University of Miami Law Review University of Miami Law Review
Volume 23
Number 2
Winter-Spring 1969
Article 14
5-1-1969
Antenuptial Torts After Divorce Antenuptial Torts After Divorce
Philip Gerson
Follow this and additional works at: https://repository.law.miami.edu/umlr
Recommended Citation Recommended Citation
Philip Gerson,
Antenuptial Torts After Divorce
, 23 U. Miami L. Rev. 626 (1969)
Available at: https://repository.law.miami.edu/umlr/vol23/iss2/14
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CASES
NOTED
ANTENUPTIAL
TORTS
AFTER
DIYORCE
Plaintiff
was
the
mother
of
a
minor
child
whose
death
was
proxi-
mately
caused
by
the
negligence
of
the
defendant.
Thereafter,
the
plaintiff
and the
defendant
were
married.
Subsequent
to
their
divorce,
the
plaintiff
brought
an
action
against
the
defendant
alleging
negligence
under
the
Florida
wrongful
death
statute.'
The
defendant
moved
for
summary
judgment
on
the
ground
that
the
plaintiff's
right
of
action
was
ex-
tinguished
by
the
marriage.
The
District
Court
for
the
Northern
District
of
Florida
held,
motion
granted:
under
Florida
law,
a
former
spouse
can-
not
be
sued
for
an
antenuptial
tort,
because
the
marriage
relation
ex-
tinguishes
all
rights
of
action
between
spouses
and
such
rights
of
action
are
not
re-created
or
revived
by
divorce.
Gaston
v.
Pittman,
285
F.
Supp.
645
(N.D.
Fla.
1968).
The
common
law
has
long
recognized
the
immunity
from
suit
be-
tween
spouses,
which
is
historically
based
on
the
unity
doctrine.
2
Ac-
ceptance
of
this
long
standing
doctrine
has
eroded
with
time
as
it
has
been
applied
to
property
3
and
contract
4
rights,
but
the
overwhelming
majority
of
jurisdictions
still
hold
that
spouses
may
not
sue
each
other
for
personal
torts.
5
Many
jurisdictions
now
emphasize
other
justifications
for
this
position,
such
as
the
public
interest
in
the
protection
of
family
1.
FLA.
STAT.
ยง
768.03
(1967).
2.
This
doctrine
holds
that
during
marriage
the
husband
and
wife
are
one
person
in
the
eyes
of
the law,
and
that
all
personal
legal
rights
and
duties
depend
upon
their
unity.
Phillips
v.
Barnet,
1
Q.B.D.
436
(1876);
W.
BLACKSTONE,
COMMENTARmS
ON
THE
LAWS
OF
ENGLAND
442
(Lewis's
ed.).
Put
another
way,
"Under
the
common
law
the
woman
and
the
man
became
one
person
upon
marriage,
and
that
person
was
the husband."
Taylor
v.
Dorsey,
155
Fla.
305,
313,
19
So.2d
876,
880
(1944).
Since
the
husband
and
wife
had
a
singular
legal
identity
and
since
a
person
could
not
sue
himself,
no
cause
of
action
could
arise
in
favor
of
one
spouse
against
the
other.
Thompson
v.
Thompson,
218
U.S.
611
(1910)
;
Tresher
v.
McElroy,
90
Fla.
372,
106
So.
79
(1925);
Wallach
v.
Wallach,
94
Ga.
App.
576,
95
S.E.2d
750
(1956);
Brown
v.
Gosser,
262
S.W.2d
480
(Ky.
1953)
(rejecting
the
unity
doctrine)
;
Harvey
v.
Harvey,
239
Mich.
142,
214
N.W.
305
(1927).
The
effect
of
the
doctrine
has
been
that
"marriage
acts
as
a
perpetually
operating
discharge
of
all
wrongs
between
man
and
wife,
committed
by
one
upon
the
other."
Abbott
v.
Abbott,
67
Me.
304,
307,
24
Am.
R.
27,
29
(1877).
3.
Based
on
the
construction
of
the
married
women's'
emancipation
acts,
a
wife
may
sue
her
husband
where
her separate
property
is
involved.
White
v.
White,
58
Mich.
546,
25
N.W.
490
(1885);
Carney
v.
Gleissner,
62
Wis.
493,
22
N.W.
735
(1885).
4.
Based
on
the
construction
of
the
married
women's
emancipation
acts,
a
wife
may
sue
her
husband
where
contract
rights
between
them
are
involved.
Mathewson
v.
Mathewson,
79
Conn.
23,
63
A.
285
(1906);
Smith
v.
Hughes,
292
Ky.
723,
167
S.W.2d
847
(1943)
Trayer
v.
Setzer,
72
Neb.
845,
101
N.W.
989
(1904).
5.
A
well
developed
discussion
of
the
majority
position
may
be
found
in
Smith
v.
Smith,
205
Ore.
286,
287
P.2d
572
(1955).
For
a
collection
of
cases
see
41
Am.
JuR.
2d
Husband
and
Wile
ยง
522
(1968);
41
C.J.S.
Husband
and
Wife
ยง
396
(1944);
Annot.,
43
A.L.R.
2d
632,
636-41
(1955).
CASES
NOTED
harmony,
6
the
dangers
of
fraudulent
claims
against
insurance
companies,
7
the
availability
of
appropriate alternative
remedies,
8
and the
interest
in
final
settlement
between
parties
in
divorce proceedings.
9
Attack
upon
this
rule
most
often
revolves
around
the
construction
of
the
married
women's
emancipation
acts
of
the
several
states."
0
Most
states
have
strictly
construed
these
statutes
so
as
to
deny
a
right
of
action
against
a
spouse,"
while
the
minority
of
states
which
allow
interspousal
6.
Thompson
v.
Thompson,
218
U.S.
611
(1910); Corren
v.
Corren,
47
So.2d
774
(Fla.
1950);
Bandfield
v.
Bandfield,
117
Mich.
80,
75
N.W.
287
(1898);
Patenaude
v.
Patenaude,
195
Minn.
523, 263
N.W.
546
(1935);
Romero
v.
Romero,
58
N.M.
201,
269
P.2d
748
(1954);
Tanno
v.
Eby,
78
Ohio
App.
21,
68
N.E.2d
813
(1946);
Smith
v.
Smith,
205
Ore.
286, 287
P.2d
572
(1955).
In
a
dramatic
overstatement
of
the
policy
behind
the rule
one
court
has
stated:
[If
suits between
spouses
were
allowed]
[t]he
flames
which
[such]
litigation
would
kindle
on
the
domestic
hearth
would
consume
in an
instant
the
conjugal
bond
and
bring
on
a
new
era
indeed-an
era
of
universal
discord,
of
unchastity,
of
bastardy,
of
dissoluteness,
of
violence,
cruelty and murders.
But
will
the courts
expose
this
fundamental
relation
to the
consequences
of
unbridled
litigation?
Never.
Smith
v.
Smith,
14
Pa.
D.
&
C.
466, 468
(1930).
7. It
is
suggested
that
the
potential
gain
by
a
defendant
husband
from
a
judgment
for
his wife
to be
paid by
an
insurance company
would
offer
an
incentive
for fraudulent
claims
that
would
be
difficult
to
disprove
because
of
the intimate
relationship between
parties.
See
Smith
v.
Smith,
205
Ore.
286, 287
P.2d
572
(1955).
But
see
Brown
v.
Gosser,
262
S.W.2d
480
(Ky.
1953)
;
Courtney
v.
Courtney,
184
Okla.
395,
87
P.2d
660
(1939).
8.
See
Main
v.
Main,
46
Ill.
App.
106
(1892);
Abbott
v.
Abbott,
67
Me.
304,
24
Am.
R.
27
(1877);
Bandfield
v.
Bandfield,
117
Mich.
80,
75
N.W.
287
(1898);
Austin
v.
Austin,
136
Miss.
61,
100
So.
591
(1924).
9.
See
Main
v.
Main,
46
Ill. App.
106
(1892)
;
Abbott
v.
Abbott,
67
Me.
304,
24
Am.
R.
27
(1877);
Patenaude
v.
Patenaude,
195
Minn.
523,
263
N.W.
546
(1935).
One
court
has
held
that
there
is
a
presumption
that
all
claims
between
parties
were
settled
in
the
divorce
proceeding.
Schultz
v. Christopher,
65
Wash.
476,
118
P.
629
(1911).
10.
While
the
differences
between
these
statutes
are
substantive
in
some
cases,
Florida's
statute
may
be
considered
typical.
FLA.
STAT.
ยง
708.08
(1967)
provides:
Every
married
woman
is
hereby
empowered
to
take
charge
of,
and
manage
and
control
her
separate
property,
to
contract
and
to
be
contracted
with,
to
sue
and
be
sued,
and
to
sell,
convey,
transfer,
mortgage,
use
and
pledge
her
property,
real
and
personal,
and
to
make,
execute
and
deliver
instruments
and
documents
of
every
character,
without
restraint,
without
the joinder
or consent of
her husband,
in
all
respects
as
fully
as
if
she
were
unmarried.
Every
married
woman,
without
the joinder
or consent
of
her
husband,
shall
have
and
may
exercise
all
rights
and
powers
with
respect
to
her
separate
property,
income
and
earnings,
and
may
enter
into,
obligate herself to
perform,
and
enforce
contracts
or
undertakings to the
same
extent
and
in
like
manner
as
if
she were
unmarried;
provided,
however,
that
no
deed,
mortgage
or
other
instrument
conveying
or
encumbering
real
property
owned
by
a
married
woman
shall
be
valid
without
the joinder
of
her
husband;
provided,
further,
that
any
claim
or
judgment
against
any
married
woman
shall
not
be
a
claim
or
lien
against
such
married woman's
inchoate
right
of dower in
her
husband's
separate
property.
Another
line
of
attack
has
been
based
on
constitutional
rights
to
redress
all legal
wrongs.
Courtney
v. Courtney,
184
Okla.
395,
87
P.2d
660
(1939).
One
United
States
District
Court
has
held
that
the
Florida Constitution
confers
such
a
right
on
married
women.
Alexander
v.
Alexander,
140
F.
Supp.
925
(W.D.S.C.
1956).
But
this
decision
has
been expressly
rejected
by the
Florida
Supreme
Court
as
an
incorrect
statement
of
Florida
law.
Bencomo
v.
Bencomo,
200
So.2d
171
(Fla.
1967).
11.
The
basis
of
these decisions
is
that
the
statutes
did
not
abrogate
the
common
law
rule
of
unity
or
its
attendant
immunity
to
create
a
new
right
of
action
in
the
wife
that
was
not
recognized
by the
common law.
Instead, the
legislatures
merely
intended to
free
the
wife
of
the
procedural
barrier
of
joinder
of
the
husband
so
that
she
could
sue
and
be
sued
on
her
own
behalf
as
well
as
manage
her
own
property.
Thompson
v.
Thompson,
218
U.S.
611
628
UNIVERSITY
OF
MIAMI
LAW
REVIEW
[VOL.
XXIII
claims
for
torts
have
paved
the
way for
this
development
by
liberal
con-
struction
of
the
statutes.
2
Most
courts
have
decided
that
the
right
of
action
for
antenuptial
torts
is
extinguished
upon
the
marriage
of
the
parties,
and
thus
allow no
suit
during
marriage
for
an
antenuptial
tort." The
majority
of
jurisdic-
tions
have
likewise
held
that
since
no
right
of
action
arose for
torts
com-
mitted
during marriage,
4
there
is
therefore
no
basis for
suit
after
termi-
nation
of
the
marriage
because
divorce
cannot
re-create
that
which
never
existed.'
5
(1910); Corren
v.
Corren,
47
So.2d
774
(Fla.
1950)
;
Hudson
v.
Hudson,
226
Md.
521,
174
A.2d
339
(1961);
Koenigs v.
Travis,
246
Minn.
466,
75
N.W.2d
478
(1956)
;
Scales
v.
Scales,
168
Miss.
439,
151
So.
551
(1934)
;
Romero
v.
Romero,
58
N.M.
201,
269
P.2d
748
(1954);
Raines
v.
Mercer,
165
Tenn.
415,
55
S.W.2d
263
(1932);
Furey
v.
Furey,
193
Va.
727,
71
S.E.2d
191 (1952)
;
Schultz
v.
Christopher,
65
Wash.
476,
118
P.
629
(1911);
Staats
v.
Co-Operative
Transit
Co.
125
W.
Va.
473,
24
S.E.2d
916
(1943).
Some
courts
have
emphasized
the
anomaly
which
would
be
produced
by
giving
the
wife
a
right
of
action.
Since
at
common law
neither
spouse could
sue
the
other,
construction
of
the
married
women's
emancipation act
to
allow
suit
by the
wife
would
confer
no
equal
right
in
the
husband:
At common
law there
was
no
right
of
action
either
by
husband
or
wife
against
the
other
for
a
personal
tort.
There
was
absolute
equality
in
that
respect.
Therefore
there
was no
occasion
to
emancipate the
wife
with
reference
to
such
torts,
because
the
husband
was
under the
same
sort
of
disability
as
the
wife.
[If
the
statute
gave
the
wife
a
right
of
action,]
we
would have
the
novel
situation
of
the
wife
having
a cause
of
action against
her
husband
for
a
personal
tort,
while
the
husband
would
have
no
such
right
against
his
wife;
for
there
is
nothing
either
in
our
Constitution
or
statutes
which
gives
any
such
right to the husband.
Austin
v.
Austin,
136
Miss.
61,
72,
100
So.
591,
592
(1924).
At
least
one
state
has
statutorily
forbidden
suits
between
spouses
during
coverture.
ILL.
ANN.
STAT.
ch.
68,
ยง 1
(1959).
12.
These
jurisdictions
generally
hold
that
the
married
women's
emancipation
acts
or
the
state
constitutions
have
abrogated
the
unity
doctrine.
Bennett v. Bennett,
224
Ala.
335,
140
So.
378
(1932)
;
Katzenberg
v.
Katzenberg,
183
Ark.
626,
37
S.W.2d
696
(1931)
;
Rains
v.
Rains
97
Colo.
19,
46
P.2d
740
(1935)
;
Brown
v.
Brown,
88
Conn.
42,
89
A.
889
(1914)
;
Brown v.
Gosser,
262
S.W.2d
480
(Ky. 1953);
Lorang
v.
Hays,
69
Idaho
440,
209
P.2d
733
(1949);
Gilman
v.
Gilman,
78
N.H.
4,
95
A.
657
(1915);
Crowell v.
Crowell,
180
N.C.
516,
105
S.E.
206
(1920);
Fitzmaurice
v.
Fitzmaurice,
62
N.D.
191,
242
N.W.
526
(1932);
Courtney v. Courtney,
184
Okla.
395,
87
P.2d
660
(1939)
;
Prosser
v.
Prosser,
114
S.C.
45,
102
S.E.
787
(1920)
;
Scotvold
v.
Scotvold,
68
S.D.
53,
298
N.W.
266
(1941);
Taylor
v.
Patten,
2
Utah
2d
404,
275
P.2d
696
(1954);
Wait
v.
Pierce,
191
Wis.
202,
209
N.W.
475
(1926).
One
statute
expressly
provides
for interspousal
suits
during
coverture. N.Y.
GEN.
OBLIc.
LAW
ยง
3-313(2)
(McKinney
1964).
13.
Carmichael
v.
Carmichael,
53
Ga. App.
663,
187
S.E.
116
(1936);
Hunter
v.
Livingston,
125
Ind.
App.
422,
123
N.E.2d
912 (1955)
(sympathizing
with the
minority
position)
;
Hudson
v.
Hudson,
226
Md.
521, 174
A.2d
339
(1961)
;
Lubowitz v.
Taines,
293
Mass.
39,
198
N.E.
320
(1936)
;
Scales
v.
Scales,
168
Miss.
439,
151
So.
551 (1934);
Patenaude
v.
Patenaude,
195
Minn.
523,
263
N.W.
546
(1935)
;
Orr
v.
Orr,
36
N.J.
236,
176
A.2d
241
(1961)
;
Raines
v.
Mercer,
165
Tenn.
415,
55
S.W.2d
263
(1932);
Furey
v.
Furey,
193
Va.
727,
71
S.E.2d
191 (1952)
;
Staats v.
Co-operative
Transit
Co.,
125
W.
Va.
473,
24
S.E.2d
916
(1943);
Buckeye v. Buckeye,
203
Wis.
248,
234
N.W.
342 (1931)
(applying
Illinois
law).
One
state
has
held
that
antenuptial
agreements
providing
for
the
survival
of
antenuptial
rights
of
action
after
marriage
are
void
as
a
matter
of
public
policy.
Tanno v.
Eby,
78
Ohio
App.
21,
68
N.E.2d
813
(1946).
The two
Florida
decisions
on
this
point
have
used
the
language
that
the
right
of
action
"abates"
during
marriage,
instead
of
saying
it
is
extinguished
by
the marriage.
Webster
v.
Snyder,
103
Fla.
1131,
1132,
138
So.
755
(1932);
Amendola
v.
Amendola,
121
So.2d
805,
806
(Fla.
2d
Dist.
1960).
14.
See
note
5
supra.
15.
Bencomo v. Bencomo,
200
So.2d
171
(Fla.
1967);
Wallach
v.
Wallach,
94
Ga. App.
1969]
CASES
NOTED
The
combination
of
legal
relations
necessary
to involve
both
of
these
principles
has
heretofore
arisen
only
once,
in
the
case
of
Henneger
v.
Lomas.'
6
There
the
court
applied
both
principles
which,
when
read
together,
preclude
liability
for
antenuptial
torts
between spouses
after
divorce;
stating:
For
the reason
that
the marriage
extinguished
antenuptial
rights
of
action
for
tort
or
upon
contract
between
husband
and
wife,
the
wife
could
not,
after
divorce
from
her husband
or
his
death,
maintain
an
action
against
him
or
his
estate
for
any
injury
to
her
person
or
character
by
him
before
their
marriage
....
17
The
instant
case
adopts
the
view
taken
in
Henneger
as
a
correct
statement
of
the
law
in
Florida.'"
Observing
that
Florida
had
not
previously
decided
the
question
pre-
sented,'"
and
that
the
Florida
married
women's
emancipation
act
2
"
had
been
interpreted
so
as
not
to
give
a
wife
a
substantive
right
of
action
against
her
husband,
2
'
the
court
turned
its
attention
to
the
unity
doc-
trine.
22
The court
reasoned
that
any
right
of
action
possessed
by
the
plaintiff
was
merged
with
the
rights
of
the
defendant
upon
her
marriage
to
him,
and
that
the
effect
of
such
a
merger
was
to
abate the
right
of
action
against
him.
2
"
The
court
determined
that
since
the
right
of
action
was
extinguished
by
the
marriage,
divorce
could
not
re-create
it,
for
nothing
remained
of
it
which could
be
revived.
2
4
576,
95
S.E.2d
750
(1956);
Main v.
Main,
46
Ill.
App.
106
(1892);
Abbott
v.
Abbott,
67
Me.
304,
24
Am.
R.
27
(1877);
Bandfield
v.
Bandfield,
117
Mich.
80,
75
N.W.
287
(1898)
;
Strom
v.
Strom,
98
Minn.
427,
107
N.W.
1047
(1906); Smith
v.
Smith,
14
Pa.
D.
&
C.
466
(1930);
Schultz
v.
Christopher,
65
Wash.
476,
118
P.
629
(1911);
Phillips
v.
Barnet,
1
Q.B.D.
436
(1876).
16.
145
Ind.
287,
44
N.E.
462
(1896).
Other
cases
have
stated
the
same
rule
in
dicta.
See,
e.g.,
Spector
v.
Weisman,
40
F.2d
(D.C.
Cir.
1930);
Wallach
v.
Wallach,
94
Ga.
App.
576,
95
S.E.2d
750
(1956).
17.
Henneger
v.
Lomas,
145 Ind.
287,
291,
44
N.E.
462, 463
(1896).
18.
Gaston
v.
Pittman,
285
F.
Supp.
645,
646,
650
(N.D.
Fla.
1968).
19.
Id.
at
646.
20.
FLA.
STAT.
ยง
708.08
(1967).
See
note
10
supra.
21.
Gaston
v.
Pittman,
285
F.
Supp.
645,
646
(N.D.
Fla.
1968).
Accord,
Corren
v.
Corren,
47
So.2d
774
(Fla.
1950).
22.
Gaston
v.
Pittman,
285
F.
Supp.
645,
647
(N.D.
Fla.
1968).
At
this
point
the
court
thoroughly
discussed
the
common
law roots
of
the
unity
doctrine.
Id. at
647-48.
Other
Florida
cases
on
similar questions
have
based
their
holdings
on
the
unity
doctrine.
See Bencomo
v.
Bencomo,
200
So.2d
171
(Fla.
1967)
;
Shiver
v.
Sessions,
80
So.2d
905
(Fla.
1955)
;
Corren
v.
Corren,
47
So.2d
774
(Fla.
1950)
;
Taylor
v.
Dorsey,
155
Fla.
305,
19
So.2d
876
(1944)
;
Webster
v.
Snyder,
103
Fla.
1131,
138
So.
755
(1932);
Amendola
v.
Amendola,
121
So.2d
805
(Fla.
2d
Dist.
1960).
23.
Gaston
v.
Pittman,
285
F.
Supp.
645,
648
(N.D.
Fla.
1968).
Attention
was
directed
to
the
meaning
of
the
word
"abates."
Id.
at
648-49.
Other
jurisdictions
had
unanimously
held
that
marriage
extinguishes
all
antenuptial
rights
of
action,
see
note
13
supra,
and
the
court
for
present
purposes
held
that
the
words
"abate"
and
"extinguish"
have
the
same
meaning.
Gaston
v.
Pittman,
285
F.
Supp.
645,
648-49
(N.D.
Fla.
1968).
The
distinction would
become
important
in
a
case
where
the
marriage
was
invalid.
In
such
circumstances
the
word
"abate"
would
mean
suspend,
and
the
right
of
action
would
survive
the invalid
marriage.
Id.
at
649-50
(dictum).
24.
Gaston
v.
Pittman,
285
F.
Supp.
645,
649
(N.D.
Fla.
1968).
UNIVERSITY
OF
MIAMI
LAW
REVIEW
[VOL.
XXIII
If
the
Gaston
case is followed,
the
effect
would
be
to
increase
the
commitment
of
the
Florida
courts
to
the
fiction
of
the
unity
doctrine.
2 5
The
decision
has
foreclosed
the
opportunity
to
limit the
unity
doctrine
by
using
a
different
interpretation
of
the
word
"abate"
than
was
used
in
earlier
cases.
26
The result
is
an
extension
of
the doctrine
to
provide
im-
munity
where
neither
the
cause
of
action
nor
the
suit
upon
it
arose
during
marriage.
The
total
emancipation
of
women
in
the
last
century
makes
the
unity
doctrine
a
hollow
justification
upon
which to
hang
the
cloak
of
immunity.
Other rationales
27
offered
to
grant
immunity
in
suits during
coverture
for
antenuptial
torts,
or
after
divorce
for
torts
committed
during
coverture,
have
no
application
to
suits
for
antenuptial
torts
after
divorce.
The interest
in
the
preservation
of
domestic
harmony
is
vitiated
by
divorce.
2
1
Collusive
fraudulent
claims
against
insurance
companies
are
no
greater
danger
between
former
spouses
for
premarital torts
than
between
strangers,
because
the incentive
for
fraud,
which
is
the
potential
gain
by
the
defendant by
a
finding
of
liability,
29
does
not
exist
after
divorce.
0
25.
It
is
fictitious
to
the
extent
that
in
all
other
respects
FLA.
STAT.
ยง
708.08
(1967)
makes
a
married
woman
a
free
individual
with virtually
the
same
rights
toward
others
as
an
unmarried
woman.
See
Courtney v. Courtney,
184
Okla.
395,
87
P.2d
660
(1939).
26.
Interpretation
of
the
word
"abate"
to mean
suspend
during
marriage would
have
allowed
recovery in
the
instant
case
without
overruling
the
unity
doctrine's application
to
other
circumstances.
It
would
be
consistent
with
this
conclusion
to
continue
to
rule
that:
(1)
marital
suits
for
premarital
torts
are
not
maintainable,
for
the
right
of
action
is
suspended
during marriage;
(2)
marital
suits
for
marital
torts
are
not
maintainable
for
the
double
reason
that
no
right
of
action
arises
for
torts
committed
during
marriage,
and
even
if
such
right did
arise
it
would
be
suspended
during
the
marriage;
(3)
post
marital
suits
for
marital
torts
are
not
maintainable,
for
no
right
of
action
arises
for
torts
committed
during
marriage.
27.
It
is
interesting
to
note
that
the
court
justified
its
conclusion
solely
upon the
unity
doctrine,
while
more
recent
Florida
cases
have
given
some
attention
to
the
public interest
in
the
preservation
of
domestic
harmony.
See
Corren
v.
Corren,
47
So.2d
774
(Fla.
1950)
Shiver
v.
Sessions,
80
So.2d
905
(Fla.
1955).
28.
Critics
have
vehemently argued
that
the
act giving
rise
to
the
cause
of
action upon
which
relief
is
sought
and
the
readiness
to
seek
judicial
relief
show
that
even
before divorce,
marital
harmony
and
tranquility
are
already
destroyed
and
cannot
be
preserved
by
immunity
from
suit.
See
1
F.
HARPER
&
F.
JAMES,
THE
LAW
OF
TORTS
645-47
(1956);
W.
PROSSER,
HANDBOOK
OF
THE
LAW
OF
TORTS
883
(3d
ed.
1964);
McCurdy,
Torts
Between
Persons
in
Domestic
Relation,
43
HARV.
L.
REV.
1030,
1052-53
(1930);
Comment,
51
Nw.
U.L.
REv.
610,
613-14
(1956).
While
this
criticism
may
be
accurate
in
cases
involving
intentional
torts,
acts
creating liability
for
negligence
and
the
readiness
to
press
suit
against
an
insurance
company
need
not
destroy
domestic
harmony
and
tranquility.
In
Smith
v.
Smith,
205
Ore.
286,
287
P.2d
572
(1955)
the
court
stated:
[Tlhe
peace
and
domestic
tranquility
of
the
home
is
[not]
ended every
time
that
a
wife
is
shaken
up
by
the
inattentive
conduct
of
her
husband
in
operating the
family
automobile,
or
vice
versa.
Nor
can
it
be
said
that
domestic felicity
has
been
forever
lost
if
a
husband
slips
on a
carelessly oiled
kitchen
floor.
Id.
at
307,
287
P.2d
at
581.
29.
See
Smith
v.
Smith,
205
Ore.
286,
287
P.2d
572
(1955).
30.
Even if
this
were
not
the
case,
a similar
risk
of
fraud
exists
in
suits
between
friends
and
persons
enjoying
guest
status;
see
Courtney v. Courtney,
184
Okla.
395,
87
P.2d
660
(1939),
and
no
authority
suggests
that
such
suits
should
be
barred.
Where
divorce
has
not
destroyed
the incentive
for
fraud,
faith
in
judicial
competence
has overcome
the
fear
of
fraud.
Brown
v.
Gosser,
262
S.W.2d
480
(Ky.
1953).
CASES
NOTED
Justification
for
immunity
in
this
case
is
likewise
not
found
in
the
assertion
that
other
remedies
are
available
to
the
injured
spouse.
Some
courts
have
suggested
that
divorce
or
criminal
sanctions
brought
against
the
defendant
are
sufficient."
Aside
from
the
limited application
of
these
remedies,
3
2
they
are
in
all cases
inadequate
because
they
do
not
com-
pensate
the
plaintiff
for his
injuries.
3
Finally,
post
divorce
suits
for
personal
torts
have
been
barred
based
upon
the admonition
that
divorce
should
not
open
the
door to
litigation
and
should
act
as
a
final
settlement
of
tort
claims
between
parties.
34
Where
the
right
of
action
arose
before
marriage,
the marriage
was
an
obstacle
to
its
enforcement;
removal
of
the obstacle
by
divorce
should
no
more
affect
the
right
of
action
for
a
tort
than
it
would
affect
a
similar
right
of
action
for
property
or
in
contract.
As
the
result
of
the
instant
case,
a
strongly
criticised
legal
anomaly
has
been
extended
to
circumstances
which
by
their
unique
character
defy
all
rational
justifications
which
can
be
offered
for
similar
situa-
tions.
5
It appears,
however,
that
if
the
slightest
deviation from
the
blanket
immunity
of
the
common
law
is
to
be made,
the
cry
for
help
must
first
be
heeded
by
the legislature.
6
From
all
indications,
the
courts
are either
unwilling
or
unable
to
abolish
a
rule
of
law
which
has
been
obsolete
for
more
than
half a
century.
PHIIrP
GERSON
CONSTITUTIONAL
LAW-CAPITAL
PUNISHMENT
AND
THE
CHALLENGE
FOR
CAUSE
At
the
voir
dire
examination
in the
petitioner's
trial
for
murder
in
a
state
court
of
Illinois,
the prosecution
successfully
challenged for cause
forty-seven
of
the ninety-six
prospective
jurors
under
the
authority
of
the
following
statute:
In
trials
for
murder
it
shall
be
a
cause
for
challenge
of
any
juror
who
shall,
on
being
examined,
state
that
he
has
conscien-
tious scruples
against
capital
punishment,
or
that
he
is
opposed
to
the
same.'
31.
See
note
8
supra.
32.
These
remedies
would
not
even
apply
to the
instant
case,
for
the parties
are
already
divorced
and
no
criminal
action
could
be
brought
against
the
defendant
for
ordinary
negligence.
33.
See
Courtney v. Courtney,
184
Okla.
395,
87
P.2d
660
(1939).
34.
See note
9
supra.
35.
See
note
28
supra.
36.
Judicial
restraint
seems
to
be
the watchword
for
leaving
changes
of such
magnitude
to
the
legislature. See
Thompson
v.
Thompson,
218
U.S.
611
(1910); Corren
v.
Corren,
47
So.2d
774
(Fla.
1950).
1.
Il.
Rev.
Stat.,
chs.
38,
743
(1959).
1969]
