THELMA L. KLEIN, Plaintiff and Appellant, v. JOSEPH R. KLEIN, Defendant and Respondent, 58 Cal. 2d 692

PETERS, J. This ease involves the rule of interspousal immunity for personal torts. In this respect it is similar to Self v. Self, ante, page 683 [26 Cal.Rptr. 97, 376 P.2d 65], The instant ease, however, unlike the Self ease, involves a negligent tort rather than an intentional one. We are of the opinion that insofar as interspousal liability for tort is concerned there is no logical or legal reason for drawing a distinction between the two, and that for that reason, the rule announced in Self v. Self, supra, is here controlling.

In the instant case, Thelma Klein filed her complaint against Joseph Klein on January 5, 1962. The complaint contains two causes of action.

The first alleges that for some time prior to April 15, 1961, defendant owned and possessed a certain pleasure boat; that on April 15, 1961, plaintiff and defendant were married; that plaintiff has no right, title or interest in the pleasure boat; that on July 8, 1961, defendant invited plaintiff on the boat for a fishing trip; that after the trip was completed and the boat moored, plaintiff commenced to clean the exterior of the pleasure boat with the approval and consent of defendant; that defendant knew that the exterior deck of the boat was covered with a covering that when wet became so slippery and slick that it was difficult to maintain footing thereon; that in cleaning the pleasure boat it was necessary for plaintiff to use the exterior deck; that defendant knew that this was so; that prior to plaintiff walking on the exterior deck, defendant with full knowledge that plaintiff would have to use that deck, and contrary to his former practices and customs, did so negligently, carelessly and recklessly cause water to be placed on certain parts of the boat so that water ran down over the exterior deck so that it was not safe to walk on; that plaintiff while walking on the deck fell and broke her leg as a proximate result of the defendant’s negligence.

The second cause of action is predicated upon the same facts as the first except that it is alleged that defendant, knowing plaintiff would walk upon the deck in question, failed to warn her of the slippery and unsafe condition of which he had knowledge. The defendant demurred to this complaint on several grounds, among which was the alleged incapacity of the plaintiff to sue defendant because of the marital status of the parties. The demurrer was sustained without leave to amend on the ground that one spouse may not sue the other in California for a personal tort.

Judgment was entered in favor of defendant and the plaintiff has appealed. In Self v. Self, supra, ante, page 683, it was held that because the reasons for the rule of interspousal immunity for torts no longer exists, and because of certain legislative changes in recent years, that rule should be abandoned. Respondent contends that even if the rule of Peters v. Peters, 156 Cal. 32 [103 P. 219, 23 L.R.A. N.S. 699], is to be abandoned as to intentional torts, it should be retained as to negligent torts.

It is argued that to permit tort actions based on negligence to be maintained between spouses will cause the courts to be inundated with trifling suits, will tend to destroy conjugal harmony, and, because of the possibility of insurance, will encourage collusion, fraud and perjury. These arguments are not convincing. Similar arguments were advanced in the Self case as reasons for maintaining the old rule as to intentional torts and such arguments were there found not to be convincing. They are not any more convincing here.

It is our opinion that the logical and legal reasons set forth in the Self case that caused us to abandon the old rule as to intentional torts apply with equal force to negligent torts. It is of some significance that, so far as we have been able to ascertain, none of the 18 states that have adopted the more modern view have drawn such a distinction. i The argument about the maintenance of conjugal harmony was adequately answered in the Self case. The argument about inundating the courts with trifling suits is palpably unsound.

We have not been informed that such result has followed in any o£ the 18 states that have repudiated the old rule. In response to this same argument, in Spellens v. Spellens, 49 Cal.2d 210 [317 P.2d 613], Justice Schauer, in his concurring and dissenting opinion, at page 241 stated: “The court should not decline to entertain a meritorious action against a spouse . . . because of the dubious apprehension that in some future case trifling domestic difficulties may become the subject of litigation.” That is a sound argument.

The contention that there may be insurance involved, and that to permit such actions in such cases will encourage collusion, fraud and perjury, is also not convincing. Such arguments should be advanced to the Legislature, and not to the courts. Where such a danger is made clear to the Legislature it has not been slow to act. It is, of course, fundamental in the law of torts that any person proximately injured by the act of another, whether that act be willful or negligent, should, in the absence of statute or compelling reasons of public policy, be compensated.

The possibility of fraud or perjury exists to some degree in all cases. But we do not deny a cause of action to a party because of such a danger. There is no contention that any collusion is involved in the present ease. When, as and if that issue does arise in future eases the courts are equipped to meet it. As was said in Emery v.

Emery, 45 Cal.2d 421 [289 P.2d 218], a ease that held that an unemancipated minor could sue Ms minor brother or sister and parent for an intentional tort (pp. 431-432): “Defendants’ second argument, that tort actions between minor brothers and sisters will encourage fraud and collusion, is based on assumptions opposite from those on which their first argument is based. This argument assumes that the action is not in reality directed against the minor brother or sister of the plaintiff, but is in fact directed at his liability insurer.

If this assumption is correct, maintenance of such a tort action would not disturb the family peace and harmony; on the contrary, the ‘ domestic harmony will not be disrupted so much by allowing the action as by denying it.’ (Prosser on Torts [2d ed.] 677.) Moreover, although defendants’ statement that the existence of insurance, of which there is no evidence in the present case, ‘gives no cause of action where one did not exist before ’ is correct, by the same token the mere possibility of fraud or collusion because of the possible existence of liability insurance does not warrant immunity from liability where it would otherwise exist.

The interest of the child in freedom from personal injury caused by the tortious conduct of others is sufficient to outweigh any danger of fraud or collusion. As the Supreme Court of Washington said in reply to the same argument in a case involving an analogous situation [action by a child to recover for injuries caused by its parent’s negligent operation of a truck for business purposes], ‘The courts may and should take cognizance of fraud and collusion when found to exist in a particular case.

However, the fact that there may be greater opportunity for fraud or collusion in one class of eases than another does not warrant courts of law in closing the door to all cases of that class. Courts must depend upon the efficacy of the judicial processes to ferret out the meritorious from the fraudulent in particular eases. Rozell v. Rozell, supra [281 N.Y. 106 (22 N.E.2d 254, 123 A.L.R 1015)]. If those processes prove inadequate, the problem becomes one for the Legislature. . . .

Courts will not immunize tortfeasors from liability in a whole class of eases because of the possibility of fraud, but will depend upon the Legislature to deal with the problem as a question of public policy.’ (Borst v. Borst, supra, 41 Wn.2d 642, 653-654 [251 P.2d 149].)” This is a complete answer to the contentions of respondent. It would be a sad commentary on the law if we were to admit that the judicial processes are so ineffective that we must deny relief to a person otherwise entitled simply because in some future case a litigant may be guilty of fraud or collusion.

Once that concept were accepted, then all causes of action should be abolished. Our legal system is not that ineffectual. It is true that in some respects the law has drawn a distinction between intentional and negligent torts. It has been held in California that a child may sue his parent for an intentional tort, contrary to the common-law rule, but may not sue him for a negligent tort. (Emery v. Emery, supra, 45 Cal.2d 421 (a ease involving an intentional tort); Trudell v.

Leatherby, 212 Cal. 678 [300 P. 7] (a case denying to a minor any recovery against a defendant who was standing in the position of one in loco parentis); Gillett v. Gillett, 168 Cal.App.2d 102 [335 P.2d 736] (a case involving an intentional tort); Perkins v. Robertson, 140 Cal.App.2d 536 [295 P.2d 972] (a case involving both an intentional and negligent tort).) But, because these cases have made a distinction between the two types of tort in the parent-child relationship, there is no logical basis for extending the distinction to the husband-wife relationship.

As already pointed out, as to such relationship, the doctrines of identity of the persons, and of maintenance of the sanctity of the home, are no longer applicable. This being so, and there being no other argument to the contrary that is convincing, we are of the view that the rule of Self v. Self, supra, is here applicable. Judgment reversed. Gibson, C. J., Traynor, J., Tobriner, J., and White, J., concurred. Thus the Legislature enacted the guest law, now

section 17158, Vehicle Code, abolishing causes of action by guests in an automobile against the host for simple negligence, but retaining such an action based on the intoxication or willful misconduct of the host, Assigned by Chairman of Judicial Council.