Heino v. Harper

We are asked in this case to reconsider the rule of law in Oregon that a person is immune from liability for negligent torts committed against his or her spouse. This court first announced the rule for this state as a matter of common law in Smith v. Smith, 205 Or 286, 287 P2d 572 (1955); see also Apitz v. Dames, 205 Or 242, 287 P2d 585 (1955), and later followed the rule in Chaffin v. Chaffin, 239 Or 374, 397 P2d 771 (1964); see also Moser v. Hampton, 67 Or App 716, 679 P2d 1379, aff’d by an equally divided court 298 Or 171, 690 P2d 505 (1984). Upon further consideration, however, we now agree with the overwhelming number of jurisdictions which have concluded that the public policy rationale traditionally asserted in favor of a doctrine of interspousal immunity for negligent torts does not support the rule. 1 Accordingly, we hold that the common- *350 law rule of interspousal immunity is no longer available in this state to bar negligence actions between spouses.

The facts, as alleged in plaintiffs complaint, present a typical case of interspousal negligence. On May 5, 1982, plaintiff Dorothy Heino (wife) was riding as a passenger in an automobile driven by her husband, defendant Arno Heino (husband). At an intersection in north Portland, husband turned left into the path of an oncoming automobile driven by defendant Harper. The resulting collision injured wife. Wife *351 filed a complaint alleging, inter alia, that husband was negligent in failing to keep a proper lookout, in failing to keep his automobile under proper control, and in failing to yield the right-of-way. 2 In his answer, husband asserted the defense of interspousal immunity. Based on that defense, he filed a motion for summary judgment. The trial court allowed the motion and entered final judgment in husband’s favor. The Court of Appeals affirmed, citing Moser v. Hampton, supra. Heino v. Harper, 81 Or App 106, 723 P2d 1082 (1986) (per curiam). We reverse.

We approach this case by first briefly discussing the common-law origins of the Smith rule; then we examine its application in the Oregon decisions, after which we extract, examine and analyze each of the public policy considerations that have been expounded for and against the common-law rule. Finally, we state our own analysis that we believe results in a different rule of responsibility for interspousal negligence in Oregon.

HISTORY OF COMMON-LAW INTERSPOUSAL IMMUNITY FROM TORT

This court first was called upon to declare whether the rule of interspousal immunity for negligent torts existed in Oregon in Smith v. Smith, supra. In approaching the problem, *352 the court said little about the English common-law antecedents of the doctrine, stating only:

“No judicial decisions need be cited for the proposition that at early common law neither spouse could maintain [an] action against the other for either a personal or a property tort, whether it was committed before or during marriage. The common-law rule of non-liability has been universally recognized. See Prosser on Torts, pp 898 and 899; and McCurdy, Torts Between Persons in Domestic Relation, 43 Harv L Rev 1031, et seq; Brandt v. Keller, 413 Ill 503, 109 NE2d 729 [(1952)] * *

Id. at 288. While this statement was accurate as far as it went, it failed fully to acknowledge how utterly different were the times and circumstances that saw the creation of the rule from those that prevailed when the Smith court chose to recognize the rule in Oregon.

The most comprehensive study of the doctrine of interspousal immunity in tort is found in Professor McCurdy’s article cited by the court in Smith: Torts Between Persons in Domestic Relation, 43 Harv L Rev 1030 (1930). We turn to that article for a brief overview of the origins of the doctrine in England.

“[At common law a] husband was entitled to his wife’s services and earnings whether performed in the home or elsewhere, for himself or another; and the husband was under a duty to support. A married woman had no capacity to sue or be sued alone in her own name, but wherever she had a substantive capacity, or was substantively the holder of a right, or subject to a duty, suit must be brought in the name of husband and wife, and judgment was enforced in favor of the husband or against both husband and wife. In the case of torts committed against a married woman, her legal personality was substantively recognized, and insofar as the tortious act caused injury to a legally recognized interest of the woman herself, it was a chose in action of the woman’s [although, as already noted, the husband was entitled to its use and any action for its enforcement had to be brought in his name as well] * * * [I]nsofar as the injury was to the husband alone, either by depriving him of some interest, such as services and earnings, or by increasing the burden of his duties, such as support, it was a chose in action of the husband’s. And the converse is likewise true. A married woman substantively had capacity to commit most torts, but her liability was in a sense suspended *353 during coverture, and the husband subjected. If she committed a tort during marriage, or committed a tort or contracted a debt before marriage, although the duty was substantively hers, suit must be brought against husband and wife, and judgment could be enforced against property of either * *

Id. at 1032-33 (footnotes omitted).

The effect of these and related disabilities and reciprocal obligations with respect to the property of either spouse had the cumulative effect at common law of making it impossible for one spouse to be civilly liable to the other for an act that, but for the relationship, would have been an actionable tort. Id. at 1033. As McCurdy explained it,

“[w]here the [tortious] 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 [in himself]. 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[, but the same procedural difficulties would exist throughout, i.e., any such action would feature the husband as both plaintiff and defendant — an unacceptable anomaly] * *

Id. As the foregoing suggests, it is difficult to state with absolute certainty whether the real impediment to interspousal tort actions at common law was substantive, procedural, or both. It nevertheless is clear that, whatever label is affixed to it, the rule arose out of views of the rights and duties of the parties to a marriage as that institution existed several hundred years ago in a society that viewed the relationship far differently than it is viewed today. To take but one example, a legal system that generally did not even recognize divorce would have no reason to consider the implications of dissolution of marriage without fault.

We think that it is equally clear that to refer to this state of the law, as did the court in Smith v. Smith, supra, as *354 the “common-law rule of non-liability” is an inaccurate oversimplification. The rule did not deny the responsibility of one spouse to make reparation for harm done to the other; it merely regarded the incidents of the relationship of marriage as the answer to the wrong. Where the husband was the wrongdoer, his duty to support the wife already existed; where the wrongdoer was the wife, any action against her had to include her husband as a defendant, and so the claim merged. It remained for the enactment of various Married Women’s Property Acts in the nineteenth century to provide the impetus for doing away with the bars to most kinds of litigation between spouses. See generally Smith v. Smith, supra, 205 Or at 290-95. Those acts and the other related legislation that proliferated in the last half of the nineteenth and the first part of the twentieth centuries were a reflection of the vastly changed social circumstances since the old rule came into existence. However, and in spite of those changes, which led finally even to the right to vote for women, the old rule of interspousal immunity for negligent torts was found still to be alive when, in 1955, this court first faced the issue. We turn now to a specific discussion of the Oregon experience.

OREGON CASES DEALING WITH INTERSPOUSAL IMMUNITY FROM TORT

As noted, the question of the existence of inter-spousal immunity as a part of the common law of Oregon came relatively late to this court. When it came, in 1955, it came in tandem with a case involving an intentional tort committed by one spouse against another. The two cases gave this court an opportunity to announce both the existence of the rule of interspousal immunity for tort and the limitations on the scope of that rule.

The negligence case was Smith v. Smith, supra. Like the present case, it involved an automobile accident. The wife alleged that the accident and her resulting injuries were caused by the gross negligence of her husband. This court, after the brief aside already quoted concerning interspousal immunity for tort at common law, then stated that it had the power to change the common law:

“If then, this action can be maintained, it must be because the common-law rule has been appropriately changed by statute, or should be changed by the court in the exercise of the power *355 to modify ancient rules of common law by reason of changed social conditions, resulting in a recognizable modification of the public policy of the state.”

Smith v. Smith, supra, 205 Or at 288.

Having outlined the scope of the inquiry that it felt required to undertake, the court turned first to an examination of whether the legislature had authorized negligence actions between spouses. It recognized that Article I, section 10, of the Oregon Constitution, assured that every person “shall have remedy by due course of law for injury done him in his person, property, or reputation,” and that the constitution separately provided, in Article XV, section 5, that

“[t]he property and pecuniary rights of every married woman, at the time of marriage or afterwards, acquired by gift, devise, or inheritance shall not be subject to the debts, or contracts of the husband[,]”

but the court found no basis for concluding that the common-law rule as the court perceived it had been changed by the constitution. Id. at 290-91, 295-96.

The court next turned to an extensive examination of the statutory provisions that might be argued to alter or abolish the doctrine. Once again, however, it could find no change. Id. at 291-95, 296-300. Having exhausted the constitutional and statutory possibilities, the court turned its attention to existing case law from around the country in order to determine whether changed conditions justified changing the doctrine.

The court began this portion of its opinion by considering each of the cases relied upon by the plaintiff, distinguishing many (but not all) on the grounds that they either involved an intentional tort, or were decided as a matter of statutory construction, or both. Id. at 299-306. Finding nothing compelling in the cases relied upon by the plaintiff, the court finally offered its own analysis as to the factors that dictated hewing to the common-law line:

“Influenced by the weighty dissent in Thompson v. Thompson, [218 US 611, 31 S Ct 111, 54 L Ed 1180 (1910), a United States Supreme Court case declaring the common law doctrine to be the law of the District of Columbia], * * * some courts have been greatly impressed and have espoused the *356 admittedly minority view. Clothed in the language of modernity they have heaped criticism upon the ancient, theory that husband and wife are one and have shown no little emotion in the process. They find no disruption of domestic tranquillity when a wife sues her husband for tort. They see no distinction between the criminal prosecution of a husband and the right of the wife to sue him for tort, nor do they see any difference between a wife’s right to sue for divorce because of cruelty and her right to sue for damages on account of the same.”

Id. at 305-6.

Having heaped a measure of scorn on “modernity,” the court acknowledged one of modernity’s principal spokespersons, Professor Prosser, and quoted his chief criticisms of adherence to the common-law rule:

“ ‘The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy — and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.’ ”

Id. at 306 (quoting Prosser, Law of Torts 903-4, § 99 (1941)). The Prosser statement had its intemperate elements, and the court made it clear that the statement had been selected for that reason:

“It would seem that a suit for divorce is brought for the approved purpose of ending the marital status which has already been destroyed. Not so a suit for negligence. One would suggest that in criminal prosecutions the plaintiff is the state, not the complaining witness * * *. The argument to the effect that when a husband has beaten his wife, the peace and harmony of the home has already been destroyed, is a valid one, but it applies with force only to intentional wrongs. We are sure that the learned jurist would not say that the peace and domestic tranquillity of the home is ended every time that a wife is shaken up by the inattentive conduct of her husband *357 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.

The court thus rejected, in a somewhat convoluted way, the argument that permitting such negligence actions would not disrupt domestic harmony because that harmony had been destroyed already. Its analysis consisted primarily of a simple statement of doubt — it was not persuaded. The court then went on to discuss two reasons it felt justified in adhering to the common-law rule, i.e., avoidance of collusive legal actions and the difficulties inherent in making available between spouses whose lives are so intimately intermingled tort actions whose parameters have grown up in a context of legal actions between parties not so intimately connected.

The court saw a substantial danger that permitting interspousal negligence actions would lead to actions that were a fraud on insurance companies:

“Much effort has been expended in attacking the classical theory that protection of the peace and harmony of the home constitutes the basis for nonliability. It would seem that the effect of suit upon marital felicity must depend upon the facts of the particular case. Action by a wife against her husband may conceivably engender great bitterness where it is based on an intentional wrong, or where there is serious and bitter disagreement as to the facts. It is not unusual that the credibility of witnesses is questioned in damage cases. If the action is not truly an adversary one, then the damage to peace and harmony becomes pure fiction. The minority rulings brush aside the risk of collusion by the husband and wife by the simple assertion that the courts know how to deal with collusive suits. But it is obvious that the risk of collusive action increases when the parties plaintiff and defendant are in confidential relationship. The risk of financial loss is ordinarily inducement enough to encourage a sturdy defense. Remove from a defendant the risk of loss and substitute the covert hope of profit and a situation arises which should give us pause. * * * We revere the jury system as the bulwark of individual liberty, but we are also realists, and we know that juries are, as a Kentucky mountaineer once said — ‘tolerable generous with other people’s money’, especially when the aroma of insurance permeates the courtroom. It would seem that if *358 husband and wife want protection by insurance, accident policies are available. We do see a substantial risk of miscarriage of justice when, in the peace and harmony of connubial bliss, a wife prepares a damage suit against her husband over the solitary protest of an insurance company.”

Id. at 310-11.

Finally, the court argued that negligence actions simply are not suited to the special and intimate relationship between spouses:

“One other consideration moves us to leave this issue to the wisdom of the legislature. At least so far as acts of negligence are concerned, courts and writers alike recognize that there are areas of marital intimacy within which actions for negligence should not be allowed, even under the minority rule. Those areas are not, and we think, cannot, be accurately defined. * * * It has also been suggested that the right of action in a wife should be qualified by applying the doctrine of assumption of risk in various cases arising within the purview of the marital relation. To adopt such a hazy criterion * * * would, in our opinion, open the doors to litigation but withhold the assurance of victory in many cases. We are not disposed to carve out the area within which actions for negligence should be allowed, or that other area in which the intimacy of the family relationship forbids recovery by the spouses. * * *

“Finding no clear-cut issue of public policy, and no line of demarcation to which we can hew, we must leave the right of husband or wife to sue the other for negligent tort to the tender mercies of the legislature.”

Id. at 312, 314.

We have examined the court’s reasoning in Smith at such length in order to identify fully all the rationales the court found to lead, separately or together — the court did not say which — to its conclusion that the common-law rule should be judicially recognized in Oregon. From this examination, we glean the following rationales: (1) No right of action for negligence has been granted between spouses by the Oregon Constitution or legislative enactment; (2) allowance of such actions would be contrary to the policy of the law to foster tranquility in the marital relationship; (3) allowance of such actions would lead to collusive actions designed to defraud insurance carriers; (4) allowance of such actions *359 would lead to a great number of cases being brought, far too many of which would involve circumstances so trivial that they should not permit recovery although they technically do involve negligent torts. To these we think there may fairly be added a fifth rationale, never specifically advanced by the court but implicit in its entire examination of the issue: the legislature, which over the years has vastly overhauled the legal relationship of spouses in a number of different ways, has sufficiently occupied this field of the law so that it is appropriate to leave to that body any further adjustments, including adjustments in the capacity of spouses to sue each other.

On the same day that it announced Smith, the court also made clear that the common-law incapacity of spouses to sue each other in tort extended only to negligent torts; intentional torts between spouses were actionable. The case announcing this principle was Apitz v. Dames, supra.

In Apitz v. Dames, supra, the executor of a deceased wife brought an action against the estate of the deceased husband for wrongful death. Husband had intentionally shot and killed his wife and then killed himself. The trial court dismissed the case on the ground of interspousal immunity from tort. The Supreme Court reversed.

The court’s opinion (also by the author of the Smith decision) is not a model of clarity. In fairness, this may well be due to the fact that Apitz was decided the same day as Smith so that policy discussions relating to the issues in each case kept impinging on the analysis in the other case. Certainly, there are passages in each opinion which could have resided satisfactorily — perhaps even more comfortably — in the other. There is also the oddity that, while Apitz refers to Smith on at least five occasions, Smith never once mentions Apitz. Those points noted, we examine Apitz.

The court had two questions to dispose of in Apitz. First, it had to determine whether the fact that one or both of the parties to the alleged tort was dead made a difference, i.e., whether the death of either spouse, without more, created a situation to which the common-law rule did not apply. Second, assuming the death of either or both spouses was not relevant, it had to decide whether the rationale for inter-spousal immunity for negligent torts extended also to intentional torts.

*360 The court concluded that the death of either or both parties was irrelevant. While it was true that the case was one for wrongful death under the “Death Act,” OCLA § 8-903, now ORS 30.020, that statute provided that wrongful death actions could be brought only if the plaintiffs decedent could have brought the same action had she lived:

“We think that the Oregon Death Statute means exactly what it says and that the remedy thereby given is available only if the ‘former’ (the deceased wife) might have maintained an action, had she lived, against the ‘latter’ (the guilty husband) for an injury done by the same act.”

Apitz v. Dames, supra, 205 Or at 252.

The court then went on, by way of dictum, to discuss at some length a question that might more usefully have been addressed in Smith:

“[Another] court [has] argued that the [interspousal] disability ‘does not inhere in the tort itself, but the question is whether there is any tort when husband assaults wife. To be sure, there is a crime, but the question remains whether the disability [at common law] was merely procedural or whether under the ancient common-law rule there was no substantive right, i.e., whether there was any ‘tort’.

“In a careful review of the early common-law rule, the Supreme Court of Mississippi said:

“ ‘* * * The wife’s disability to sue the husband was not alone for the lack of a remedy. That was merely incidental. It was for the lack of any cause of action. Therefore, in order to remove any disability of coverture affecting her right to sue, it was necessary to confer a right of action on her. Giving her a remedy to sue was not sufficient. * * *’ Austin v. Austin, 136 Miss 61, 100 So 591, 33 ALR 1388.

“To the same effect see the well-considered case of Wilson v. Brown, Tex Civ App, 154 SW 322, where it was directly held that there could be no recovery under the death statute unless the deceased could have maintained an action had he not died.

“The following cases indicate that the early common-law rule did not merely disable the wife to sue her husband for tort. It went further and held that actions which between strangers would be tortious, were not torts when committed by husband against wife. That is to say disability was not procedural only. The wife at ancient common law had no cause of action on which to sue. Harvey v. Harvey, 239 Mich *361 142, 214 NW 305; Wright v. Davis, 132 WVa 722, 53 SE2d 335; Thompson v. Thompson, 218 US 611; Libby v. Berry, 74 Me 286; Drake v. Drake, 145 Minn 388, 177 NW 624; Kennedy v. Camp, 14 NJ 390, 102 A2d 595; Conley v. Conley, 92 Mont 425, 15 P2d 922; McCurdy, Torts Between Persons in Domestic Relations, 43 Harv L Rev 1030, 1044.”

Id. at 252-53.

Having stated the foregoing, which would make it appear that the court was going to agree with and adopt the view that the common-law disability was substantive, not procedural, the court’s discussion then turned in a different direction and never returned to this one. We are left with the impression that the court believed that the common-law disability was substantive — a discussion, as we have noted earlier, far more important to the outcome of Smith v. Smith, supra, where it was not discussed at all, than to Apitz.

Concluding that the Death Act permitted the action then before it only if the wife could have maintained the action had she lived, id. at 254-55, the court turned to the issue that also concerns us — could the wife have sued the husband for intentionally shooting her if the result had not been fatal? As to this question, the court found the better reasoned authorities to allow such actions.

The court began by reviewing decisions from other jurisdictions holding that the infliction of an intentional tort on one spouse by the other spouse was actionable. 3 Perhaps the most vivid material the court cited came from Crowell v. Crowell, 180 NC 516, 105 SE 206 (1920), a case in which a wife sued her husband for assault and battery by infecting her with a venereal disease:

“Whether a man has laid open his wife’s head with a bludgeon, put out her eye, broken her arm, or poisoned her body, he is no longer exempt from liability to her on the ground that he vowed at the altar to ‘love, cherish and protect’ her. Civilization and justice have progressed thus far with us, *362 and never again will ‘the sun go back ten degrees on the dial of Ahaz.’ Isaiah, 38:8.”

Crowell v. Crowell, supra, 180 NC at 524, cited in Apitz v. Dames, supra, 205 Or at 259.

Having reviewed the authorities, the court summarized the situation facing it:

“It is undoubtedly true * * * that there is a two-fold basis for the common-law rule of immunity; first, the technical effect of the unity of husband and wife; and second, ancient concepts of public policy inherited from the feudal era whereby it was held that actions between husband and wife must not be permitted because they would destroy the domestic peace and felicity of the home. When it is recognized that the ancient concept of the legal unity of husband and wife has eroded beyond recognition, and when the facts are such that there remains no peace and felicity to be protected, we are impelled to inquire whether it may not be within the function of a common-law court to hold that[,] the basis for the rule of immunity having been removed, the rule itself must fall.”

Id. at 262-63.

Turning from the case law to the treatises and other writings, the court, somewhat surprisingly, found support and solace in the following now-familiar statement from Dean Prosser:

“ ‘The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy — and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. * * *’”

Id. at 264 (quoting Prosser, Law of Torts 903-04, § 99 (1941)). We call the use of this material from Prosser surprising because the same material, with the addition of only one more sentence, was quoted with disapproval in Smith v. Smith, supra, 205 Or at 306 (discussed ante at 356) .The court went on *363 to consider various other writings and found them generally accommodating of the idea of making intentional interspousal torts actionable.

Finally, the court turned to an examination of Oregon precedents, particularly the case of Cowgill, Adm’r v. Boock, Adm’r, 189 Or 282, 218 P2d 445 (1950), which held that a minor child could sue his father for an intentional tort. Finding that the precedents, such as they were, supported a rule of liability, the court held:

“We hold that when a husband inflicts intentional harm upon the person of his wife, the peace and harmony of the home has [sic] been so damaged that there is no danger that it will be further impaired by the maintenance of an action for damages and she may therefore maintain an action.”

Apitz v. Dames, supra, 205 Or at 271.

Thus, after Apitz and Smith, the state of the common law in Oregon was that a husband or wife was responsible to the other for intentional, but not negligent, torts.

The only other case prior to the present one in which this court spoke to the issue of interspousal tort immunity was Chaffin v. Chaffin, supra. There, a wife sought damages for injuries to herself and as administratrix of a deceased child and guardian ad litem of a second child as the result of an automobile accident. The complaint alleged negligence and gross negligence but did not allege an intentional tort. The Supreme Court held that plaintiff did not state a cause of action in either capacity. The court specifically was invited to overrule Smith v. Smith, supra, but declined to do so. Chaffin v. Chaffin, supra, 239 Or at 390. The court offered no new or different analysis, preferring to rest its position on what it described as the “excellent and exhaustive” opinion in Smith. Justice O’Connell, joined in part by Justice Sloan, dissented, arguing that the doctrine of interspousal immunity for negligent torts should be abolished. Neither justice, however, offered an extensive explanation of his reasons. And there the matter has rested in Oregon until today. 4

*364 IDENTIFICATION AND ANALYSIS OF KEY ELEMENTS FAVORING AND OPPOSING INTERSPOUSAL IMMUNITY FOR NEGLIGENT TORTS

From the foregoing discussion of the Oregon cases, it is possible to set forth the principal competing theoretical arguments advanced for and against retention of the doctrine of interspousal immunity for negligent torts. We do so here in outline form in order to facilitate further discussion and analysis:

A. Factors Favoring Retention of the Immunity Doctrine:

1. Maintenance of peace in the marital relationship;

2. Prevention of collusion between parties in litigation;

3. Practical difficulties in applying fully tort principles to a relationship as close and intimate as the marital relationship.

4. The doctrine should be abolished by the legislature, if at all.

B. Factors Favoring Abolition of the Immunity Doctrine:

1. Where the tort is intentional, marital harmony is already lost; the same is probably true whenever one spouse is prepared to sue the other;

2. Litigation between spouses on every other kind of legal theory presently is permissible; saving out only negligent torts is neither symmetrical nor otherwise rational;

3. Almost every other jurisdiction has abolished the doctrine.

The foregoing outline of the competing arguments assumes one thing — that the disability at common law was substantive; i.e., that the negligent infliction of harm by a spouse on the person of the other spouse was not a tort. As already indicated, the Apitz court seemed to assume as much, although it never got around to explaining itself. The question is important because, if the disability were only a procedural *365 one imposed by the common-law courts as an incident of those courts’ understanding of the consequences of marriage for the separate existence of husband or wife, we could now simply declare — as the Smith court ought to have done, in those circumstance — the disability abolished because the reasons for it are no longer present. We turn to that question.

“ Vir et uxor sunt quasi única persona, quia caro una et sanguis unus.” Bracton, lib. 5, fol. 416 (also cited as lib. 5, Tract. 5, cop. 25) cited in 2 Coke, The First Part of the Institutes of the Laws of England, § 291 (18th ed, Hargrove and Butler, eds, 1823). And with this “quasi” unity went a disability to sue inter se. But what kind of disability? Whatever its nature, Bracton’s statement shows that the disability probably already existed in the English common law by the time Columbus landed in the New World. A specific discussion appears in 1 Blackstone, Commentaries on the Laws of England 442-43 (1765):

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-[F]rench a feme-covert; * * * is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them; but for any thing besides necessaries, he is not chargeable. * * * If the wife be indebted before marriage, *366 the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant. [But a wife could be the victim of, and give testimony with respect to, a crime committed by her husband against her.] * * (Emphasis in original.)

On the other hand, Pollock and Maitland offer this summary of the law of husband and wife {‘baron et feme’) in the twelfth and thirteenth centuries:

“