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JUDITH MAZZOCHETTI HACK v. JOSEPH STEVEN HACK AND JOSEPH STEVEN HACK (07/14/81)

decided: July 14, 1981.

JUDITH MAZZOCHETTI HACK, APPELLANT,
v.
JOSEPH STEVEN HACK AND JOSEPH STEVEN HACK, SR., AND GOVERNMENT EMPLOYEES INSURANCE CO.



No. 516 January Term, 1978, Appeal from the Order of the Superior Court of Pennsylvania, entered October 2, 1978 at No. 756 October Term, 1978 affirming the Order of the Court of Common Pleas, Montgomery County, entered December 27, 1977 at No. 73-05091 - Civil Action Law.

COUNSEL

Edward L. McCandless, Philadelphia, for appellant.

David M. McCormick, Thomas J. Finarelli, Thomas Martin, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien and Nix, JJ., concuring in the result.

Author: Roberts

[ 495 Pa. Page 302]

OPINION OF THE COURT

Appellant, Judith Mazzochetti Hack, filed an action in trespass for damages incurred as a result of personal injuries sustained in an automobile accident on May 27, 1971, when she was a passenger in a car driven by appellee Joseph Steven Hack, owned by Joseph Steven Hack, Sr., and insured by Government Employees Insurance Company.*fn1 Appellant averred in her complaint that the injuries she sustained were solely the result of the negligence of appellee. The Court of Common Pleas of Montgomery County granted appellee's motion for summary judgment on the ground that the action was barred by this Court's decision in DiGirolamo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973) which affirmed the vitality of inter-spousal immunity.*fn2 The Superior Court affirmed without opinion. 261 Pa. Super. 437, 395 A.2d 985. This Court granted allowance of appeal.

Appellant and appellee Hack were unmarried at the time of appellee's alleged negligence. They married each other almost a year later on May 18, 1972. Approximately one year after their marriage, on April 26, 1973, appellant commenced

[ 495 Pa. Page 303]

    this action. On September 9, 1974, appellant and appellee Hack were divorced. However, four months later, on January 16, 1975, they remarried. The record indicates that they continue to be married to each other at the present time.

On appeal, appellant argues that the inter-spousal immunity doctrine does not apply because of the peculiar factual and procedural posture of this case. First, she contends that appellee has waived the defense of inter-spousal immunity because the answer to the complaint, filed after the divorce and remarriage of appellant and appellee, pleads only the first marriage (now dissolved but in existence at the time the action was commenced) and not the second marriage (the only marriage in existence at the time the answer was filed). Cf. Policino v. Ehrlich, 478 Pa. 5, 385 A.2d 968 (1978) (inter-spousal immunity affirmative defense which may be waived). Appellant's second argument is that, even if the pleadings were proper, the defense of inter-spousal immunity should not apply where, as here, the marriage in effect at the time suit is instituted does not continue in effect throughout the litigation. Cf. Turner v. Turner, 487 Pa. 403, 409 A.2d 412 (1979) (claim not barred where couple married at time of accident but divorced at time of suit).

Adoption of either theory advanced by appellant would deny application of inter-spousal immunity as a defense in this action, but would leave unanswered the real question presented: whether inter-spousal immunity for personal injuries inflicted prior to or during marriage should continue as part of the common law of this Commonwealth. We reject the opportunity present on these facts to engraft exceptions onto an outmoded and unwarranted doctrine which denies a litigant, because of marital status and relationship, the opportunity to prove his or her claim in court. Instead, we conclude that a tortfeasor's immunity from liability because of his marital relationship with the injured party cannot be sustained on the basis of law, logic or public policy. Hence we abrogate the judicially-created doctrine of inter-spousal immunity.

[ 495 Pa. Page 304]

I

This Court's most recent decision upholding the doctrine of inter-spousal immunity was rendered in DiGirolamo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973) (Roberts, J., joined by Nix, J., dissenting, and Manderino, J., dissenting). The majority of the Court specifically refused "to re-examine the reasoning underlying the rule, as well as the public policy considerations" stating that "the instant decision is controlled by a specific state statute." Id., 454 Pa. at 563, 312 A.2d at 385. On an earlier occasion, however, this Court referred to the rule of inter-spousal immunity as " both statutory and decisional," and as "now based upon social reasons and public policy." Meisel v. Little, 407 Pa. 546, 548, 180 A.2d 772, 773 (1962) (emphasis in original). A reading of these cases makes clear that inter-spousal immunity has survived as a doctrine in this Commonwealth only because this Court has erroneously interpreted the statutes relating to married women, 48 P.S. § 1-1 et seq. (1965), and adhered to outmoded common law concepts.

A.

In DiGirolamo v. Apanavage, supra, and Meisel v. Little, supra, the Court focused on whether the provision of the Married Persons Property Act which permits one spouse to sue the other "to protect and recover her [or his] separate property," 48 P.S. § 111 (1965), includes an action in tort for unliquidated damages.*fn3 In answering this question in the negative, the majority overlooked relevant provisions and history of the statutes relating to married women.

The Married Persons Property Act, like similar statutes enacted in every state, was designed to abolish the common law "unity" of husband and wife, and thereby to secure to a married woman a separate legal identity from her husband with corresponding substantive and procedural rights. Prosser,

[ 495 Pa. Page 305]

Law of Torts § 122 at 861 (4th ed. 1971). See Marsteller v. Marsteller, 93 Pa. 350 (1880).

At common law, the wife's identity merged upon marriage with that of her husband. Husband and wife were legally presumed to be one. That "one" was the husband, the wife having no independent rights. A married woman had no capacity to contract, to convey property, or to sue and be sued in her own name. 1 Blackstone, Commentaries 442, 443; 2 id. 433. In the words of one commentator,

"[a] combination of all these incidents made it impossible at common law for one spouse ever to be civilly liable to the other for an act which would be a tort if the relation did not exist. Where the act occurred before marriage, a cause of action arose. If the man was the tortfeasor, the woman's right would be a chose in action, which upon marriage the man would have the right to reduce to possession. This union in one person of the right-duty relation discharges the duty as a matter of substance, and there is besides the procedural difficulty that the husband would be both plaintiff and defendant. If the woman was the tortfeasor, the man's right would be a chose in action against the woman, whose duty upon marriage would devolve upon the husband as a derivative duty, which would be discharged by union of the right and duty in the same person; and there is the same procedural difficulty. Where the act occurs during coverture, the matter is complicated by other factors . . . . the right and the duty to make compensation, if any can be said to exist, would be united eo instante in the same person, and no cause of action could arise; and even if it could be said to arise, there would be the procedural difficulty of the husband's being both plaintiff and defendant. The same reasoning would apply to acts which injure the person, whether done by husband to wife or by wife to husband . . . ."

McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1033-34 (1930). See Kaczorowski v. Kalkosinski,

[ 495 Pa. Page 306321]

Pa. 438, 442-43, 184 A. 663, 665 (1936); Prosser, Law of Torts § 122 at 859-60 (4th ed. 1971).*fn4

The first Married Persons Property Act in this Commonwealth, enacted in 1848, guaranteed as a substantive right that

"every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman, shall continue to be the property of such woman, as fully after her marriage as before; and all such property of whatever name or kind, which shall accrue to any married woman during coverture by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property . . . ."

Act of April 11, 1848, P.L. 536, § 6, 48 P.S. § 64 (1965). This language, which continues in force today as section 64 of Title 48, is supplemented by section 32.1 of that same title:

"Hereafter, a married woman shall have the same right and power as a married man to acquire, own, possess, control, use, convey, lease or mortgage any property of any kind, real, personal, or mixed, either in possession or in expectancy, or to make any contract in writing or otherwise, and may exercise the said right and power in the same manner and to the same extent as a married man."

[ 495 Pa. Page 307]

Act of July 15, 1957, P.L. 969, § 1, 48 P.S. § 32.1 (1965). Both of these provisions granting to married women substantive property and contract rights are contained in Chapter 2, "Substantive Rights of Married Women," of Title 48.

In Chapter 3, "Remedies and Liabilities of Married Women," section 111 provides:

"Hereafter a married woman may sue and be sued civilly, in all respects, and in any form of action, and with the same effect and results and consequences, as an unmarried person; but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect and recover her separate property; nor may he sue her, except in a proceeding for divorce, or in a proceeding to protect or recover his separate property; nor may she be arrested or imprisoned for her torts."

Act of June 8, 1893, P.L. 344, § 3, as amended, Act of March 27, 1913, P.L. 14, § 1, 48 P.S. § 111 (1965). Section 111, read in light of the substantive rights provided in Chapter 2 which it is intended to effectuate, compels the conclusion that "a proceeding to recover her [or his] separate property" includes the right to bring an action in tort. Clearly a claim for unliquidated tort damages falls within the language, "property of any kind, real, personal, or mixed, either in possession or in expectancy," 48 P.S. § 32.1 (1965), and "[e]very species and description of property, whether consisting of real, personal or mixed . . . and all such property of whatever name or kind, which shall accrue . . . by will, descent, deed of conveyance or otherwise, shall be . . . separate property," 48 P.S. § 64 (1965). See O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285, 289 (1964) ("chose in action is personal property"); Berry v. Harmon, 329 S.W.2d 784, 791 (Mo. 1959) (cause of action is "separate property" of married woman); Prosser v. Prosser, 114 S.C. 45, 102 S.E. 787, 788 (1920) ("a wife has a right in her person; and a suit for a wrong to her person is a thing in action; and a thing in action is property, and her property").

The history of section 111 also compels this result. Prior to the original enactment of section 111 in 1893, the statute

[ 495 Pa. Page 308]

    governing the capacity of a married woman to sue and be sued provided:

"A married woman shall be capable of entering into and rendering herself liable upon any contract relating to any trade or business in which she may engage, or for necessaries, and for the use, enjoyment and improvement of her separate estate, and for sueing and being sued, either upon such contracts or for torts done to or committed by her, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff, or defendant, or be made a party to any action, suit or legal proceeding of any kind brought by or against her in her individual right; and any debt, damages or costs recovered by her in any such action, suit or proceeding shall be her separate ...


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