252 Ga. 387
Supreme Court of Georgia.
March 14, 1984.
Rehearing Denied March 29, 1984.
married since 1964, Joseph and Mariah Harris had lived in a state of
separation for approximately ten years when on October 9, 1982, Mariah
Harris was struck by an automobile driven by Joseph and severely
injured. The automobile was owned by a woman with whom Joseph Harris
had lived, intermittently, for the past ten years and was driven by him
with her permission.
Mariah Harris sued for personal injury
in Chatham County Superior Court, alleging that Joseph was guilty of
gross negligence in his operation of the vehicle. She prayed for
$60,000 in compensatory damages and $1 million in punitive damages.
Joseph Harris filed a motion for summary judgment, premised on the
doctrine of interspousal tort immunity. See OCGA § 19–3–8 (Code Ann. §
53–501). It is from the trial court's order granting summary judgment
in Joseph Harris' favor that Mariah Harris now appeals. We reverse.
1. Appellant enumerates as error the granting of her husband's summary
judgment motion, contending that the common-law doctrine of
interspousal tort immunity, which since July 1, 1983, has been codified
in Georgia at OCGA § 19–3–8 (Code Ann. § 53–501) (Michie Supp.1983)1,
is unconstitutional in that the doctrine violates the due process and
equal protection provisions of the state and federal constitutions. We
disagree. The issues raised by appellant were decided adversely to her
position by this court in Robeson v. International Indemnity Co., 248
Ga. 306, 282 S.E.2d 896 (1981), and we see no reason to review that
ruling here. The 1983 amendment of OCGA § 19–3–8 (Code Ann. § 53–501)
did not effect any substantive change in the existing law of
interspousal immunity in Georgia. Moreover, the law as amended appears
to approve and perpetuate the then-existing case law, including
Robeson. Appellant's constitutional challenge is therefore without
2 2. We find merit, however, in appellant's argument
that the bar of interspousal tort immunity is not applicable under the
facts of this case.
In Robeson v. International Indemnity
Co., supra, a majority of this court was careful to point out the
traditional policy reasons favoring retention of the common-law
immunity rule, including (1) the belief that abrogation of interspousal
tort immunity would foster marital disharmony and disunity, and (2) the
justifiable fear of collusive or friendly lawsuits between spouses.
Neither of these traditional reasons, however, need concern us under
the facts of this case. At the time of the collision, Joseph and Mariah
Harris had been separated, despite sporadic reconciliation attempts,
for approximately ten years. During this time, Joseph cohabited with
another woman, a fact which was known to his wife. Thus there was,
realistically speaking, no “marital harmony” to be protected by
application of the interspousal immunity rule. Nor is there in the
record any hint of collusion between the Harrises or of intent to
defraud an insurance company. Under these peculiar facts we merely
hold, consistent with the principles reviewed in Robeson, that the
reasons for the immunity rule simply do not exist here, and that the
doctrine of interspousal tort immunity does not apply to bar Mariah
Harris' damages claim. Thus it was error for the trial court to grant
summary judgment for Joseph Harris.
All the Justices concur, except MARSHALL, P.J., and WELTNER, J., dissent.
WELTNER, Justice, dissenting.
“Tenth Annual Report on the Work of the Georgia Courts” published in
February 1984 by the Judicial Council of Georgia/Administrative Office
of the Courts, reflects that during the fiscal year July 1, 1982,
through June 30, 1983, the total number of domestic relations civil
filings lodged with the superior courts of this State was 69,802. That
represents 36.1% of the total filings of 193,155, and is the largest
single category of filings, exceeding the number of criminal matters
filed by over 10,000, and the number of general civil cases by almost
For each one of the unhappy family circumstances
reflected by the formality of a filing before the superior courts of
Georgia, there is an indeterminate number of other perhaps equally
unhappy family circumstances.
Now, the majority has invited
every disillusioned husband and every embittered wife to make use of
the courts to vent their spleen by seeking monetary damages.
every cruel or calumnious word, every insulting or threatening gesture,
may find itself discussed for days before a jury of twelve people,
consuming the time of the courts and the resources of the taxpayers who
Our new rule seems to be that those who are
sufficiently unhappy with and estranged from each other may file suit,
notwithstanding the doctrine of interspousal immunity.
In this case, the parties have been separated for several years. What if they were separated but one year?
What if they were separated but one day?
what if one spouse is blissfully unaware of deep trouble within the
other spouse, who remains silent until after the actionable deed or
word or gesture?
I am authorized to state that MARSHALL, P.J., joins in this dissent.
§ 19–3–8 (Code Ann. § 53–501), as it existed prior to July 1, 1983,
stated: “The husband is the head of the family, and the wife is subject
to him; her legal civil existence is merged in the husband, except
insofar as the law recognizes her separately, for her own protection
and for her benefit, or for the preservation of public order.” Present
OCGA § 19–3–8 provides: “Interspousal tort immunity, as it existed
immediately prior to the effective date of this Code section, shall
continue to exist on and after the effective date of this Code section.”