing a negligence action between spouses in the State

of Ohio.

The argument that perpetuation of the doctrine of

interspousal immunity will promote marital harmony is

specious, unfounded and has been rejected by the majority

of other jurisdictions in the United States of America.

The action was originally commenced by Hanna Bon-

kowsky against her husband Otto Bonkowsky. The case

involved serious and permanent injuries and damages

sustained by Hanna as a result of Otto’s negligence in

operating the automobile his wife occupied. The trial

court dismissed the action on the basis of the doctrine of

interspousal tort immunity which denies an injured spouse

from asserting a negligence claim against his or her negli-

gent spouse.

The Court of Appeals, Eighth Judicial District and

the Ohio Supreme Court affirmed the trial court’s ruling

4

and upheld the doctrine. Yet in both opinions of the

reviewing courts concurring and dissenting opinions care-

fully and repeatedly announced that serious constitutional

issues had been raised by the majority’s ruling. The dis-

senting opinions of the Ohio Supreme Court criticized this

doctrine which denies a wife or husband a cause of action

solely on the basis of their marital status. This constitu-

tional issue was first advanced at the trial court and again

in the Court of Appeals and the Supreme Court of Ohio.

REASON FOR GRANTING THE WRIT

I. Ohio's Doctrine of Interspousal Tort Immunity is

Unconstitutional and in violation of the Fourteenth

Amendment to the United States Constitution in

that it deprives spouses of equal protection under

the law without an appropriate governmental in-

terest being suitably furthered by the unequal

treatment.

A married woman (or man) is a person and an ind

vidual and she/he is is entitled to the same protection

of the law as other individuals regardless of ancient and

outdated statements of the common law. This case brings

to light fundamental rights involved in family relation-

ships. The common law policy of the State of Ohio denies

a class of people relief because of the existence of the

marital relationship and consequently it infringes upon

fundamental rights of family members.

In Glona v. American Guarantee & Liability Insurance

Co., 391 U.S. 73 (1968) the Court suggested that a classi-

fication based on marital status might be unconstitutional.

Also, the Court in Eisenstadt v. Baird, 405 U.S. 438 (1972)

held a Massachusetts statute that made criminal the giving

of contraceptives to unmarried people unconstitutional.

5

This dissimilar treatment granted married people vis-a-vis

unmarried persons was held to violate the Equal Protec-

tion Clause.

Marriage and marital harmony are deserving of special

recognition and protection. However, it is obvious that

no court of law in Ohio or any other jurisdiction can

promote or preserve harmony. Harmony either exists or

it doesn’t. Divorce is commonplace in our society (and

in Ohio) notwithstanding judicial constraint on interspousal

actions. The major factor spurring most marriage failures

is economics. If Ohio wishes to advance its state’s policy

of harmony it can best increase the likelihood of same

by allowing the economic strain placed on the family

budget as a result of personal injury actions to be trans-

ferred to a liability insurance carrier who can best incur

same.

Both the promotion of marital harmony and the pre-

vention of fraud on insurance companies can be attained

in a less intrusive manner than interspousal immunity.

The doctrine is clearly overinclusive because it prohibits

spouses who would not divorce or commit fraud from

bringing an action against the other spouse.

This infringement violates the equal protection clause

of the United States Constitution because there exists no

legitimate compelling state interest and/or there are ob-

viously narrower means to achieve that interest. Zablocki

v. Redhail, 434 U.S. 374 (1978); Shapiro v. Thompson,

394 U.S. 618 (1969).

II. Ohio’s Doctrine of Interspousal Tort Immunity is

Unconstitutional and in violation of the Fourteenth

Amendment to the United States Constitution in

that it creates an irrebuttable presumption that

denies due process of law to spouses.

This doctrine further raises due process sues as well.

By affirming the Court of Appeals of Ohio, the highest

Court in the State of Ohio has totally denied any spouse

the right to be heard in a negligence action against his

or her spouse.

This denial creates an irrebuttable presumption that

the spouse and his or her mate will perpetrate a fraud

on the Court and/or that the marriage will fail if the

action is allowed. This shutting of the Courts is an irre-

buttable presumption and as such denies due course of

law to a spouse who wishes to sue for injuries caused

by his or her spouse’s negligence. See Vlandis v. Kline,

412 U.S. 441 (1973); Jimenez v. Weinberger, 417 U.S. 628

(1974).

CONCLUSION

The Supreme Court of Ohio has deprived Petitioner

of equal protection of the law and due process of law

under the Fourteenth Amendment of the United States

Constitution. Petitioner urges this Court to grant this

petition for a Writ of Certiorari to review the decision

of the Ohio Supreme Court in this case.

Respectfully submitted,

FRED WEISMAN, Counsel of Record

WEISMAN, GOLDBERG & WEISMAN Co.,

L.P.A.

540 Leader Building

Cleveland, Ohio 44114

(216) 781-1111

Counsel for Petitioner

puedo

APPENDIX

OPINION OF THE SUPREME COURT OF OHIO

(Decided February 10, 1982)

No. 81-270

THE SUPREME COURT OF THE STATE OF OHIO

Tue STaTE or Omo, City or CoLuMBusS

HANNA BONKOWSKY,

Appellant,

VS.

OTTO BONKOWSKY,

Appellee.

APPEAL From the Court of Appeals

for Cuyahoga County

This matter brings into issue the viability of Ohio’s

existing principle of interspousal tort immunity. The

facts giving rise to this question are not controverted.

Appellant, Hanna L. Bonkowsky, and appellee, Otto R.

Bonkowsky, are wife and husband, respectively. While

on an automobile trip in the state of Vermont, appellee

was driving and appellant was a passenger in the car

when an accident occurred, and appellant was injured.

Appellant filed an action in the Court of Common Pleas

of Cuyahoga County against appellee, claiming negligence

on the part of the latter. The parties stipulated to the

existence of automobile liability insurance, and that the

policy did not expressly bar such an action. The appellee

moved for summary judgment, contending that interspousal

immunity barred the claim despite the fact that the law

of the state of Vermont would allow such an action. The

Court of Common Pleas granted such motion, and the

Court of Appeals affirmed upon the basis of Ohio’s pre-

viously pronounced position on interspousal immunity.

The cause is now before this court pursuant to the

allowance of a motion to certify the record.

Messrs. Weisman, Goldberg & Weisman, Mr. Fred

Weisman and Mr. Howard W. Mishkind, for appellant.

Messrs. Kitchen, Messner & Deery and Mr. Charles W.

Kitchen, for appellee.

Per Curiam. Appellant raises the previously reviewed

issues that interspousal immunity policy discriminates

against spouses without a valid or rational purpose, and

deprives them of equal protection of the law under Sec-

tion 2, Article I of the Ohio Constitution and under the

Fourteenth Amendment to the United States Constitution.

The additional argument raised by appellant is that such

policy should not be followed in this state where there

is shown to be liability insurance present under which

policy the spouse’s claims may be satisfied.

The policy in Ohio relative to the principle of inter-

spousal immunity has most recently been reaffirmed in

Varholla v. Varholla (1978), 56 Ohio St. 2d 269, wherein

the majority of this court (Justice William B. Brown, dis-

senting), at pages 269-270, stated:

“The same issue was before this court in Lyons v.

Lyons (1965), 2 Ohio St. 2d 243, where we held that

such actions were barred by interspousal immunity. Our

reasons were threefold: (1) the immunity promotes mar-

ital harmony by discouraging otherwise litigious spouses

from pursuing real or fanciful claims to the detriment of

the family unit; (2) the immunity prevents fraud and

9

collusion at the expense of tactically disadvantaged insur-

ance companies; and (3) as this involves a matter of public

policy, changes in this area must emanate from the Gen-

eral Assembly, not the courts.”

Relative to the argument that the constitutionality of

this principle should be viewed in the same manner as

this court had determined the unconstitutionality of R. C.

4515.02, the guest statute in Ohio, this court stated at

page 270, in the opinion:

“We think it sufficient to state that the interspousal

immunity doctrine, with its inherent differential treatment

of spouses and non-spouses, reasonably relates to the legit-

imate state interest of fostering marital harmony and pre-

venting fraud and collusion. The difference between this

doctrine and R. C. 4515.02 lies in the higher state concern

for regulating marriage and the greater potential for fraud

stemming from the marital relationship, where an insured

defendant spouse stands to benefit personally from losing

a lawsuit instituted by his spouse. * * *”

Appellant argues here, as appeliant did in Varholla,

that the reasons supportive of the basic principle of in-

terspousal tort immunity are no longer viable in Ohio.

Answering, this court, in Varholla, held that appellant’s

contention could not be accepted “in disregard of clear

precedent.”

We are in agreement with the thought that legal

precedent should not be a straitjacket to an appropriate

change of the legal policies of this state, especially where

those policies are estabilshed by the common law pro-

nouncements of this court. However, where this court

has recently reviewed and spoken upon the viability of

such policies, precedent of such pronouncements should

be given a great deal of weight.

10

This is the stance of the issues raised herein chal-

lenging the doctrine of interspousal immunity. Having

recently considered these policies in Varholla, and since

nothing of import affecting that holding has subsequently

taken place—other than the relatively short passage of

time—we shall adhere to our previously pronounced po-

sition.

Additionally, we feel it necessary to point out that

the fact that an insurance policy was in existence here

is not a distinguishing factor in this case, as compared

with Lyons or Varholla, supra. As previously noted, this

court, in Varholla, discussed the interspousal immunity

doctrine specifically in the context of an insured defen-

dant spouse. In like manner, in Lyons, the court made

specific reference to the involvement of insurance where,

at page 245, it was stated: “There is the real danger

of fraud or collusion between the spouses in such suits

against each other, where insurance is involved.”

Based on the foregoing, the judgment of the Court of

Appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C. J., Lochen, HoLMeEsS and KRUPANSKY,

JJ., concur.

W. Brown, SWEENEY and C. Brown, JJ., dissent.

Locuer, J., concurring. In order to analyze the con-

troversy surrounding the doctrine of interspousal immu-

nity, one need only consider one simple question: is the

doctrine viable in today’s society? I agree with the opin-

ion of the court that the doctrine is viable. To hold other-

wise would violate the integrity of the family. I also

concur in the judgment and reasoning in that opinion,

but I wish to expand on one point.

11

During the past quarter century, or so, this country

has endured numerous threats to the integrity of her fun-

damental institutions. Critics of the doctrine of inter-

spousal immunity have been at the vanguard of an un-

relenting assault upon the family as an institution. The

family is rebounding, however.

Critics of the doctrine focus almost exclusively on

compensation for injuries. Their argument presumes that

insurance will satisfy all needs. Yet, they never explain

why suits between uninsured spouses are beneficial. Like-

wise, they ignore the capacity of the insurance industry

to fill any gaps in coverage and prevent familial economic

disasters through first-party health, life and income in-

surance.

These same critics contend that a failure to provide

insurance compensation for injuries places a potentially

unbearable economic strain on the family unit. This argu-

ment, however, presumes that spouses remain in economic

unity, or at least mutuality. Under either interpretation,

it would appear that society has indeed changed very little.

We should not allow ourselves to presume that ever:

aspect of the so-called “social experiment” of the last

two or three decades will endure into the future.“ As a

people, Americans are getting back to the basics, The

family is the basic social unit; and a husband and a wife

are the beginnings of a family. As long as that is the

case, we should find some means other than interspousal

litigation to compensate husbands and wives for their

injuries.

CELEBREZZE, C.J., concurs in the foregoing concurring

opinion.

1. Note that most of the cases abolishing the doctrine of

interspousal immunity were decided within the last 20 years.

12

_ Wiuu1am B. Browy, J., dissenting. The majority's de-

cision in this case today should come as a great surprise

and be of great concern to the people of Ohio, especially

to the female contingent. In upholding the doctrine of

interspousal immunity, the majority seemingly gives

credence to the theory upon which this doctrine was es-

tablished, namely that a husband and wife are one. (See,

generally, 1 Blackstone’s Commentaries 442 [1765].) This

unity principle is a legal fiction which has long been used

to preclude a wife from enjoying the same full legal rights

as are afforded her husband. This principle is based on

the belief that a wife is the property of her husband, and

is totally subordinate to and dependent upon him. In a

spirit of equality, the General Assembly passed the Mar-

ried Women’s Act which to a large extent put the wife on

an equal legal footing with her husband. The time is

long overdue that this court as well recognize the legal

individuality of a wife. By abrogating interspousal im-

munity, this court would emancipate all spouses from

the vestiges of this archaic doctrine, and preserve to all

every right which they had prior to marriage. I have read

the majority opinion, and because I believe it represents an

archaic viewpoint based on hollow and unenlightened rea-

soning, I must respectfully register my strong disapproval.

I previously stated the basis for my objections to the

retention of interspousal immunity in my dissent in Var-

holla v. Varholla (1978), 56 Ohio St. 2d 269, 271-275.

Briefly, I found the following four major flaws in the

majority’s reasoning. First, the argument that abolishment

of interspousal immunity is a legislative rather than a

judicial task is not now nor has it ever been persuasive.

The doctrine of interspousal immunity had its origins in

common law, and as a judicially created doctrine, it may

be judicially abolished. (Sears v. Cincinnati [1972], 31

Ohio St. 2d 157, 161, everruling paragraph one of the

13

syllabus in Hyde v. Lakewood [1965], 2 Ohio St. 2d 155;

Muskopf v. Corning Hospital Dist. 1961], 55 Cal. 2d 211,

359 P. 2d 457; Molitor v. Kaneland Community United

District No. 302 [1959], 18 Ill. 2d 11, 25, 163 N.E. 2d 89.)

Next, the rationale underlying the claim that inter-

spousal immunity prevents fraud and collusion is indeed

strained. It is unlikely that “a wife’s love for her hus-

band is such that she is more likely to bring a false suit

against him then a genuine one,” (Prosser on Torts [4 Ed.]

863, Section 122) and a similar collusive argument was

unanimously rejected by this court when it declared Ohio’s

guest statute unconstitutional in Primes v. Tyler (1975),

43 Ohio St. 2d 195. In addition, there are numerous safe-

guards against fraudulent claims built into the judicial

system.“

Thirdly, the justification of interspousal immunity on

the grounds that it promotes marital harmony is specious

and unfounded. “To conclude that forbidding spouses to

sue one another promotes domestic peace is a non sequitur.

Marital harmony either exists or it does not. The har-

monious marriage will not be hurt by allowing one spouse

to benefit from the insurance coverage of the other; and

the unhappy marriage will not be helped by denying legal

rights to an already disgruntled spouse.” Varholla, supra,

at page 273.

Finally, in my opinion, interspousal immunity is un-

constitutional and should hence be abolished. The same

reasoning used by this court to declare Ohio’s guest

statute unconstitutional in Primes, supra, is also applicable

to this cause.

“Given the fact that spouses denied the right to sue

under the interspousal immunity doctrine are discriminated

2. Consider, for example, trial devices such as pretrial dis-

covery and cross-examination, as well as the deterrent effect

of a perjury charge.

14

against in the same manner and for equally unconvincing

reasons as are friends denied the right to sue under a

guest statute, I submit that the doctrine of interspousal

immunity violates the Equal Protection Clause of the

United States Constitution.

“Interspousal immunity also creates a conclusive pre-

sumption which, like the one created by the guest statute,

unconstitutionally denies due process.

% * [PJermanent irrebuttable presumptions have

long been disfavored under the Due Process Clauses of

the Fifth and Fourteenth Amendments,’” especially when

they are not necessarily or universally true in fact, and

when the state has reasonable alternative means of making

the crucial determination.’ Vlandis v. Kline (1973), 412

U.S. 441, 446 and 452.” Id., at page 275.

I continue to adhere to and advocate these positions,

and, at this time, I would like to reemphasize and add

a few points.

The majority opinion in this case stresses that the re-

tention of interspousal immunity will preserve marital

harmony. Yet, from a realistic and practical point of view,

it is difficult to see just how interspousal immunity is

effective in fostering and reinforcing domestic tranquility.

In recent years, the cost of medical treatment and hos-

pital bills for an injured survivor of a negligent act has

increased greatly. This factor, coupled with the probable

loss of income and services if the injury to the spouse is

serious, will likely cause financial strains which are be-

yond the capabilities of the average family. These financial

burdens can be equally if not more troubling than the

instigation of a lawsuit for negligence. In light of the

fact that financial hardship is a major factor in divorce,’

See Cutright, Income and Family Events: Marital Sta-

bits, 33 J. Marr. & Fam. 291 (1971).

15

denying any recovery whatsoever to a spouse who has

perhaps been crippled for life due to the negligence of

his or her mate, especially where recovery can be had

from an insurance company, is more likely to jeopardize a

marriage vather than to safeguard it.

In Ohio, both statutory and case law permit spouses to

sue each other. Ohio’s Married Women’s Property Act“

allows suits between spouses in contracts and personal

property claims. Moreover, in Damm v. Elyria Lodge No.

465 (1952), 158 Ohio St. 107, this court permitted a wife

of a deceased member of a voluntary association to main-

tain an action in tort against the association for a tort

committed against her during her husband's lifetime. In-

terspousal immunity has also been abrogated for inter

tional misconduct. Kobe v. Kobe (1978), 61 Ohio App. 2d

67. It is inconceivable that an action for personal injury

would disrupt a marriage to any greater degree than would

an action for conversion or in contract.

Furthermore, upholding the doctrine of interspousal

immunity on the basis of the possibility of fraud and col-

lusion belies the centuries-old trust in our jury system. I,

for one, am confident that our judicial system is well

equipped to sift out fraudulent claims.

Likewise, the insurance industry is competent to deal

u collusive claims. To believe that there is something

called a “disadvantaged” insurance company is a far bigger

myth than has ever been perpetrated under the doctrine

of stare decisis.” In my 45 years as a lawyer and judge,

4. R. C. 2307.09 et seq.

5. The abrogation of interspousal immunity will not leave

insurance companies without recourse. Insurance companies can

either exempt spouses from coverage (see Casey, The Trend of

Interspousal and Parental Immunity - Cakewalk Liability, 45

Ins. Counsel J. 321 (1978), or raise the premiums for such cover-

age.

16

I have noticed that insurance companies have the best

lawyers, the best investigators and the best referral sys-

tems. There is little doubt that insurance companies are

more than able to protect themselves against fraudulent

claims.

I agree with the assessment of the court in Immer v.

Risko (1970), 56 N.J. 482, 495, 267 A. 2d 481, that “[ijn

a day when automobile accidents are unfortunately becom-

ing so frequent and injuries suffered by passengers are

often so severe, it seems unjust to deny the claims of many

because of the potentiality for fraud by the few.” Indeed,

such a potentiality did not restrain this court from unani-

mously holding the guest statute unconstitutional. See

Primes v. Tyler, supra. Nor did it stop this court from

abrogating parental immunity. See Signs v. Signs (1952),

156 Ohio St. 565. And this unreasonable and minimal fear

should not now deter this court from abolishing inter-

spousal immunity.

Finally, the doctrine of interspousal immunity runs

afoul of the goal of tort law. The major goal of tort law

is to compensate the victim rather than to punish the tort-

feasor.“ Marital status should not, and cannot, be de-

terminative of the remedy available to redress an injury.

This court’s persistence in preserving interspousal

immunity is not shared by other jurisdictions. Courts are

continuing to abandon the rule of interspousal immunity

with dispatch, and it remains operative only in a minority

of jurisdictions.’ By virtue of this decision of this court

6. Prosser on Torts (4 Ed.), page 6.

7. The following states have abolished interspousal tort

immunity in — actions similar to the instant action.

This list has e even since the Court of Appeals’ decision

herein, and now totals 31 states, as follows:

(Continued on following page)

17

Footnote continued—

Alabama: Penton v. Penton (1931), 223 Ala. 282, 135 So.

481; Alaska: Cramer v. Cramer (Alaska 1963), 379 P. 2d 95;

Arkansas: Leach v. Leach (1957), 227 Ark. 599, 300 S.W. 2d 15;

California: Klein v. Klein (1962), 58 Cal. 2d 692, 376 P. 2d 70,

26 Cal. Rptr. 102; Colorado: Rains v. Rains (1935), 97 Colo. 19,

46 P. 2d 740; Connecticut: Bushnell v. Bushnell (1925), 103

Conn. 583, 131 A. 432; Idaho: Lorang v. Hays (1949), 69 Idaho

440, 209 P. 2d 733; indiana: Brooks v. Robinson (1972), 259

Ind. 16, 284 N.E. 2d 794; Iowa: Shook v. Crabb (Iowa 1979), 281

N.W. 2d 616; Kentucky: Brown v. Gosser (Ky. 1953), 262 S.W.

2d 480; Maine: MacDonald v. MacDonald (Me. 1980), 412 A. 2d

71; Massachusetts: Lewis v. Lewis (1976), 370 Mass. 619, 351

N.E. 2d 526; Michigan: Hosko v. Hosko (1971), 385 Mich. 39, 187

N.W. 2d 236; Minnesota: Beaudette v. Frana (1969), 285 Minn.

366, 173 N.W. 2d 416; Nebraska: Imig v. March (1979), 203 Neb.

537, 279 N.W. 2d 382; Nevada: Rupert v. Stienne (1974), 90

Nev. 397, 528 P. 2d 1013; New Hampshire: Morin v. Letourneau

(1959), 102 N.H. 309, 156 A. 2d 131; New Jersey: Immer v. Risko

(1970), 56 N.J. 482, 267 A. 2d 481; New Mexico: Maestas v.

Overton (1975), 87 N.M. 213, 531 P. 2d 947; New York: N. Y.

Gen. Oblig. Law (McKinney 1978), Section 3-313; North Caro-

lina; Roberts v. Roberts (1923), 185 N.C. 566, 118 S.E. 9; North

Dakota: Fitzmaurice v. Fitzmaurice (1932), 62 N.D. 191, 242

N.W. 526; Oklahoma: Courtney v. Courtney (1938), 184 Okla.

395, 87 P. 2d 660; Rhode Island: Digby v. Digby (R.I. 1978), 388

A. 2d 1; South Carolina: Pardue v. Pardue (1932), 167 S.C. 129,

166 S.E. 101; South Dakota: Scotvold v. Scotvold (1941), 68 S.D.

53, 298 N.W. 266; Vermont: Richard v. Richard (1973), 131 Vt.

98, 300 A. 2d 637; Virginia: Surratt v. Thompson (1971), 212

Va. 191, 183 S.E. 2d 200; Washington: Freehe v. Freehe (1972),

81 Wash. 2d 183, 500 P. 2d 771; West Virginia: Coffindaffer v.

Coffindaffer (W. Va. 1978), 244 S.E. 2d 338; Wisconsin: Wait v.

Pierce (1926), 191 Wis. 202, 209 N.W. 475.

There is a long list of well-recognized scholars and com-

mentators who have urged legal equality for spouses for years.

The list includes the following:

Prosser on Torts (4 Ed.), Section 122; 1 Harper & James,

The Law of Torts, Section 8.10 (1956); Notes, 28 Clev. St. L. Rev.

115 (1979); Comments, The Impact of Abrogation of Interspousal

Immunity in Nebraska, 13 Creighton L. Rev. 423 (1979); Case

Notes, Domestic Relations—Abrogation of Interspousal Immunity

—An Analytical Approach, 19 De Paul L. Rev. 590 (1970); Re-

cent Decisions, 13 Duq. Univ. L. Rev. 156 (1974); Greenstone,

Abolition of Intrafamilial Immunity, 7 The Forum 82 (1972);

McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.

L. Rev. 1030 (1930); Notes, Litigation Between Husband and

Wife, 79 Harv. L. Rev. 1650 (1966); Comments, 36 Mont. L. Rev.

251 (1975); Comments, 12 New Eng. L. Rev. 333 (1976); Recent

Dev., 27 Ohio St. L. J. 550 (1966), 40 Ohio St. L.J. 771 (1979);

Comments, 3 Rut.-Cam. L.J. 183 (1971); Case Comments, 11 Suf-

tists) Rev. 1214 (1977); Comment, 47 Tennessee L. Rev. 123

18

today, Ohio’s law will continue to march in a lockstep

toward the judicial philosophy of the Victorian era.

The majority opinion rationalizes this backward march

on the basis of stare decisis. As to the fundamental na-

ture and the importance of stare decisis, there is no doubt.

It lies at the heart of the common law. By this rule, our

society has preserved the best of the wisdom and the

morality of past ages. Wisdom and morality, however,

are not immutable universals of the scholastic philosophers;

they are to be modified by each new generation.

“When, however, a rule of iaw is judge-made, and the

reasons for its use have vanished, the court should not

perpetuate it until petrification. A rule that has outlived

its usefulness should be changed. Such an approach to

stare decisis was urged by Justice Cardozo in his outstand-

ing book, The Nature of the Judicial Process, pp. 150-152:

“ ‘But I am ready to concede that the rule of adherence

to precedent, though it ought not to be abandoned, ought

to be in some degree relaxed. I think that when a rule,

after it has been duly tested by experience, has been found

to be inconsistent with the sense of justice or with the

social welfare, there should be less hesitation in frank

avowal and full abandonment. We have had to do this

sometimes in the field of constitutional law. Perhaps we

should do so oftener in fields of pr vate law where con-

siderations of social utility are not so aggressive and

insistei.t. There should be gre .ter readiness to abandon

an untenable position when the rule to be discarded may

8. While the X pepe that it is bound by stare

decisis to uphold the e of interspousal immunity, it is in-

teresting to note that it was not until 1965 in Lyons v. Lyons, 2

Ohio St. 2d 243, that this court first explicitly recognized inter-

spousal immunity. See, generally, Sullivan, Intra-Family Im-

munity end the Law of Torts in Ohio, 18 W. Res. L. Rev. 447

1

19

not reasonably be supposed to have determined the conduct

of the litigants, and particularly when in its origin it was

the product of institutions or conditions which have gained

a new significance or development with the progress of the

years. In such circumstances, the words of Wheeler, J.,

in Dwy v. Connecticut Co., 89 Conn. 74, 99 (92 A. 883, L.R.A.

1915E, 800, Ann. Cas. 1918D, 270), express the tone and

temper in which problems should be met:

That court best serves the law which recognizes

that the rules of law which grew up in a remote generation

may, in the fullness of experience, be found to serve an-

other generation badly, and which discards the old rule

when it finds that another rule of law represents what

should be according to the established and settled judgment

of society, and no considerable property rights have become

vested in reliance upon the old rule. It is thus great writers

upon the common law have discovered the source and

method cf its growth, and in its growth found its health

and life. It is not and it should not be stationary. Change

of this character should not be left to the Legislature.”’”

Thacker v. Bd. of Trustees of Ohio State Univ. (1973), 35

Ohio St. 2d 49, 70-71 (William B. Brown, J., dissenting.’

The doctrine of stare decisis must not be so narrowly

pursued that the body of common law is forever encased

in a straightjacket. As was stated in Cleveland Elec. U-

luminating Co. v. Pub. Util. Comm. (1976), 46 Ohio St. 2d

105, 119, fn. 8, “‘[t]his court is more accustomed to detecting

and correcting the errors of others than its own. It is to

be hoped that we will always remain willing to correct

them whether found in either place.” It is unfortunate that

this court has unblinkingly kept its gaze to the past, has

9. Indeed this court found no need to defer to the General

Assembly, for example, when it abrogated charitable hospital

immunity in Avellone v. St. John’s Hospital (1956), 165 Ohio St.

467 or governmental immunity for municipelity-owned hospitals

in Sears v. Cincinnati (1972), 31 Ohio St. 2d 157.

29

failed to see the error in its way and has declined to give

the doctrine of interspousal immunity the quick burial it

so rightfully deserves.

SWEENEY and C. Brown, JJ., concur in the foregoing

dissenting opinion.

Cuirrorp F. Brown, J., dissenting. For the reasons so

perspicaciously expressed by Justice William B. Brown in

his dissent in Varholla v. Varholla (1978), 56 Ohio St. 2d

269, at pages 271-275; in support of the abolition of the in-

terspousal immunity rule in negligence actions, I dissent.

As in Varholla, this court again asserts the same out-

moded reasoning for the preservation of interspousal im-

munity, namely, (1) promotion of marital harmony; (2)

prevention of fraud and collusion “‘at the expense of

tactically disadvantaged insurance companies, and (3)

the belief that any change in interspousal immunity must

emanate from the General Assembly. These reasons are

created by a judiciary out of touch with the realities of

modern life. Each has been thoroughly analyzed and

demolished in the Varholla dissent.

The right of the wife to bring other legal actions against

her husband reveals the hypocrisy of the claimed advance-

ment of marital harmony through interspousal immunity in

negligence actions. There is no sound reason to permit a

wife to sue her husband for money loaned, see Hart v.

Sarvis (1894), 3 N.P. 316, or for damages for injuries in-

tentionally inflicted, see Kobe v. Kobe (1978), 61 Ohio

App. 2d 67, and to deny the same spouse her right to

maintain a tort action against her husband for his negli-

gence, especially when he procured insurance to protect

himself for that very purpose. If marital harmony is the

purpose of the immunity rule then the wife should have

no right to bring any legal action against her husband.

Domestic harmony and tranquility will not be dis-

rupted to any greater degree by a demage action of the

21

wife against her husband for negligently causing her in-

jury than it would by civil action in ejectment, partition,

contract or intentional tort. Klein v. Klein (1962), 58 Cal.

2d 692, 376 P. 2d 70; Shook v. Crabb (Iowa 1979), 281 N.W.

2d 616; Coffindaffer v. Coffindaffer (W. Va. 1978), 244 S.E.

2d 338; Freehe v. Freehe (1972), 81 Wash. 2d 183, 500 P.

2d 771; Rupert v. Steinne (1974), 90 Nev. 397, 528 P. 2d

1013; Immer v. Risko (1970), 56 N.J. 482, 267 A. 2d 481.

On the contrary, the denial of a just remedy to the injured

spouse against her husband in a negligence action will

adversely affect marital harmony.“

The second reason for interspousal immunity ad-

vanced in the Varholla case, i.e., to prevent fraud and col-

lusion “ ‘at the expense of tactically disadvantaged insur-

ance companies.“ borders on the absurd. The investiga-

tive tools and skilled legal counsel available to insurance

companies, along with discovery and trial procedures de-

signed to eliminate surprise and reveal all the facts (e.g.

Civ. R. 26 through 37, 56), will easily meet the challenge

of spurious or fraudulent claims. These same factors negate

any claim that insurance companies are “tactically dis-

advantaged.” To conclude otherwise evinces a facility to

remain unaware of the abilities of our judges and jurors

and the realities of our adversary system. MacDonald v.

10. The marital harmony contention evaporates when one

considers the list of 31 judicially progressive states which have

abolished interspousal immunity in negligence actions. See dis-

senting opinion of Justice William B. Brown, supra, at fn. 7.

11. The fraud and collusion reason presupposes that spouses

are dishonest when the injured spouse claims compensation from

the negligent spouse and his insurer. Yet, if in a later accident

the same negligent spouse injures his sister, that sister is not

barred by any immunity rule from recovering damages from

him. If fraud and collusion is not urged to bar recovery by a

sister, it follows that sisters are more honest and therefore less

likely to perpetrate fraud than wives. This assumption brings to

mind a quote from Charles Dickens: If the law sup

that, said Mr. Bumble, ‘the law is a ass, a idiot.” Oliver Twist,

Chapter 51. These words may well be wiser than all of the legal

precedent cited in support of the interspousal immunity rule.

22

MacDonald (Me. 1980), 412 A. 2d 71; Merenoff v. Merenoff

(1978), 76 N.J. 535, 388 A. 2d 951; Beaudette v. Frana

(1969), 285 Minn. 366, 173 N.W. 2d 416; Brown v. Gosser

(Ky. 1953), 262 S.W. 2d 480; Immer v. Risko, supra; Cof-

findaffer v. Coffindaffer, supra.

The third reason advanced for interspousal immunity,

that the change abolishing it must be made by the General

Assembly, is an abdication of the judicial function and

completely without merit. Since the courts created the

interspousal immunity doctrine, the courts can abolish it.

Varholla, supra, at page 272, citing therein Sears v. Cin-

cinnati (1972), 31 Ohio St. 2d 157. See, also, Lewis v.

Lewis (1976), 370 Mass. 619, 351 N.E. 2d 526; Burns v.

Burns (1974), 21 Ariz. App. 337, 519 P. 2d 190; Shook v.

Crabb, supra.”

12. The apt words of the concurring judges of the Court of

Appeals in this case concerning suggested changes in the inter-

spousal immunity doctrine should be heeded. Judge Day in-

cisively stated:

“Were there no writing on the slate I would not follow a

spousal immunity — which seems to me medieval, particu-

larly in an insured case

“Accordingly, my concurrence is reluctant. The principles

announced in Justice William Brown’s dissent seem to me to

represent the logical, and incidentally, majority view in the

country. „ „ „„

Judge Patton pointedly and succinctly stated:

„I have examined the reasoning set forth by the Ohio

Supreme Court in Varholla v. Varholla (1978), 56 Ohio St. 2d

269, and I find it most difficult to rationalize the overturning of

the ‘guest statute’ and the preservation of the interspousal im-

munity doctrine.

“* * * The original purposes for the doctrine were laudable

but they have become archaic in light of the sophisticated ability

of insurance companies, the refinement of court room evidentiary

processes, and the social patterns of society.”

We should also heed our own advice conce stare decisis

as set forth in Cleveland Elec. Illuminating Co. v. Pub. Util. Comm.

(1976), 46 Ohio St. 2d 105 at page 119, fn. 8, where we stated:

(Continued on following page)

23

I see no reason to preserve interspousal immunity,

based on any statement such as, “Having recently con-

sidered these policies in Varholla and since nothing of im-

port affecting that holding has subsequently taken place—

other than the relatively short passage of time—we shall

adhere to our previously announced position.“ On the

contrary, as I pointed out in my concurring opinion in

Shroades v. Rental Homes (1981), 68 Ohio St. 2d 20, at

page 28: “Stare cscisis does not mean that a decision

of this court cannot be modified or overruled in the near

or distant future ‘where no additional relevant factors are

presented which would alter our prior pronouncement on

the subject.’”

Stare decisis should never be used as an excuse to avoid

overruling a judicial precedent only a few days or weeks

old if the interests of justice require it. Indeed, justice

is the only purpose for which courts exist.

Varholla, supra and Lyons v. Lyons (1965), 2 Ohio St.

2d 243, never served the purpose of justice. They should

never have been the law and they deserve to be over-

ruled at the earliest possible moment.

W. Brown and Sweeney, JJ., concur in the foregoing

dissenting opinion.

Footnote continued—

“This opinion has been a lengthy one. Its intent was to

make fully clear why this court today overrules an opinion ren

dered without dissent — a year ago. This court is more ac-

customed to detecting and correcting the errors of other than

its own. It is to be hoped that we will always remain willing

to correct them whether found in either place”

13. The decision today retaining interspousal immunity be-

cause this court reiterated 11 in 1978 in Varholla is maintaining

the status quo to the point of sheer nonsense. Such rationale

will only continue to make Ohio the source of laughter in the

area of tort law among law students and legal commentators in

other jurisdictions. See Shroades v. Rental Homes (1981), 68

Ohio St. 2d 20, concurring opinion at pages 27-29, and Leichtamer

v. American Motors Corp. (1981), 67 Ohio St. 2d 456, concurring

opinion at pages 476-477.

24

JOURNAL ENTRY AND OPINION OF THE COURT

OF APPEALS OF CUYAHOGA COUNTY, OHIO

(Dated December 31, 1980)

NO. 42208

COURT OF APPEALS OF OHIO

EIGHTH DISTRICT

CouNTY OF CUYAHOGA

HANNA BONKOWSKY,

Plaintiff-Appellant,

vs.

OTTO BONKOWSKY,

Defendant-Appellee.

JOURNAL ENTRY AND OPINION

PRYATEL, P.J.

This cause came on to be heard upon the pleadings and

the transcript of the evidence and the record in the Com-

mon Pleas Court, and was argued by counsel for the parties;

and upon consideration, the court finds no error prejudicial

to the appellant and therefore the judgment of the Common

Pleas Court is affirmed. Each assignment of error was re-

viewed and upon review the following disposition made:

Appellant Hanna Bonkowsky was a passenger in an

automobile driven by her husband, appellee Otto Bonkow-

sky, when their car collided with another vehicle. The

accident occurred in Vermont. The couple was married

at the time of the accident and remains so today. The

two have at all times remained Ohio residents.

Hanna filed suit in the Common Pleas Court seeking

damages for her injuries sustained as a result of her hus-

band’s alleged negligence in causing the car accident. The

25

parties stipulated that Otto’s insurance policy did not ex-

pressly bar the claim filed by his spouse.

Otto filed a motion for summary judgment. He con-

tended that Ohio’s adherence to the doctrine of interspousal

immunity barred Hanna’s claim, notwithstanding the fact

that the law of Vermont, the lex loci delicti, allowed such

cause of action.

Hanna filed a motion in opposition, contending that

Ohio remains among a shrinking minority of states still

clinging to an archaic legal fiction. She argued that the

policy underlying the common law doctrine of interspousal

immunity is void of any rational basis and that she should

not be precluded from obtaining redress for her injuries by

reason of such an outdated concept.

The trial court granted Otto’s motion for summary

judgment.

Hanna presents three assignments of error. We will

discuss them together, since they entail a common issue.

I. THE TRIAL COURT COMMITTED REVERS-

IBLE ERROR BY GRANTING DEFENDANT-

APPELLEE’S MOTION FOR SUMMARY JUDG-

MENT.

II. THE TRIAL COURT COMMITTED REVERS-

IBLE ERROR IN REFUSING TO STRIKE

DOWN AS UNCONSTITUTIONAL THE DOC-

TRINE OF INTERSPOUSAL IMMUNITY.

III. THE TRIAL COURT COMMITTED REVERS-

IBLE ERROR IN REFUSING TO APPLY THE

SUBSTANTIVE LAW OF THE STATE OF VER-

MONT “THE LEX LOCI DELICTI” - EVEN

IF THE FALLACIOUS DOCTRINE OF INTER-

SPOUSAL IMMUNITY IS PERPETUATED IN

OHIO UNDER THE CIRCUMSTANCES OF

THIS CASE.

The Supreme Court of Ohio has consistently upheld the

application of interspousal immunity to bar an action in

which one spouse seeks to obtain redress for the other

spouse’s negligence. Varholla v. Varholla (1978), 56 Ohio

St. 2d 269; Lyons v. Lyons (1965), 2 Ohio St. 2d 243.

That court has held the doctrine to be constitutional.

Varholla v. Varholla, supra.

Traditionally, conflicts between state laws governing

torts have been resolved through application of the laws

of the state in which the injury occurred, the lex loci

delicti. Thus, Hanna contends the law of Vermont, allow-

ing a wife to sue husband for the latter’s negligence,

should be appli. to the instant case.

However, this general principle of conflicts in tort law

has been abandoned in favor of a more modern, flexible

approach in resolving disputes, reflecting the increased

mobility of today’s society.

The trend today is to look to the laws of the state

having the most significant relationship to the parties in-

volved, the state having the dominant interest in the res-

olution of the parties’ dispute. See, e.g., Conklin v. Horner,

38 Wis. 2d 468, 157 N.W. 2d 579 (1968); Babcock v. Jack-

son, 12 N.Y. 2d 473, 191 N.W. 2d 279 (1963).

This view is reflected in the Second Restatement of

the Conflicts of Laws, whereby a court, faced with choosing

the lex loci delicti or the lex fori, is directed to consider

the rights and liabilities of the parties to be governed by the

laws of the state “with the most significant relationship to

the parties.” Restatement (Second) of Conflict of Laws,

88 6, 145, 154.

Accordingly, Ohio has rejected the “rote application

of lex loci delecti” where considerations of public policy

should accompany the judicial resolution of conflicts be-

27

tween the laws of other states. Moats v. Metropolitan

Bank of Lima (1974), 49 Ohio St. 2d 47, 49; Fox v. Morrison

Motor Freight (1971), 25 Ohio St. 2d 193, 195.

Ohio’s public policy expressly prohibits the main-

tenance of a negligence action between spouses. Varholla,

supra; Lyons, supra. In the instant case, both parties have

remained married, Ohio residents. The situs of the couple’s

automobile accident was merely adventitious, having little

or no bearing upon Ohio’s paramount, continuing interest

over their marriage relationship. We find that the policy

of the state of Ohio takes precedence over that of the

state of Vermont under the circumstances of this case.

Cf., Restatement (Second) of Conflict of Laws, §6.

Ohio law clearly precludes Hanna’s recovery against

her husband for his alleged negligence.

Accordingly, we overrule her assignments of error and

affirm the judgment of the trial court.

It is ordered that appellee recover of appellant his

costs herein taxed.

The Court finds there were reasonable grounds for

this appeal.

It is ordered that a special mandate issue out of this

Court directing the Common Pleas Court to carry this

judgment into execution.

A certified copy of this entry shall constitute the man-

date pursuant to Rule 27 of the Rules of Appellate Pro-

cedure. Exceptions.

/s/ AUGUST PRYATEL

Presiding Judge

Patton, J., Concurs

(See Concurring Opinion attached)

Day, J., Concurs

(See Concurring Opinion attached)

28

CONCURRING OPINION

Day, J., Concurring:

I concur in the judgment but add a few words of

explanation.

Precedent is not a corset. And because a court was

wrong yesterday does not mean that it must persist in

the error tomorrow. However, precedent, especially re-

cent precedent, must be observed by inferior courts to

enable orderly administration of justice.

Were there no writing on the slate I would not follow

a spousal immunity policy which seems to me medieval,

particularly in an insured case.

However, two years ago Varholla v. Varholla (1978),

56 Ohio St. 2d 269, was decided. It is foursquare against

appellant’s contentions in this case except for the possi-

bility that there was no insurance in Varholla.' That is

a distinction that may make a difference in the Supreme

Court of Ohio.

Accordingly, my concurrence is reluctant. The prin-

ciples announced in Justice William Brown’s dissent seem

to me to represent the logical, and incidentally, majority

view in the country.

CONCURRING OPINION

Patton, J., Concurring:

I concur in the judgment; however, I feel compelled

to comment on the doctrine upon which this judgment is

premised. I have examined the reasoning set forth by

the Ohio Supreme Court in Varholla v. Varholla (1978),

1. The case report does not make it clear whether there

was insurance.

29

56 Ohio St. 2d 269, and I find it most diff cult to ration-

alize the overturning of the “guest statute” and the preser-

vation of the interspousal immunity doctrine.

The reasons given for the acceptance of the doctrine

of interspousal immunity are essentially the same as those

that were argued for the preservation of the “guest stat-

ute”. They are threefold:

(1) IIjmmunity promotes marital harmony by

discouraging otherwise litigious spouses from pursuing

real or fanciful claims to the dei.:iment of the family

unit; (2) the immunity prevents fraud and collusion

at the expense of tactically disadvantaged insurance

companies; and (3) as this involves a matter of public

policy, changes in this area must emanate from the

General Assembly, not the courts.

Varholla, supra at 270.

The court instituted doctrine of interspousal immunity

creates an arbitrary disability preventing spouses from

suing one another for injuries caused by each other’s neg-

ligence. The purpose of the doctrine as rationalized by

the Ohio Supreme Court is to promote the two proposi-

tions previously stated. However, a realistic review of

these theories demonstrates the hollowness of their further

use as premises for this doctrine. The original purposes

for the doctrine were laudable but they have become

archaic in light of the sophisticated ability of insurance

companies, the refinement of courtroom evidentiary

processes, and the social patterns of society.

The honorable goal of preventing fraudulent and col-

lusive suits by spouses has been minimized by the in-

creased economic and legal investigative resources of in-

surance companies. The litigation involved in a claim

by a spouse against a spouse involves advanced medical

30

evidence of injuries that must be proven to the trier of

fact. The days have long passed where the evidence re-

lied upon by the trier of fact comes solely from the par-

ties involved. Today, we have expert medical evidence

to verify the extent of injury to the party.

The costs of medical treatment to the injured survivor

of a negligent act caused by another’s spouse has greatly

increased. Hence, the need for the apportioning of medical

costs to the overall society has become necessary. In-

surance has filled the need of the shared injury costs in

society. The operation of interspousal immunity fre-

quently operates to restrict this social policy.

The state’s interest in promoting marital harmony

and preservation of the family unit is at all times to be a

paramount concern of the state. However, there is little

evidence that the doctrine of interspousal immunity rein-

forces the marital harmony of the population of the state.

The strains of an accident which causes injuries that are

beyond the financial capabilities of a family can be

equally if not more troubling than the instigation of a

lawsuit.

To argue that an individual is more likely to bring a

collusive suit with his spouse than with a guest in a

vehicle does not bear up under a pragmatic review. Nor

does it give much credit to the deterrent of a perjury

charge and judicial devices established in our system to

seek the truth. This premise assumes irregularity rather

than the honesty upon which our system is based. As

pointed out by Justice William B. Brown in his dissent in

Varholla, supra at 272, the Ohio Supreme Court has al-

ready rejected the presumption of irregularity in Primes

v. Taylor (1975), 43 Ohio St. 2d 195. This is not to say

a collusive suit is not possible but it does suggest that

it is a minimal danger to our judicial system. It is a threat

31

that clearly does not justify the all-inclusive nature of

a prohibition of all suits by spouses against one another

for their negligent acts.

In contrasting the Ohio Supreme Court’s reasoning in

Varholla, supra, and Primes, supra, I cannot find a jus-

tifiable distinction allowing the overturning of the “guest

statute” and the continuation of the interspousal immunity

statute. The conclusive presumptions used to justify the

shield of liability of one spouse from the other spouse

are no longer viable and do not dictate the continuation

of differential treatment afforded by interspousal im-

munity. As was pointed out in Varholla, supra, since 1965,

we have gone from a “shrinking majority” of American

jurisdiction that em“ raced the interspousal immunity doc-

trine to a “shrinking minority”.

I must also concur with the position taken by Justice

William Brown, that this judicially-created doctrine is

readily abolishable by the court. The doctrine is incon-

sistent with the progressive nature of our civil law. There-

fore, my concurrence is not expressed without deep mis-

givings and hope that the doctrine will be reconsidered

by the higher court.

32

JUDGMENT ENTRY OF THE COURT

OF COMMON PLEAS

(Dated March 24, 1980)

Case No. 999203

IN THE COURT OF COMMON PLEAS

STATE OF OHIO )

) SS:

COUNTY OF CUYAHOGA :

HANNA BONKOWSKY,

Plaintiff,

VS.

OTTO BONKO WSK.

Defendant.

JUDGMENT ENTRY

Defendant’s motion for summary judgment is granted

(see Moss v. Moss, Court of Appeals No. 39876, decided De-

cember 20, 1979; Varholla v. Varholla, 56 Ohio St. 2d 269

(1978); Lyons v. Lyons, 2 Ohio St. 2d 243 (1965); Thomas

v. Harron, 20 Ohio St. 2d 62 (1969)).

/s/ JAMES J. McMoNnaAGLE

Judge

33

JUDGMENT ENTRY OF THE SUPREME COURT

OF OHIO

(Dated February 10, 1982)

No. 81-270

THE SUPREME COURT OF THE STATE OF OHIO

THe STATE or Onto, City or CoLumMBUS

HANNA BONKOWSKY,

Appellant,

vs.

OTTO BONKOWSKY,

Appellee.

APPEAL FROM THE COURT OF APPEALS

FOR CUYAHOGA COUNTY

This cause, here on appeal from the Court of Appeals

for Cuyahoga County, was heard in the manner prescribed *

by law. On consideration thereof, the judgment of the

Court of Appeals is affirmed for the reasons set forth in

the opinion rendered herein, and it appearing that there

were reasonable grounds for this appeal, it is ordered that

no penalty be assessed herein.

It is further ordered that the appellee recover from the

appellant its costs herein expended; and that a mandate

be sent to the Common Pleas Court to carry this judgment

into execution; and that a copy of this entry be certified to

the Clerk of the Court of Appeals for Cuyahoga County

for entry.

34

JUDGMENT ENTRY OF THE SUPREME COURT

OF OHIO

(Dated February 10, 1982)

No. 81-270

THE SUPREME COURT OF THE STATE OF OHIO

Tue STATE or OHIO

Crrv or CoLUMBUS

HANNA BONKOWSKY,

Appellant,

VS.

OTTO BONKOWSKY,

Appellee.

MANDATE

To the Honorable Common Pleas Court within and

for the County of Cuyahoga, Ohic greeting:

The Supreme Court of Ohio commands you to proceed

without delay to carry the following judgment in this

catise into execution:

Judgment of the Court of Appeals affirmed for the

reasons set forth in the opinion rendered herein.

uoflso000

Office - Supreme

*

No. 81-2092 *

Court, U.S.

FILED

ALEKANOER & STEWAS.

K

Supreme Court of the United States

October Term, 1981

HANNA BONKOWSKY,

Petitioner,

VS.

OTTO BONKO WSK.

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

To THE SUPREME Cour OF THE STATE OF OHIO

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

—

CHARLES W. KitcHen, Counsel of Record

KITCHEN, MESSNER & DEERY

1305 Superi e Building

Cleveland, Ohio 44114

(216) 241-5614

Counsel for Respondent

FRED WEISMAN, Counsel of Record

WEISMAN, GOLDBERG & WEISMAN Co., L.P.A.

540 Leader Building

Cleveland, Ohio 44114

(216) 781-1111

Counsel for Petitioner

——

—

"THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

r ————————— —

I. Ohio's Doctrine of Interspousal Tort Immu-

nity is not a question for review by this court

under the Equal Protection Clause of the

Fourteenth Amendment to the United States

D 1

II. Ohio's Doctrine of Interspousal Tort Immu-

nity is not a question for review by this court

under the Due Process Clause of the Four-

teenth Amendment to the United States Con-

EEE

CONCLUSION ........................-. „— —

TABLE OF AUTHOR,TIES

Cases

Lyons v. Lyons, 2 Ohio St. 2d 243 (1965)

Varholla v. Varholla, 56 Ohio St. 2d 269 (1978) ........

Weinberger v. Salfi, 422 U.S. 749 (197595 N

No. 81-2092

Supreme Court of the United States

October Term, 1981

HANNA BONKOWSKY,

Petitioner,

vs.

OTTO BONKOWSKY,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

To THE SUPREME COURT OF THE STATE OF OHIO

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Plaintiff-petitioner raised a due process issue in the

trial court and thereafter raised the equal protection of law

issue in the Ohio Court of Appeals and Supreme Court.

ARGUMENT

I. OHIO’S DOCTRINE OF INTERSPOUSAL TORT

IMMUNITY IS NOT A QUESTION FOR REVIEW

BY THIS COURT UNDER THE EQUAL PROTEC-

TION CLAUSE OF THE FOURTEENTH AMEND-

MENT TO THE UNITED STATES CONSTITU-

TION.

The long established Ohio judicial doctrine of inter-

spousal tort immunity applies equally to husbands and

wives.

The cases cited by plaintiff-petitioner discuss specific

fact situations wherein this court has reviewed cases in-

volving equal protection, however, are not in point with

the facts and the doctrine involved herein.

Even if it is assumed that there is the impingement

of a fundamental right, the facts herein do not suggest

a failure by the State of Ohio to carefully scrutinize the

application of the doctrine.

The Ohio Supreme Court in Lyons v. Lyons, 2 Ohio

St. 2d 243 (1965) stated, in referring to the Ohio Married

Woman’s Act, to-wit:

“These statutes, however, do not remove all common-

law immunities and disabilities as between spouses.”

“The public policy of this state is to promote

marital harmony... .”

“Likewise, it is the public policy of this state to

prevent fraud and collusion.” (Page 244)

Said court in Varholla v. Varholla, 56 Ohio St. 2d 269

(1978) reviewed its decision in Lyons and stated as fol-

lows, to-wit:

“We think it sufficient to state that the inter-

spousal immunity doctrine, with its inherent dif-

ferential treatment of spouses and non-spouses, rea-

sonably relates to the legitimate state interest of fos-

tering marital harmony and preventing fraud and col-

lusion.” (Page 270)

The Ohio Supreme Court in the case at bar again re-

viewed and reaffirmed its previous position.

It is further noted that the interspousal immunity doc-

trine is not unique to Ohio; that although it has been

abrogated in a number of states (31 according to a dis-

senting opinion in Bonkowsky (Appendix Page 16) ), Ohio,

after due consideration, has continued to consider that

the public interest exceeds the individual rights of plain-

tiff-petitioner.

This court in Weinberger v. Salfi, 422 U.S. 749 (1975)

reversed a lower court decision which had invalidated an

irrebuttable presumption based on a duration-of-relation-

ship Social Security eligibility requirement for surviving

wives and stepchildren of deceased wage earners. The

court stated, to-wit:

“The question is whether Congress, its concern having

been reasonably aroused by the possibility of an abuse

which it legitimately desired to avoid, could rationally

have concluded both that a particular limitation or

qualification would protect against its occurrence, and

that the expense and other difficulties of individual

determinations justified the inherent imprecision of a

prophylactic rule. We conclude that the duration-of-

4

relationship test meets this constitutional standard.”

(Page 777)

The court had previously noted that:

„. . . a State does not violate the Equal Protection

Clause merely because the classifications made by its

laws are imperfect. If the classification has some

‘reasonable basis’, it does not offend the Constitution

simply because the classification ‘is not made with

mathematical nicety or because in practice it results

in some inequality.“ (Page 769 citing Dandridge v.

Williams, 397 U.S. 471 (1970) )

There are no new and previously undecided issues

suggested herein for review by this court.

OHIO’S DOCTRINE OF INTERSPOUSAL TORT

IMMUNITY IS NOT A QUESTION FOR REVIEW

BY THIS COURT UNDER THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

Plaintiff-petitioner has not relied upon due process in

the appellate courts below.

Furthermore, the issues raised have been announced

by this court in Weinberger v. Salfi, supra.

There are therefore no new issues to be reviewed.

CONCLUSION

There are no issues presented by plaintiff-petitioner

raising important questions of Federal law which have

not been settled by this court as provided in Rule 17.1(C)

of the rules of this court and the Ohio Supreme Court

has clearly carefully considered the issues and has sus-

tained its position on interspousal immunity based on

public policy considerations. Accordingly, the petition

should be denied.

Respectfully submitted,

CHaRLES W. Kitcuen, Counsel of Record

KITCHEN, MESSNER & DEERY

1305 Superior Building

Cleveland, Ohio 44114

(216) 241-5614

Counsel for Respondent