{ "id": 2763121, "name": "Consuelo R. FLORES, Plaintiff-Appellant, v. Augustine FLORES, Defendant-Appellee", "name_abbreviation": "Flores v. Flores", "decision_date": "1973-01-19", "docket_number": "No. 1022", "first_page": "601", "last_page": "604", "citations": [ { "type": "official", "cite": "84 N.M. 601" }, { "type": "parallel", "cite": "506 P.2d 345" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "205 Or. 286", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2428488 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/or/205/0286-01" ] }, { "cite": "306 S.W.2d 549", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10172784 ], "opinion_index": 0, "case_paths": [ "/sw2d/306/0549-01" ] }, { "cite": "205 Or. 242", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2428435 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/or/205/0242-01" ] }, { "cite": "83 N.M. 730", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336986 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0730-01" ] }, { "cite": "56 N.M. 343", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584773 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0343-01" ] }, { "cite": "9 P. 677", "category": "reporters:state_regional", "reporter": "P.", "year": 1886, "opinion_index": 0 }, { "cite": "3 N.M. (Gild) 659", "category": "reporters:state", "reporter": "N.M. (Gild)", "year": 1886, "opinion_index": 0 }, { "cite": "3 N.M. (John) 371", "category": "reporters:state", "reporter": "N.M. (J.)", "opinion_index": 0 }, { "cite": "42 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569729 ], "weight": 2, "year": 1938, "opinion_index": 0, "case_paths": [ "/nm/42/0412-01" ] }, { "cite": "12 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "219 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621065 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/219/0051-01" ] }, { "cite": "376 P.2d 65", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1962, "opinion_index": 0 }, { "cite": "26 Cal.Rptr. 97", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1962, "opinion_index": 0 }, { "cite": "107 Ariz. 267", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4212811 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ariz/107/0267-01" ] }, { "cite": "13 Ariz.App. 442", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1213745 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/ariz-app/13/0442-01" ] }, { "cite": "35 A.L.R.2d 1190", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1952, "opinion_index": 0 }, { "cite": "56 N.M. 483", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584751 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0483-01" ] }, { "cite": "37 N.M. 296", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575370 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0296-01" ] }, { "cite": "73 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5319808 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0211-01" ] }, { "cite": "10 A.L.R.2d 966", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1949, "opinion_index": 0 }, { "cite": "53 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580771 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/53/0198-01" ] }, { "cite": "68 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718452 ], "weight": 4, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0215-01" ] }, { "cite": "500 P.2d 771", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1972, "opinion_index": 0 }, { "cite": "81 Wash.2d 183", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1064097 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/wash-2d/81/0183-01" ] }, { "cite": "187 N.W.2d 236", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1971, "opinion_index": 0 }, { "cite": "385 Mich. 39", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1915934 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/mich/385/0039-01" ] }, { "cite": "58 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587518 ], "weight": 5, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0201-01" ] } ], "analysis": { "cardinality": 555, "char_count": 8866, "ocr_confidence": 0.708, "pagerank": { "raw": 5.338501093636582e-07, "percentile": 0.9431735209272819 }, "sha256": "4b9b9dead7a31ff5b9e5195a6c8ab70f1887254b8fd9bdff68d9e2fc97967050", "simhash": "1:936f3943a8241428", "word_count": 1483 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "Consuelo R. FLORES, Plaintiff-Appellant, v. Augustine FLORES, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nHusband-defendant knifed plaintiff-wife, inflicting personal injuries. Wife sued for damages which included loss of wages and medical expenses. The trial court granted summary judgment for defendant on the basis that \u201c. . . Plaintiff is precluded from suing the Defendant in tort. . . .\u201d We reverse, holding that one spouse may sue the other for intentional torts. We also discuss the damage claims of lost wages and medical expenses.\nSuits between spouse for intentional torts.\nSection 21-6-6, N.M.S.A. 1953 (Repl. Vol. 4) states: \u201cA married woman shall sue and be sued as if she were unmarried.\u201d Romero v. Romero, 58 N.M. 201, 269 P.2d 748 (1954) held this statute \u201c. . . removed the common law procedural barrier that a wife must join with her husband in all actions for or against her, but . it did not create a substantive right of action against her husband for a tort committed against her. . . .\u201d Plaintiff challenges the correctness of this interpretation of \u00a7 21-6-6, supra, because of decisions in other states. See Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972).\nIt is unnecessary to consider the meaning of \u00a7 21-6-6, supra. We assume, in this case, that \u00a7 21-6-6, supra, did not affirmatively authorize a wife to sue her husband for a tort committed during the marriage. Conversely, there is no statute which affirmatively states that one spouse may not sue the other. We do not decide the issue on the basis of statutory law.\n\u201cAt common law it was well settled that one spouse could not sue the other in tort for personal injuries. . . .\u201d Romero v. Romero, supra; see also Rodgers v. Galindo, 68 N.M. 215, 360 P.2d 400 (1961). Romero, supra, and Rodgers, supra, applied this common law rule in holding that one spouse may not sue the other for personal injuries. The question is whether the common law rule is applicable in this case.\nHusband admitted that he entered a plea of guilty to aggravated battery. Aggravated battery is an intentional act. Section 40A-3-5, N.M.S.A.1953 (Repl.Vol. 6). We limit our consideration of the common law rule to the facts of this case \u2014 that of intentional injury. Romero, supra, and Rodgers, supra, are distinguishable \u2014 they dealt with negligent injuries.\nVarious apologiae have been advanced for the common law rule. We consider them.\n(a) At common law, the husband and wife were considered as one person. Such \u201clegal identity\u201d does not exist in New Mexico. This is shown by \u00a7 21-6-6, supra, by \u00a7 57-2-6, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2) which authorizes spouses to contract with one another in regard to property and by statutory provisions recognizing the separate property rights of the wife. Sections 57-3-4, 57-3-6, 57-3-9, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2). See McDonald v. Senn, 53 N.M. 198, 204 P.2d 990, 10 A.L.R.2d 966 (1949). Spouses are equal partners in New Mexico. Roseberry v. Starkovich, 73 N.M. 211, 387 P.2d 321 (1963).\n(b) The common law rule is necessary to maintain conjugal harmony. Conjugal harmony is no more threatened by tort actions than by property actions, and these are permitted. Trigg v. Trigg, 37 N.M. 296, 22 P.2d 119 (1933); \u00a7 57-2-6, supra.\n(c) Suits between spouses would encourage collusion and fraud. This might be relevant in a claim of negligent tort but we question the relevancy where plaintiff must prove that defendant acted intentionally. Regardless, courts have been able to cope with collusion and fraud claims in other situations, and can cope with them in husband-wife suits.\n(d) The injured spouse has an adequate remedy through the criminal and divorce laws. We fail to understand how. Defendant has been convicted of a crime; the parties are now divorced. The criminal action enforced society\u2019s prohibition against defendant\u2019s conduct; it did not purport to remedy the wrong done to the victim of the crime. Divorce actions, which are statutory, do not purport to provide a remedy for personal injuries. Neither the criminal law nor the divorce action provide a remedy to plaintiff for the results of the knifing; a knifing which violated the wife\u2019s right to personal security. Soto v. Vandeventer, 56 N.M. 483, 245 P.2d 826, 35 A.L.R.2d 1190 (1952).\n(e) To permit suits between spouses would flood the courts with trivial matrimonial disputes. Any validity to this argument would depend on whether the flood actually materializes. The states which permit such suits do not appear to have been inundated.\nThe foregoing reasons for the common law rule are discussed and found to be invalid in Windauer v. O\u2019Connor, 13 Ariz.App. 442, 477 P.2d 561 (1970) [however, see 107 Ariz. 267, 485 P.2d 1157 (1971)]; Self v. Self, 26 Cal.Rptr. 97, 376 P.2d 65 (1962); Freehe v. Freehe, supra.\nIn our opinion, when a man has intentionally laid open his wife\u2019s body with a knife \u201c. . . he is no longer exempt from liability to her on the ground that he vowed ... to \u2018love, cherish, and protect\u2019 her. We have progressed that far in civilization and justice. . . .\u201d Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649 (1941). The common law prohibition cannot be justified in New Mexico because the reasons for the rule are no longer valid.\nDefendant contends the common law rule must be applied because by statute the common law is the rule of practice and decision in New Mexico. Section 21-3-3, N.M.S.A. 1953 (Repl.Vol. 4). The answer is that the common law is not the rule of practice and decision if \u201cinapplicable to conditions in New Mexico.\u201d Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938). If the common law is not \u201capplicable to our condition and circumstances\u201d it is not to be given effect. Browning v. Est. of Browning, 3 N.M. (John) 371, 3 N.M. (Gild) 659, 9 P. 677 (1886); see Martinez v. Cook, 56 N.M. 343, 244 P.2d 134 (1952). The common law rule is not to be applied to bar suits between spouses because liability free intentional injury to one\u2019s spouse does not reflect the circumstances in New Mexico.\nDefendant also asserts that any change in the common law rule is a matter for the legislature. \u201c. . . This argument ignores the fact that the rule is not one made or sanctioned by the legislature, but rather is one that depends for its origins and continued viability upon the common law. . . . \u201d Freehe v. Freehe, supra. The rule was originally formulated by the courts; it is for the courts to change the rule if it is unwise. See Self v. Self, supra. Compare Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732 (1972).\nWe hold that one spouse may sue the other for intentional torts. Windauer v. O\u2019Connor, supra; Self v. Self, supra; Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955). Compare Ennis v. Truhitte, 306 S.W.2d 549 (Mo.1957) with Smith v. Smith, 205 Or. 286, 287 P.2d 572 (1955).\nLost wages and medical expenses.\nA cause of action for personal injury to the wife belongs to the wife and any proceeds recovered are her separate property. In so holding, Soto v. Vandeventer, supra, states:\n\u201cThe cause of action for the damages to the community for medical expenses . as well as loss of earnings, if any, of the wife still belongs to the community, and the husband as its head is the proper party to bring such an action against one who wrongfully injures the wife.\u201d\nThe quoted statement raises the question of whether the defendant in this case is the proper party to sue himself for the medical expenses and loss of earnings for which plaintiff seeks damages. The question is spurious in this case.\nThere is no claim here for community medical expenses. The complaint alleged that the wife incurred the medical expenses. Section 57-3-9, supra, makes the separate property of the wife liable \u201cfor her own debts\u201d contracted after marriage. Until community indebtedness for the medical expenses is established, the statement in Soto v. Vandeventer, supra, is not applicable. However, in that situation, see the solution in Freehe v. Freehe, supra.\nAs to the claimed loss of earnings, the statement in Soto v. Vandeventer, supra, is inapplicable because the parties agree they were separated at the time of the knifing. Section 57-3-7, N.M.S.A. 1953 (Rcpl.Vol. 8, pt. 2) states: \u201cThe earnings . of the wife . . . while she is living separate from her husband, are the separate property of the wife.\u201d Where the parties are not separated at the time of the intentional tort, see Freehe v. Freehe, supra.\nThe summary judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "C. A. Feezer, Dow & Feezer, Carlsbad, for plaintiff-appellant.", "Lon P. Watkins, Carlsbad, for defendant-appellee." ], "corrections": "", "head_matter": "506 P.2d 345\nConsuelo R. FLORES, Plaintiff-Appellant, v. Augustine FLORES, Defendant-Appellee.\nNo. 1022.\nCourt of Appeals of New Mexico.\nJan. 19, 1973.\nCertiorari Denied Feb. 15, 1973.\nC. A. Feezer, Dow & Feezer, Carlsbad, for plaintiff-appellant.\nLon P. Watkins, Carlsbad, for defendant-appellee." }, "file_name": "0601-01", "first_page_order": 757, "last_page_order": 760 }