Opinion
No. 4780.
Argued November 3, 1959.
Decided December 1, 1959.
1. Where there is a conflict between the law of the state of the forum where the parties are domiciled and that of the state where a tort occurs, the existence and extent of a cause of action is governed by the law of the latter.
2. Since by the law of Massachusetts a tort inflicted in that state upon a married woman by her husband gives rise to no cause of action against the husband there, no action may be maintained in this state where the parties reside.
3. However, an action of tort commenced in this state to enforce a cause of action which arose in Massachusetts in favor of an unmarried woman against a man whom she later married in a third state, may properly be maintained in this state notwithstanding the marriage, where the parties always resided here and it is not the law of either the state where the marriage was performed or of Massachusetts that marriage of the parties extinguishes a pre-existing cause of action between them, even though by the law of Massachusetts the action could not be maintained there after the marriage.
CASE, for negligence to recover damages for personal injuries suffered by the plaintiff on February 10, 1957 at Ashburnham, Massachusetts, allegedly as a result of the defendant's gross negligence in operating an automobile in which the plaintiff was a passenger.
The parties were then and are now residents of New Hampshire. The plaintiff's action was brought by writ dated June 13, 1957. On July 7, 1957, she and the defendant were lawfully married at Fort Chaffee, Arkansas, and have since resided as husband and wife in New Hampshire.
The defendant moved to dismiss upon the ground that the action cannot be maintained, because it could not be maintained Massachusetts where the accident occurred. The plaintiff denies that the marriage of the parties affects her right of action. The issue presented by the motion was reserved and transferred without ruling by the Superior Court (Keller, J.)
Walter H. Gentsch and William D. Tribble for the plaintiff, furnished no brief.
Upton, Sanders Upton and Wesley E. Whitney (Mr. Whitney orally), for the defendant.
It is the settled law of this jurisdiction that a married woman may maintain an action against her husband for damages suffered during coverture as a result of his illegal acts (Gilman v. Gilman, 78 N.H. 4) including negligent acts (Miltimore v. Company, 89 N.H. 272).
RSA 460:2 provides in part: "Every married woman . . . may . . . sue and be sued, in all matters in law and equity . . . as if she were unmarried"; and it is considered that as a result of the married women's acts "husband and wife now stand upon an equality of right in respect to property, torts, and contracts . . . ." Seaver v. Adams, 66 N.H. 142, 143. See also, Caplan v. Caplan, 83 N.H. 318; Gray v. Gray, 87 N.H. 82.
It has been the equally well-settled law of this and other jurisdictions that the existence and extent of a cause of action for a wrong are governed by the law of the place where the wrong occurred, or the plaintiff's injuries were suffered. Restatement, Conflict of Laws, s. 382, et seq. Gray v. Gray, supra; Boisvert v. Boisvert, 94 N.H. 357; Zielinski v. Cornwell, 100 N.H. 34, 37. Thus in Miltimore v. Company, 89 N.H. 272, supra, 273, it was said that "'incidents of [the marital status of parties domiciled in the forum] are those prescribed by the law of the place where the transactions take place.' Though by the law of the forum the wife's incapacity to recover for the tort of her husband has been abolished, the lex loci delicti must determine her right to recover in the present action against her husband. Gray v. Gray, 87 N.H. 82." This was the conclusion reached in Gray v. Gray, supra, where the plaintiff wife was injured in Maine; and it was there determined that under the law of Maine "there is not merely . . . a prohibition of suit, but . . . the acts complained of do not give rise to any cause of action." Id., 85.
Relying upon this rule, the defendant in this case contends that under Massachusetts law the plaintiff could not recover in that jurisdiction (Lubowitz v. Taines, 293 Mass. 39) and therefore should not be permitted to maintain her action here. In support of this contention he relies upon Coster v. Coster, 289 N.Y. 438 and Bohenek v. Niedzwiecki, 142 Conn. 278, to illustrate proper application of principles of conflict of laws in cases of antenuptial torts, and to establish that the right of the wife to recover against her spouse is a matter of substantive law and governed by the law of the place of the wrong when the law of the forum differs. See anno. 43 A.L.R. (2d) 632, 636.
Recent developments in the field of conflict of laws indicate support in interspousal or family suits, arising out of wrongs committed in foreign jurisdictions, for the view that the rights of the parties should be determined in accordance with the law of the domicile of the parties. Emery v. Emery, 45 Cal. (2d) 421, 428; Koplik v. C.P. Trucking Corp., 27 N.J. 1, 11-12; Haumschild v. Continental Casualty Company, 7 Wis. (2d) 130 (overruling Buckeye v. Buckeye, 203 Wis. 248); Bodenhagen v. Company, 5 Wis. (2d) 306, modified in 95 N.W.2d 822. And see Kelso: Accidents and Conflict of Laws, 33 Ind. L.J. 297; Ford; Interspousal Liability for Automobile Accidents, 15 U. Pitt. L. Rev. 397; note, 68 Harv. L. Rev. 1260; comment, 15 Wn. Lee L. Rev. 266, 275-276. In commenting upon the Koplik case, supra, Professor Seavey has recently expressed disagreement with the Connecticut decision in Bissonnette v. Bissonnette, 145 Conn. 733, which followed Bohenek v. Niedzwiecki, 142 Conn. 278, supra. 1958 Annual Survey of American Law 487, 488 (34 N.Y.U.L. Rev. 527, 528).
However, none of these decisions have been referred to by the parties, and we find no occasion for purposes of this case either to adopt or to censure the views which they advance (cf. Lumbermens Cas. Co. v. Blake, 94 N.H. 141), or to question the soundness of the rule applied in Miltimore v. Company and Boisvert v. Boisvert, supra. The latter cases both involved causes claimed to have arisen after marriage, out of conduct in Massachusetts; and the view adopted has been reinforced by Callow v. Thomas, 322 Mass. 550, a case since decided, where it was held that following annulment of a marriage valid when the alleged acts of negligence took place (p. 555), a wife may not maintain an action against her former spouse based upon his conduct during the marriage, "for the fundamental reason that because of the marital relationship no cause of action ever came into existence." Id., 552.
The issue before us in this case, however, is not that of whether a wife may maintain an action against her spouse for a wrong which occurred in Massachusetts after the marriage. In the language of Koplik v. C.P. Trucking Co., supra, 3, "No conflict of laws problem is presented with respect to [the plaintiff's cause of action before marriage] for both [Massachusetts and New Hampshire] recognize her right to sue in such a situation. The issue here is simply whether the subsequent marriage before judgment extinguishes the right to prosecute the action." See anno. 43 A.L.R. (2d) 632, supra, 642, s. 4.
As a preliminary matter, it may be observed that neither the law of New Hampshire, nor that of Arkansas, where the marriage took place, would operate to preclude recovery by the plaintiff wife unless required by the law of Massachusetts. See Katzenberg v. Katzenberg, 183 Ark. 626; Leach v. Leach, 227 Ark. 599; note, 34 N.D.L. Rev. 71.
We turn therefore to a consideration of Lubowitz v. Taines, 293 Mass. 39, supra, upon which the defendant relies to establish his right to dismissal, in accordance with the decisions of the New York and Connecticut courts in Coster v. Coster and Bohenek v. Niedzwiecki, supra. The Lubowitz case parallels the case now before us, in that in each case the accident occurred before the marriage. Unlike the situation in Callow v. Thomas, 322 Mass. 550, where it was held that no cause of action ever arose between the spouses, in Lubowitz v. Taines, supra, it was not questioned that a cause did arise, since the parties were admittedly unmarried when the accident occurred. Further, in the Lubowitz case the court nowhere held that the cause of action was extinguished by the subsequent marriage, or that its continued existence was conditioned upon the plaintiff's remaining unmarried to the defendant. See McCurdy; Personal Torts Between Spouses, 4 Villanova L. Rev. 303, 325; footnote 135. Cf. Restatement, Conflict of Laws, s. 605.
Instead, the court relied upon Massachusetts General Laws (Ter. ed.) c. 209, s. 6 which provides: "A married woman may sue and be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife." For aught that appears in the opinion, the decision rested upon a "prohibition of suit" (Gray v. Gray, supra, 85) or the unenforceability of the plaintiff's cause, and not upon any substantive extinguishment of the cause by marriage. The English case of Gotliffe v. Edelston, [1930] 2 K.B. 378, to which the court referred in some detail, has since been overruled, as "wrongly decided" and "not good law." Curtis v. Wilcox, [1948] 2 K.B. 474, 482.
We conclude that the Lubowitz case does not stand for the proposition that marriage operated to deprive the plaintiff of her cause of action, but establishes merely that she may not enforce it against her husband in Massachusetts. This conclusion is enforced by the language used in Pittsley v. David, 298 Mass. 552, where discussion of the Lubowitz case indicates that the wife's disability to maintain her action in that case rested upon the husband's "immunity from actions at law by the wife," rather than upon any extinguishment of the cause because of marriage or any "universal legal identity" resulting therefrom. Id., 553. The holding in the Pittsley case that the employer's vicarious liability for the husband's conduct was enforceable, implies that a cause of action in favor of the wife was there considered to have arisen from the husband's conduct. See Miltimore v. Company, 89 N.H. 272, supra. Thus we find in the Massachusetts decisions no plain indication that under the law of that jurisdiction the marriage of the parties extinguishes a pre-existing cause of action between them.
Absent such a holding in Massachusetts, there is no reason for this court to hold that the plaintiff's cause of action which arose in Massachusetts was extinguished under the law of Arkansas where the marriage was later performed, or under the law of New Hampshire where the parties resided at all material times. Hence the pending action may be maintained in New Hampshire, and the defendant's motion should be denied.
Motion denied.
All concurred.