McMillan v. McMillan

• Citation: 219 Va. 1127,253 S.E.2d 662
• Decision Date: 20 April 1979
• Docket Number: No. 771349,771349
• Parties: Glenna Jennings McMILLAN v. David Allen McMILLAN. Record
• Court: Supreme Court of Virginia

Page 662

253 S.E.2d 662

219 Va. 1127

Glenna Jennings McMILLAN v. David Allen McMILLAN.

Record No. 771349.

Supreme Court of Virginia.

April 20, 1979.

Carl E. McAfee, Norton (Cline, McAfee, Adkins & Gillenwater, Norton, on brief), for appellant.

Charles B. Flannagan, II, Bristol (Woodward, Miles & Flannagan, P. C., Bristol, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In resolving conflicts of laws, the settled rule in Virginia is that the substantive rights of the parties in a multistate tort action are governed by the law of the place of the wrong. Maryland v. Coard, 175 Va. 571, 580-81, 9 S.E.2d 454, 458 (1940). Today in an intra-family suit, we are invited to reject that lex loci delicti principle and to follow the so-called "modern trend" by applying the law of the domicile of the parties. We decline the invitation and reaffirm "the place of the wrong" rule.

Glenna Jennings McMillan was injured on December 26, 1975, while riding in an automobile which collided with a bridge in Hawkins County, Tennessee. The vehicle was operated by her husband, defendant David Allen McMillan. Subsequently, plaintiff instituted this suit in the court below charging that defendant negligently caused the accident and her injuries. The parties were domiciled in Virginia both at the time of the accident and when this suit was filed.

In Tennessee, no right of action arises and no suit may be maintained for a tort committed during coverture by one spouse against the other. Wooley v. Parker, 222 Tenn. 104, 107, 432 S.W.2d 882, 883 (1968). See Childress v. Childress, 569 S.W.2d 816, 817 (Tenn.1978). In Virginia, this common-law rule of interspousal immunity as it affects actions for personal injuries arising from motor vehicle accidents was abolished in Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971), and such actions may now be maintained in this state.

In the present case, the trial court, in an August 1977 order from which plaintiff appeals, sustained the husband's motion to dismiss. The court below, ruling that Tennessee law applied, decided that it was bound to follow the established Virginia rule that the law of the situs of the tort governs the substantive rights of the parties.

The plaintiff contends on appeal that Virginia should abandon the orthodox place-of-the-wrong rule in a case such as this and embrace a "modern" rule, which has been followed in a number of states and in recent years has been adopted by the American Law Institute. See Restatement (Second) of Conflicts of Laws §§ 145 & 169 (1971) (hereinafter cited as Restatement ); Annot., 29 A.L.R.3d 603, 622-52 (1970); Annot., 96 A.L.R.2d 973, 987-96 (1964). The advocates of this "modern" approach express dissatisfaction with the mechanical application of the place-of-the-wrong rule and impose a duty on the forum court to make an analytical examination of the facts of each case to determine what law should govern the parties' substantive rights. 29 A.L.R.3d at 622-23. While no definitive statement of this "modern" view can be made because of the many variants resulting from this case-by-case approach, the present Restatement rule is illustrative of the concept. This "center of gravity" or "grouping of contacts" theory provides:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6 (setting forth certain basic choice-of-law maxims).

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement, supra, § 145.

Urging us to adopt this concept, plaintiff argues that disabilities to sue and immunities from suit stemming from the family relationship are more appropriately determined by reference to the law of the state of the family domicile. She contends that "Virginia is clearly the state with the prevailing interest in this action, and therefore should apply its own law with respect to intra-family immunity." We disagree.

We recognize that there has been an increase in the number of jurisdictions which have adopted the contended-for "most significant relationship" test in personal injury actions. We also note that in the cases of this type involving intra-family disputes, the courts employing such theory usually apply the substantive tort law of the state of the domicile. See Restatement, supra, § 169. But after consideration of that concept as compared to our place-of-the-wrong rule, we have concluded to adhere to this court's former position on the question.

Even though the ...