Duplechin v. Toce - 497 So. 2d 763 (La. Ct. App. 1986)

Rule:

The interspousal immunity created by La. Rev. Stat. Ann. § 9:291 does not destroy any cause of action which one spouse might have against the other. The effect of § 9:291 is to bar the right of action which one spouse has against the other for any such cause of action.

Facts:

On August 16, 1980, an altercation occurred in the home of the parties which resulted in the hospitalization of the plaintiff for a period of 25 days. The plaintiff first filed a petition for damages resulting from that incident on August 13, 1981. The defendant filed an Exception of No Right of Action to that suit, citing interspousal immunity as outlined in La. R.S. 9:291. The trial court granted that exception. On December 15, 1981, plaintiff was granted a divorce from the defendant. On January 5, 1982, plaintiff again filed a petition for damages resulting from the altercation of August 16, 1980. Defendant filed Exceptions of Prescription Res Judicata, No Cause, and No Right of Action, each of which was overruled in turn. After a trial on the merits, a judgment was rendered in favor of the plaintiff and against the defendant in the amount of $12,000.00 for past and future medical expenses, and $40,000.00 in general damages, as well as for all costs of court. The defendant’s motion for new trial was denied. The defendant then filed the present appeal, arguing that La. Rev. Stat. Ann. § 9:291 precluded the suit, that the claim was time-barred, and that the trial court erred in its findings.

Issue:

1. Did La. Rev. Stat. Ann. § 9:291 preclude the plaintiff’s suit? 
2. Under the circumstances, did the plaintiff wife have a cause and right of action against defendant husband? 

Answer:

1) No. 2) Yes.

Conclusion:

In affirming, the court ruled that the interspousal immunity created by § 9:291 did not destroy any cause of action which one spouse had against the other and that it was the time of the judicial proceedings which controlled the application of the doctrine of interspousal immunity rather than the time of the occurrence of the tort. The court held that, because prescription was suspended as between spouses during marriage, the former wife had both a cause and a right of action against her former husband. The court reviewed the record and found that the evidence supported the trial court's findings that the wife did not provoke the battery and that the damages assessed were reasonable.