Apitz v. Dames

Decision Date09 September 1955
Citation287 P.2d 585,205 Or. 242
PartiesAlfred C. APITZ, Executor of the Estate of Esther C. Joss, Deceased, Appellant, v. Robert D. DAMES, Administrator with the Will Annexed of the Estate of Forest G. Joss, Deceased, Respondent.
CourtOregon Supreme Court

Ervin B. Hogan and Philip B. Lowry, Medford, argued the cause for appellant. On the brief were Neff, Frohnmayer & Lowry, Medford.

Robert B. Duncan, Medford, argued the cause for respondent. With him on the brief were McAllister, Duncan & Brophy, Medford.

Before WARNER, C. J., and TOOZE, LUSK, BRAND, LATOURETTE and PERRY, JJ.

BRAND, Justice.

The plaintiff brings this action as executor of the estate of Esther C. Joss, deceased, against the defendant as administrator, with the will annexed, of the estate of Forest G. Joss, deceased, who was the husband of Esther C. Joss. Forest G. Joss wrongfully and intentionally shot and killed his wife Esther Joss, and shortly after her death, killed himself. Upon the basis of these facts the plaintiff, as executor for the benefit of the estate, seeks to recover damages in the sum of $15,000, under the provisions of the Oregon Wrongful Death Statute. Esther C. Joss and her husband both died on the 7th of December 1951. Esther C. Joss left surviving her no dependents. The complaint adequately sets forth the murder of the wife, the suicide of the husband, the damage to the wife's estate, and the absence of any dependents of the deceased wife. To this complaint a demurrer was sustained. The plaintiff refused to plead further and the cause was dismissed. The plaintiff appeals.

The question presented upon this appeal is one of first impression in this state and is of great importance to the profession. We have this day decided the case of Smith v. Smith, Or., 287 P.2d 572, wherein the plaintiff wife sued her husband for damages occasioned by the alleged grossly negligent conduct of her husband in the operation of an automobile, wherein the plaintiff was a guest. By that decision it has been determined that a wife can not sue her husband for negligent or grossly negligent conduct.

In the pending case we must determine whether the same rule of nonliability for tort applies when intentional injury is done by the husband to the person of the wife, amounting in this case to murder, and the action is for the benefit of the estate of the wife. It is the contention of the plaintiff that the common-law doctrine of immunity to liability has no application to actions for personal injury between husband and wife based upon a wilful and malicious tort. The plaintiff alleges that the shooting of the deceased wife was intentional and we shall consider the issue presented as bearing upon liability for intentional harm to the person. As a second string to his bow, the plaintiff contends that the Oregon Wrongful Death Statute creates a new and independent cause of action and is not a survival statute. He therefore argues that an action for wrongful death may be maintained by the executor of the deceased wife against the husband or his representative, irrespective of any immunity which might have existed had the wife survived, since, he contends, the disability of the wife to sue her husband is personal to her and does not extent to the new and independent action created by the Wrongful Death Statute. If we hold that the law of Oregon gives to a wife cause of action against her husband for an intentional tort, or that the Death Statute gives such a right to her representative, a further question is presented by the record under the terms of the Death Statute.

The wife died leaving no dependents, but she did die leaving a husband who murdered her. The qeustion for consideration, therefore, is whether under the terms of the statute the executor of the estate of the deceased wife can bring this action for the benefit of the estate, when the statute names the 'widower' as a beneficiary and provides that the action shall be brought for the benefit of the estate only if there 'is no widow or widower'. The plaintiff contends that where a husband murders his wife, and the wife leaves no surviving dependents, the cause of action for her wrongful death vests immediately upon her death in her personal representative for the benefit of her estate. The defendant, on the contrary, contends that a wrongful death action for the benefit of the estate may be maintained only if there is no widower or dependents who survive the decedent. The question then is, whether the fact that the husband who killed his wife survived her for a few moments or hours renders impossible an action by the executor for the benefit of the estate. The statutes in force at the time of the murder provided, in part, that

'A cause of action arising out of an injury to the person dies with the person of either party, except as provided in sections 8-903 and 8-904 * * *.' O.C.L.A. § 8-901, as amended by Laws of 1945, chapter 41.

'All other causes of action, by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representatives of the latter. Where the cause of action survives as herein provided, the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death against his personal representatives.' O.C.L.A. § 8-902.

'When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former for the benefit of the widow or widower and dependents and in case there is no widow or widower, or surviving dependents, then for the benefit of the estate of the deceased may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed fifteen thousand dollars ($15,000).' O.C.L.A. § 8-903, as amended by Oregon Laws 1949, chapter 518.

'Causes of action arising out of injury to the person or death, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, and the injured person or the personal representatives of one meeting death, as above stated, shall have a cause of action against the personal representatives of the wrongdoer; provided, however, that the injured person shall not recover judgment except upon some competent satisfactory evidence other than the testimony of said injured person; and provided further, that the damages recoverable under the provisions of this act shall not exceed fifteen thousand dollars ($15,000).' O.C.L.A. § 8-904, as amended by Oregon Laws 1949, chapter 519.

It is true, as contended by the plaintiff, that the Death Statute creates a new right and a new liability. It is not a survival statute. Perham v. Portland General Electric Co., 33 Or. 451, 53 P. 14, 24, 40 L.R.A. 799. However, the statutes sets forth a condition precedent to the right to bring the action. It may be brought if the former (the wife) might have maintained an action, had she lived, against the latter (the husband) for an injury done by the same act or omission.

There are plausible and somewhat persuasive cases which would tend to support recovery under the Death Statute even if we were to hold that a living wife can not sue her husband for an intentional injury to the person. In Deposit Guaranty Bank & Trust Co. v. Nelson, 1951, 212 Miss. 335, 54 So.2d 476, the husband shot and killed his wife. The daughter of the deceased brought action against the murderer under the provisions of the Mississippi Death Statute, Code 1942, § 1453, which provided in part as follows:

'Whenever the death of any person shall be caused by any real wrongful * * * act * * * as would, if death had not ensued, have entitled the party injured * * * to maintain an action * * * and such deceased person shall have left a widow or children, or both, or husband * * * the person * * * that would have been liable if death had not ensued * * * shall be liable for damages * * *.'

The defendant contended that the wife, if she had lived, could not have recovered from her husband under Austin v. Austin, 1924, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388 and that therefore, the statutory beneficiary also had the same disability. Answering this contention, the court said [212 Miss. 335, 54 So.2d 477]:

'* * * the disability of the wife to sue is one personal to her, and does not inhere in the tort itself. The assault upon her is wrongful even though she is under a personal disability to sue. The reasons for the rule of immunity between husband and wife do not exist where the husband kills his wife and thus destroys the marital relationship. Second, the statutory beneficiary has a new cause of action, independent of that of the deceased if she had survived, provided the defendant is chargeable with a wrongful act. The suit is derived from the tortious act not from the person of deceased. And third, the stated condition in the statute has no reference to the person entitled to sue but only to the sufficiency of the circumstances attending the injury and the nature of the wrongful act. That is, the defendant must be chargeable with a wrongful act.'

The court also said:

'* * * To extend the tort-feasor's immunity to a new cause of action by the survivors of the deceased wife would apply the immunity rule to a situation never contemplated in its creation and wholly irrelevant to its reasons. The immunity must be confined to cases where its purposes can practically operate. That is impossible here because the tort was of such violence as to end the marital relationship.'

It was held that the plaintiff might maintain action for the death of her mother, although the mother would not have been able to...

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    ...771 (1964); Kowaleski v. Kowaleski, 227 Or. 45, 361 P.2d 64 (1961); Smith v. Smith, 205 Or. 286, 287 P.2d 572 (1955); Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955). As in Winn v. Gilroy, 61 Or.App. 243, 656 P.2d 386, rev. allowed 294 Or. 792, 662 P.2d 727 (1983), we cannot disregard the ......
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