Adams v. Grogg

• Decision Date: 03 April 1969
• Docket Number: No. CC877,CC877
• Citation: 166 S.E.2d 755,153 W.Va. 55
• Court: West Virginia Supreme Court
• Parties: Ida V. ADAMS, Administratrix of Estate of Pauline Adams Grogg, Deceased v. Freeman Nelson GROGG.

Page 755

166 S.E.2d 755

153 W.Va. 55

Ida V. ADAMS, Administratrix of Estate of Pauline Adams Grogg, Deceased v. Freeman Nelson GROGG.

No. CC877.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1969.

Decided April 3, 1969.

Syllabus by the Court

By reason of the provisions of Code, 1931, 55--7--5, an action for wrongful death cannot be maintained by the personal representative of a deceased wife against the surviving husband who, by wrongful act, neglect or default, allegedly caused such death and this prohibition applies even though the deceased wife left surviving her a minor daughter who is not related to said surviving husband.

Clarence E. Martin, Jr., Martinsburg, for plaintiff.

Rodgers & Kiser, D. H. Rodgers, Jr., Martinsburg, for defendant.

CAPLAN, Judge:

This case is before the Court on certification from the Circuit Court of Berkeley County. Ida V. Adams, Administratrix of the Estate of Pauline Adams Grogg, Deceased, instituted an action in the aforesaid court against Freeman Nelson Grogg for the wrongful death of the deceased.

According to a stipulation entered into between the parties, it appears that on October 2, 1965 Pauline Adams Grogg and Freeman Nelson Grogg were duly and legally married; that on the same day and subsequent to the marriage the defendant, Freeman Nelson Grogg, was driving his wife's automobile; that his wife, driving his wife's passenger in said automobile; and that as the defendant was driving in an easterly direction on State Route No. 51 an accident occurred which resulted in the death of Pauline Adams Grogg. It was further stipulated that at the time of her death Pauline had a daughter, Rhonda Lynn Adams, who was in no way related to the defendant.

It is alleged in the complaint that the death of the deceased resulted from the defendant's negligent, reckless and willful operation of the vehicle in which the deceased was a passenger; that the deceased was the sole support of her daughter, Rhonda, then age two; and that she, the deceased, was employed, earning a living and in excellent health at the time of her death.

Instituting this action under the provisions of Code, 1931, 55--7--5 and 55--7--6, as amended, the plaintiff seeks recovery for money expended for funeral expenses, plus $10,000.00 damages and in addition thereto, further damages in the amount of $100,000.00, constituting financial and pecuniary losses sustained by Rhonda Lynn Adams.

The defendant filed a motion to dismiss this action, asserting that the complaint failed to state a claim against the defendant upon which relief could be granted for the reason that 'this is an action between husband and wife and against public policy.' The trial court dismissed the complaint but upon joint motion of the parties certified the following question to this Court:

'Can the personal representative of a deceased wife maintain an action, under Code 55--7--5, against her surviving husband for damages arising out of the death of the wife, resulting from a wrongful act on the part of the husband, where there is a beneficiary of the deceased wife who is not related to the defendant husband.'

The question posed by the court below is answered by our statutes pertaining to recovery for death by wrongful act. Code, 1931, 55--7--5, provides, in part, 'Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, * * * the person who * * * would have been liable if death had not ensued, shall be liable to an action for damages * * *.'

'At the common law, there was no right of action for damages for injury occasioned by the death of a person by a wrongful act.' Such was the language in Swope v. Keystone Coal and Coke Co., 78 W.Va. 517, 89 S.E. 284, L.R.A.1917A, 1128, reflecting, without question, the principle that a right of action did not survive one's death at common law, even though such death were caused by a wrongful or tortious act. See Jackson v. Cockill, 149 W.Va. 78, 138 S.E.2d 710; Dunsmore v. Hartman, 140 W.Va. 357, 84 S.E.2d 137; 25 A C.J.S. Death § 13, the heading of which reads: 'At common law there is no cause of action for the recovery of damages for the wrongful death of a human being.'

There being no common law right of action for death by a wrongful act, such action, if maintainable, exists only by the grace of the above quoted stat...