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Jon Lewis
Jon Lewis
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Can a Wife Sue a Husband?

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Interspousal immunity governs the issue of whether a wife can sue her husband in tort for injuries that she sustained in an automobile accident due (at least in part) to his negligence.

The “old” rule in Alabama was that the common law principle of interspousal immunity applied to claims of this nature. This prohibited a wife from suing her husband and/or suing on her on behalf.

Years ago, interspousal tort immunity was a consequence of the legal identity of husband and wife. Husband and wife were considered as one person, and that person was the husband, so it was objectionable to permit a tort suit between two spouses. With the passage of statutes on the rights of married women, however, a wife was given a separate legal identity and a separate legal estate in her own property, thus allowing personal injury actions between spouses.

Alabama abolished interspousal immunity in Johnson v. Johnson, 201 Ala. 41, 77 So. 335 (1917). Because the legislature gave the wife an action against the husband for injuries to her property rights, the Johnson Court held that the legislature did not intend to deny the wife the right to sue her spouse separately, in tort, for damages arising from assaults upon her person. Johnson was followed by the Fifth Circuit in Bonner v. Williams, 370 F.2d 301 (5th Cir.1966), holding that a wrongful death action may be maintained by the deceased spouse’s personal representative or dependent against the tortfeasor spouse or his estate.

This rule was codified in Alabama as follows;

§ 30-4-11. Wife to sue and be sued alone upon contracts, torts, etc.

The wife must sue alone upon all contracts made by or with her, or for the recovery of her separate property or for injuries to such property, or for its rents, income or profits, or for all injuries to her person or reputation; and upon all contracts made by her, or engagements into which she enters and for all torts committed by her, she must be sued as if she were sole. Ala.Code § 30-4-11 (1975).

This section has been used for a wife to sue husband for a willful assault and battery or tort. See Hayes v. Hayes, 15 Ala.App. 621, 74 So. 737 (1917); Johnson v. Johnson, 201 Ala. 41, 77 So. 335 (1917); Harris v. Harris, 211 Ala. 222, 100 So. 333 (1924); Penton v. Penton, 223 Ala. 282, 135 So. 481 (1931); Owens v. Auto Mut. Indem. Co., 235 Ala. 9, 177 So. 133 (1937).

In addition, this section has been held broad enough to include an action by the wife against her husband in detinue, ex delicto, for recovery of her personal property. See Bruce v. Bruce, 95 Ala. 563, 11 So. 197 (1892); Strength v. Thornton, 19 Ala.App. 475, 98 So. 206 (1923).

Finally,this section authorizes wife to sue husband for simple negligence interfering with wife’s operation of automobile. See Penton v. Penton, 223 Ala. 282, 135 So. 481 (Ala.1931). However, a wife cannot sue her husband if she is a passenger in the automobile her husband is driving, and her husband is negligent and causes a wreck. In that situation, Alabama’s guest passenger statute would apply, and we will discuss that statute in our next blog.