Sims, C. J., and Stewart, J., dissenting.
COMBS, Justice. The question in this case is whether a wife may maintain against her husband an action for a tort committed against her person prior to marriage, her suit having been commenced prior to marriage.
The plaintiff, Mary Gosser, was injured in an automobile driven by her prospective husband in May, 1950. Suit was filed the following July 14 and summons was served on the defendant the same day. The parties were married two or three hours later and were living together as husband and wife at the time of trial. The jury returned a verdict for plaintiff in the amount of $1300 and from the resulting judgment the defendant appeals.
The record includes a lucid opinion by Judge John B. Rodes, who tried the case, in which he concludes the judgment may be sustained on either of two grounds: 1. Plaintiff has authority under the Married Woman's Act of 1894, KRS 404.020, and Civil Code of Practice, § 34, to sue her husband for personal injuries caused by his negligence. 2. Regardless of the correctness of ground (1), plaintiff's cause of action became fixed at the time of her injury and has existed since that time as a right of property which was not extinguished by reason of her marriage to the defendant.
Judge Rodes presents a logical and persuasive argument that the General Assembly, in authorizing a married woman 'to sue and be sued as a single woman,' intended to permit her to sue her husband in the same manner and for the same reasons she might sue any other person. It is the prevailing view, however, that neither spouse may maintain an action against the other for injuries resulting from negligence. 41 C.J.S., Husband and Wife, § 396, page 880; 27 Am.Jur., Husband & Wife, § 589; 6 A.L.R. 1041; 29 A.L.R. 1482; 33 A.L.R. 1406; 89 A.L.R. 118; 160 A.L.R. 1406, at 1412; Prosser on Torts, § 99, page 902; Furstenburg v. Furstenburg, 1927, 152 Md. 247, 136 A. 534; Woltman v. Woltman, 1922, 153 Minn. 217, 189 N.W. 1022; Austin v. Austin, 1924, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388; Blickenstaff v. Blickenstaff, 1929, 89 Ind.App. 529, 167 N.E. 146; Harvey v. Harvey, 1927, 239 Mich. 142, 214 N.W. 305. This appears to be the majority rule even where, as here, the injury occurred and the suit was filed prior to marriage. Prosser on Torts, § 99, page 902; Newton v. Weber, 1922, 119 Misc. 240, 196 N.Y.S. 113; Buckeye v. Buckeye, 1931, 203 Wis. 248, 234 N.W. 342; Scales v. Scales, 1934, 168 Miss. 439, 151 So. 551; Patenaude v. Patenaude, 1935, 195 Minn. 523, 263 N.W. 546; Spector v. Weisman, 1930, 59 App.D.C. 280, 40 F.2d 792.
But the Courts in a minority of the states hold that since the enactment of the various married women's statutes, one spouse may sue the other for tort. Prosser on Torts, § 99, page 904; Brown v. Brown, 1914, 88 Conn. 42, 89 A. 889, 52 L.R.A.,N.S., 185; Johnson v. Johnson, 1917, 201 Ala. 41, 77 So. 335, 6 A.L.R. 1031; Fiedler v. Fiedler, 1914, 42 Okl. 124, 140 P. 1022, 52 L.R.A.,N.S., 189; Prosser v. Prosser, 1922, 114 S.C. 45, 102 S.E. 787; Crowell v. Crowell, 1920, 180 N.C. 516, 105 S.E. 206; Id., 181 N.C. 66, 106 S.E. 149; Fontaine v. Fontaine, 1931, 205 Wis. 570, 238 N.W. 410; Fitzmaurice v. Fitzmaurice, 1932, 62 N.D. 191, 242 N.W. 526; Rains v. Rains, 1935, 97 Colo. 19, 46 P.2d 740; Katzenberg v. Katzenberg, 1931, 183 Ark. 626, 37 S.W.2d 696. Some of the Courts which still profess adherence to the common law rule have been quite willing to depart from it upon any plausible excuse; 19 Minn.L.Rev. 595 (1935); 35 Col.L.Rev. 781 (1935); 18 Boston U.L.Rev. 196 (1935); Albrecht v. Potthoff, 1934, 192 Minn. 557, 257 N.W. 377, 96 A.L.R. 471, citing Robinson's Adm'r v. Robinson, 188 Ky. 49, 220 S.W. 1074, which holds that under section 241 of the Kentucky Constitution a wife's administrator may sue the husband for the wife's wrongful death for the benefit of the children to the extent they are entitled to recover.
The common law rule originally was based upon the historical fiction of the unity of husband and wife, plus the inability of a person to sue himself. But this concept has been abrogated by the enactment of women's emancipation statutes. Since then courts have seized upon other theories to deny the right. The principal one perhaps is that to permit suits for torts between husband and wife would tend to disturb domestic tranquility and conjugal bliss. Prosser on Torts, § 99, page 903.
Stress has been placed upon the danger of fictitious and fraudulent claims. See Abbott v. Abbott, 67 Me. 304, 24 Am.Rep. 27, where it was said: 'and this would add a new method by which estates could be plundered'; and Newton v. Weber, 119 Misc. 240, 196 N.Y.S. 113, 114, where it was said that no wife would want to sue her husband for a negligent tort except as a 'raid upon an insurance company'.
The possibility of trivial actions for minor annoyances has also been mentioned as a reason for denying the right to sue. Drake v. Drake, 145 Minn. 388, 177 N.W. 624, 9 A.L.R. 1064. Typical of this line of thought is the dissenting opinion in Wait v. Pierce, 191 Wis. 202, 209 N.W. 475, 210 N.W. 822, 48 A.L.R. 276, where the author uses 'the uninvited kiss' as an example of the type of assault for which an unsuspecting husband might be liable if his wife is permitted to sue him for tort.
The minority rule received its greatest impetus from the dissenting opinion of Justice Harlan, concurred in by Justices Holmes and Hughes, in the case of Thompson v. Thompson, 1910, 218 U.S. 611, 31 S.Ct. 111, 114, 54 L.Ed. 1180, 30 L.R.A.,N.S., 1153, 21 Ann.Cas. 921. Their dissent was based squarely on the wording of a District of Columbia married woman's statute which, to our mind, is no broader than our equivalent Kentucky statute. In the words of Mr. Justice Harlan:
'It (the statute) makes a radical change in the relations of man and wife as those relations were at common law in this District'
'if, as suggested, that result be undesirable on grounds of public policy, it is not within the functions of the court to ward off the dangers feared or the evils threatened simply by a judicial construction that will defeat the plainly-expressed will of the legislative department. With the mere policy, expediency, or justice of legislation the courts, in our system of government, have no rightful concern. Their duty is only to declare what the law is, not what, in their judgment, it ought to be'.
Four years later the doctrine of the dissenting Justices was made the basis of a direct holding in the Connecticut case of Brown v. Brown, cited above, 88 Conn. 42, 89 A. 889, 52 L.R.A.,N.S., 185, and most of the subsequent cases which follow the minority rule ...