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BETTY BURNS v. ERIT LAMAR BURNS

JANUARY 13, 1988

BETTY BURNS
v.
ERIT LAMAR BURNS



EN BANC:

PRATHER, JUSTICE, FOR THE COURT:

At issue in this appeal is the question of continuance of the judicially imposed rule of interspousal immunity in Mississippi. The Circuit Court of Alcorn, on a motion for judgment on the pleadings, dismissed a complaint filed by Betty Burns, against her husband, Erit Lamar Burns for an alleged assault and battery. The court ruled that the complaint was barred by the doctrine of interspousal immunity. This Court reverses the dismissal of that complaint.

I.

 The only facts before the Court are that on August 1, 1984, Erit Burns allegedly assaulted and battered his wife Betty Burns. Thereafter, Betty Burns sued in circuit court to recover for her injuries. In oral argument before this Court, counsel for the parties revealed that Mr. Burns and

 Mrs. Burns have separated and have filed for divorce in chancery court. *fn1

 II.

 Interspousal tort immunity is an ancient common law doctrine founded on the theory of the legal unity of husband and wife. 1 W. Blackstone, Commentaries 433.

 The case most often cited as a basis for the continuance of this doctrine in Mississippi is Austin v. Austin, 136 Miss. 61, 100 So. 591 (1924).

 In that case a wife sued her husband for injuries she sustained in a motor vehicle accident. Judgment was rendered for the husband. On Appeal the Mississippi Supreme Court affirmed the judgment for the husband. The wife argued that her husband was liable for his negligent acts under section 94 of our Constitution and section 2517 and 2518, Code of 1906 (93-3-1 and 93-3-3 [1972]) all of which emancipated women from the common law disability of coverture. The language of the provisions and statutes is as follows:

 Sec. 94. The legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or their power to contract in reference thereto. Married women are hereby fully emancipated from all disability on account of coverture. But this shall not prevent the legislature from regulating contracts between husband and wife; nor shall the legislature be prevented from regulating the sale of homesteads.

 Sec. 2517. Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effects on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or herefter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy and to make

 any contract with reference to it, and to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married.

 Sec. 2518. Husband and wife may sue each other.

 Concluding that nothing in the above language included the right of the wife to sue the husband for a tort against her person, the Austin Court reasoned:

 Our constitution and statutes on the subject were enacted for the purpose of striking down the inequalities existing between husband and wife. The intent was to put the wife on the exact equality with her husband - to emancipate her from the common-law slavery to her husband. It was not the purpose of our makers of our Constitution nor of the Legislature to entirely destroy the unity of man and wife with all the incidents flowing therefrom. One of the disabilities of coverture was that neither could testify against the other. It took a statute specifically removing that disability. Section 1916, Code 1906; Hemingway's Code, 1576. [Miss. Code Ann. 13-1-5 (1972).] Equality between them as to the acquisition, ownership and disposition of property, and the right to contract and be contracted with, and sue and be sued with reference to property and contract rights were the things aimed at. 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.

 The divorce courts and the criminal courts furnish ample redress to the husband and wife for such wrongs as thus. Husband and wife in these times have enough grievances for the courts and scandal mongers without by a strained construction another being added by the courts. If another is to be added, it must be done by the Legislature, not by the courts in the face of the great weight of authority both in numbers and reasoning. It would be hard to conceive of what good purpose would be accomplished by such suits.

 100 So. at 592.

 The doctrine of interspousal immunity has been followed in this state in the following: Matthews v. State Farm Mutual Auto Ins. Co., 471 So. 2d 1223 (Miss. 1985) (cause of action in which one spouse sues the other for personal injury, incurred prior to marriage, is extinguished by the marriage and is not thereafter revived upon the divorce of the parties); State Farm Mutual Automobile Ins. Co. v. Nester, 459 So. 2d 787 (Miss. 1984); Aitken v. State Farm Mutual Automobile Ins. Co., 404 So. 2d 1040 (Miss. 1981); McNeal v. Administrator of Estate of McNeal, 254 So. 2d 521 (Miss. 1971) (one spouse has no right of action against the other to recover damages for personal injuries caused by the other); Ensminger v. Campbell, 242 Miss. 519, 134 So. 2d 728 (1961) (wife had no cause of action against husband at time of accident for injuries suffered while riding as passenger in his automobile, and no cause of action for such injuries accrued to her as a result of thereafter obtaining divorce, either against former husband or against administrator of his estate after death); Ensminger v. Ensminger, 222 Miss. 799, 77 So. 2d 308 (1955) (wife's suit for injuries caused by husband's negligent operation of automobile, dismissed as no liability exists between husband and wife for personal tort); McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877 (1937) (wife denied recovery against her husband because of the marital relationship between them although his negligence proximately caused her injury); Deposit Guaranty Bank and Trust Co. v. Nelson, 212 Miss. 335, 54 So. 2d 476, (1951) (daughter whose mother was allegedly shot and killed by the daughter's stepfather could maintain a death action against the stepfather, though, if the mother had not died, she would not have been able to have maintained an action against the stepfather for assault); Scales v. Scales, 168 Miss. 439, 151 So. 551 (1934) (right of action against husband arising out of automobile accident, existing in wife before marriage, held extinguished by marriage); H. L. Austin v. Maryland Casaulty Co., 105 So. 640 (Miss. 1925) (the law gives a wife no cause of action against her husband for injury done to her because under the law no legal wrong has been done to her by her husband).

 III.

 Appellant now implores this Court to reevaluate the viability of this judicially created doctrine and to judicially abrogate the doctrine in response to the present needs of society. Appellant presents Judge Ethridge's dissent in Austin in support of her argument:

 I cannot bring myself to consent to a decision of first impression in this state where the effect of the decision is to deny the enforcement of a right or the redress of a wrong, using these terms in a legal sense, where a person is sui juris. The principle that for every wrong there is a remedy is so vital and fundamental I cannot concur in a view that there is a legal wrong for which there is no redress in the courts or a legal right which cannot be enforced. 100 So. at 593.

 Since 1924 this Court has relied on Austin and the doctrine has been summarily followed in subsequent cases without examination of its underlying premises. A criticism of this Court's past history to perpetuate obsolete doctrines is found in Tideway Oil Programs Inc. v. Serio, 431 So. 2d 454, 462 (Miss. 1983) wherein this Court stated (referring to the denial of punitive damages in Chancery Court):

 Our recent cases, to be sure, have routinely cited the rule, as though there were no doubt ...


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