O.C.G.A. § 19-3-8 (2019)

Annotations

Law reviews. For article, “Defending the Lawsuit: A

First-Round Checklist,” see 22 Ga. St. B.J. 24 (1985). For note, “Piercing the Marital Veil: Interspousal Tort Immunity After Harris v. Harris,” see 36 Mercer L. Rev. 1013 (1985). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article, “Interspousal Tort Immunity in America,” see 23 Ga. L. Rev. 359 (1989).

For annual survey article on tort law, see 50 Mercer L. Rev. 335 (1998). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For note, “Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers,” see 51 Ga. L. Rev. 879 (2017).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION General Consideration Section does not change commonlaw doctrine of interspousal immunity. - O.C.G.A. § 19-3-8 does not purport to change common law regarding personal torts committed by one spouse against the other, and the law, with respect to those matters, is still the same as it was under common law, that is, that marriage extinguishes antenuptial rights of action between husband and wife, and after marriage the wife cannot maintain an action against her husband based on tortious injury to her person, though committed prior to coverture. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896, 1981 Ga. LEXIS 1003 (1981). Common-law interspousal immunity doctrine applies to husbands as well as wives. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896, 1981 Ga. LEXIS 1003 (1981). Scope of doctrine. - Doctrine of interspousal tort immunity bars actions between spouses in respect to personal torts committed by one spouse against the other, except when the traditional policy reasons for applying interspousal tort immunity are absent, i.e., when there is no marital harmony to be preserved and when there exists no possibility of collusion between the spouses. Shoemake v. Shoemake, 200 Ga. App. 182, 407 S.E.2d 134, 1991 Ga. App. LEXIS 772 (1991). Application of interspousal immunity doctrine to wrongful death ac-

tions violates constitutional guarantee of equal protection because the doctrine arbitrarily distinguishes between classes of wrongful death claimants. Jones v. Jones, 259 Ga. 49, 376 S.E.2d 674, 1989 Ga. LEXIS 95 (1989). Doctrine of interspousal immunity is not unconstitutional as a matter of due process or equal protection. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896, 1981 Ga. LEXIS 1003 (1981). Common-law interspousal immunity doctrine bears reasonable relationship to promotion of domestic tranquility interest sought to be furthered by it. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896, 1981 Ga. LEXIS 1003 (1981). For discussion of reasons for preserving doctrine of interspousal immunity. - See Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896, 1981 Ga. LEXIS 1003 (1981). Doctrine of interspousal tort immunity is inapplicable when there is, realistically speaking, no marital harmony to be protected by application of the rule nor any hint of collusion between the husband and wife or of intent to defraud an insurance company. Smith v. Rowell, 176 Ga. App. 100, 335 S.E.2d 461, 1985 Ga. App. LEXIS 2275 (1985). When husband and wife had been separated for ten years, despite spo-

radic reconciliation attempts, and during which time the husband lived with another woman, the doctrine of interspousal tort immunity did not apply since there was no “marital harmony” to be protected. Harris v. Harris, 252 Ga. 387, 313 S.E.2d 88, 1984 Ga. LEXIS 680 (1984). Suit against husband’s estate by wife’s parents. - Interspousal immunity doctrine was not a bar to a wrongful death action brought against the estate of a deceased husband by the parents of the wife who died with her husband in the crash of a plane piloted by the husband. Trust Co. Bank v. Thornton, 186 Ga. App. 706, 368 S.E.2d 158, 1988 Ga. App. LEXIS 441 (1988). Requirement to apportion damages did not violate interspousal tort immunity doctrine. - Application of the apportionment of damages pursuant to O.C.G.A. § 51-12-33 did not violate the interspousal tort immunity doctrine, O.C.G.A. § 19-3-8, because the trial court’s holding that the jury should have been instructed to apportion the award of

damages to a wife according to the jury’s determination of the percentage of fault of her husband and a driver, if any, in no way requires the wife to file suit against her husband, but instead, precluded the wife from recovering from the driver that portion of her damages, if any, that a trier of fact concluded resulted from the negligence of her husband. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570, 2011 Ga. App. LEXIS 191 (2011). Application of doctrine. - Trial court erred in denying a husband’s motion to dismiss, which was treated as a motion for summary judgment, and in failing to apply the interspousal tort immunity doctrine, as codified in O.C.G.A. § 19-3-8, to a wife’s claim for damages for a motorcycle accident, even though the wife’s complaint against the husband contained a count for dissolution of the marriage. Gates v. Gates, 277 Ga. 175, 587 S.E.2d 32, 2003 Ga. LEXIS 848 (2003), overruled in part, Gilliam v. State, 312 Ga. 60, 860 S.E.2d 543, 2021 Ga. LEXIS 467 (2021).

RESEARCH REFERENCES Am. Jur. 2d. 41 Am. Jur. 2d, Husband and Wife, § 236 et seq. C.J.S. 41 C.J.S., Husband and Wife, §§ 204, 205. ALR. Right of wife to exclude husband from possession, use, or enjoyment of family residence or homestead owned by her, 21 A.L.R. 745. Wife’s right to reimbursement by husband for expenditures for support and maintenance of herself or family made while they were living together in the marriage relation, 101 A.L.R. 442. Presumption of ownership of personal property as between husband and wife, 111 A.L.R. 1374. Liability of married woman or her estate for fees of real estate broker, 117 A.L.R. 752. Renewal by one spouse without the other’s participation, of lien on homestead, 143 A.L.R. 1369.

Power of either spouse, without consent of other, to make gift of community property or funds to third party, 17 A.L.R.2d 1118. Woman’s right to have abortion without consent of, or against objections of, child’s father, 62 A.L.R.3d 1097. Validity of verdict or verdicts by same jury in personal injury action awarding damages to injured spouse but denying recovery to other spouse seeking collateral damages, or vice versa, 66 A.L.R.3d 472. Right of married woman to use maiden surname, 67 A.L.R.3d 1266. Domicile for state tax purposes of wife living apart from husband, 82 A.L.R.3d 1274. Right of liability insurer or uninsured motorist insurer to invoke defense based on insured’s tort immunity arising out of marital or other close family relationship to injured party, 36 A.L.R.4th 747. Joinder of tort actions between spouses with proceeding for dissolution of marriage, 4 A.L.R.5th 972.