Chapter 68: Spousal Immunity

§68.1 Generally

The Case: Davis v. Davis , 657 S.W.2d 753 (Tenn. 1983).

The Basic Facts: Wife sued husband for injuries received when fishing boat he was operating crashed.

The Bottom Line:

• “The formalistic legal foundations that originally lent support to the doctrine of interspousal immunity have long ago crumbled away. It is irrefutable that, although the doctrine does not discriminate between a husband and wife in denying one a cause of action against the other, its early existence can be traced to a concept that only imposed legal disability on the wife; that concept is unity.” 657 S.W.2d at 753 (footnote omitted).
• “In McKelvey v. McKelvey, [77 S.W. 664 (Tenn. 1903)], this Court said:

  It has been held that neither husband nor wife can maintain an action against the other for wrongs committed during coverture. This holding rests in part upon their unity by virtue of the marriage relation, which would preclude the one from suing the other at law, and in part upon the respective rights and duties involved in that relation.

  [77 S.W. at 665 (emphasis added)].” Id. at 754.
• “This litany, that interspousal immunity is shielded from critical analysis because unity is an incident of marriage, has been invoked without fail as a justification for preventing one spouse from suing the other.” Id.
• “In Prince v. Prince, [326 S.W.2d 908 (Tenn. 1959)], this Court articulated a subtle distinction between the prohibition on interspousal tort litigation as it has developed in this State and the manner in which it is applied elsewhere. In most states, even though a cause of action arises when one spouse acts tortiously against the other, the immunity defeats the cause of action. Past decisions of this Court make clear that ‘the right of action never existed.’ Prince v. Prince, supra, 326 S.W.2d at 910, quoting from Wilson v. Barton, [283 S.W. 71 (Tenn. 1926)]. The Court explained:

  Under this view, based primarily on the common-law doctrine of the unity of husband and wife, there is never any cause of action; it is not simply a matter of granting an immunity as is elsewhere in the doctrine.

  326 S.W.2d at 910.” Id.
• “In Hance v. Haun, [391 S.W.2d 621 (Tenn. 1965)], the plaintiff brought suit against his step-father under [Tenn. Code Ann. § 20-607 (presently Tenn. Code Ann. § 20-5-106)], for damages for the wrongful death of his mother, whom his step-father intentionally shot and killed. This Court affirmed the decision of the trial court in sustaining defendant’s demurrer, and held:

  It is quite plain then that the right of the plaintiff in this case to recover against his stepfather is derivative only as coming to him through the right of his mother to have prosecuted a claim for damages against her husband. Since the law of this State does not permit one spouse to sue another for tort during coverture, she had no right of action which could pass to her next of kin.

  391 S.W.2d at 624.” Id. at 755.
• “Recently, when presented with the opportunity of affirming Hance v. Haun, supra, we chose instead to expressly overrule it. The case of Luna v. Clayton, 655 S.W.2d 893 (Tenn. 1983), was factually identical to Hance v. Haun, supra, and yet we allowed the wrongful death action to proceed, stating:

  This Court recognizes that courts may have previously fashioned a rule of immunity from wrongdoing, having adopted a posture at an earlier date in response to what appeared to be desirable then as a matter of policy; yet when it later appears to be unsound within a given context, especially when the reasons upon which the immunity is based no longer exist, it remains within the domain of the judiciary to reject the applicability of such a rule.

  655 S.W.2d at 897.” Id.
• “We limited our holding in Luna v. Clayton, supra, to the facts presented therein, saying:

  Whether the reasons underpinning the doctrine of interspousal immunity are valid and viable within other contexts must away future consideration.

  655 S.W.2d at 897.” Id.
• “Nevertheless, our exposition in Luna citing the present status of interspousal immunity in each of our 49 sister states reveals a decided trend away from the doctrine.
  
  In all of the cases previously discussed in this opinion, unity is either expressly or impliedly cited as the theoretical underpinning of interspousal immunity. Curiously enough, in a decision rendered by this Court construing whether the Married Women’s Emancipation Act abrogated interspousal immunity, it was held that the legislature intended to abolish unity but not marital immunity. That holding, in and of itself, is not objectionable.” Id. at 756.
• “We regard the construction of the Married Women’s Emancipation Act in [Lillienkamp, supra,] as correct. In is anomalous, however, that even though ‘the Legislature had in mind… the fundamental doctrine of the unity of husband and wife under the common law,…’ when it removed the disabilities of coverture, retention of interspousal immunity has consistently been substantiated on the basis of unity. Unity, the pillar upon which interspousal immunity has rested for so many years, was abolished by the legislature in 1915.
  
  Nevertheless, interspousal immunity has acquired an existence of its own, and perpetuation of the doctrine is seemingly undeterred by the elimination of the anachronistic concepts which spawned it.” Id.
• “The legal abstraction of unity, now an historical oddity rather than a functioning concept of law, is no longer available to support retention of interspousal immunity. Moreover, we are not convinced that family harmony can be preserved and fraud prevented by continued application of the doctrine. Finding no plausible reasons for retaining it, and cognizant of the high cost exacted by the rule because of the absolute bar it places in the path of potentially meritorious claims, we hold that interspousal tort immunity is totally abolished in this State. All decisions to the contrary are overruled.” Id. at 759.

Other Sources of Note : Setters v. Permanent General Assur. Corp., 937 S.W.2d 950 (Tenn. Ct. App. 1996) (the logic of Davis v. Davis may not be extended to find an insurance policy excluding children from liability insurance coverage was violative of public policy).