Coffindaffer v. Coffindaffer

Decision Date16 May 1978
Docket NumberNo. 13787,13787
Citation244 S.E.2d 338,161 W.Va. 557
CourtWest Virginia Supreme Court

Syllabus by the Court

Under the provisions of W.Va.Code, 48-3-19, the defense of interspousal immunity is not available in suits between spouses in this State.

Preiser & Wilson, Monty L. Preiser, Charleston, for appellant.

Marvin W. Masters, Charleston, for appellee.

MILLER, Justice:

We are asked in this appeal to consider again the question of whether one spouse may maintain against the other an action for recovery of damages for personal injuries. Stated more simply, the question is whether the doctrine of interspousal immunity should be abolished.

On February 11, 1976, Mrs. Helen Coffindaffer, appellant and plaintiff below, was operating her automobile on a public highway when it was struck by an automobile driven by her husband, Bernard Coffindaffer. She allegedly sustained personal injuries as a result of this collision. Immediately following the collision, Mr. Coffindaffer left his car and allegedly assaulted Mrs. Coffindaffer, causing her further injuries.

Prior to this incident the parties had separated and were awaiting the outcome of a divorce suit. Mrs. Coffindaffer brought an action against her husband in the Circuit Court of Kanawha County on two theories. The first count encompassed damages for personal injuries arising out of the negligence of Mr. Coffindaffer in the operation of his automobile. The second count sought to recover compensatory and punitive damages for the intentional assault.

By an order dated November 8, 1976, the Circuit Court dismissed the complaint on the basis that the doctrine of interspousal immunity, pleaded by the husband, barred the action.

The origins of the doctrine of interspousal immunity are rooted in the common law, where the legal fiction of the unity of the persons, arising from the act of marriage, brought the wife's property under the use and control of her husband. Upon marriage, a woman lost her capacity to sue and her ability to contract. Her earnings became the property of her husband, since he had assumed the duty of supporting her. If she wished to enforce a substantive right against third parties, it had to be done in the name of her husband. 1

Some relief from the harshness of a woman's common law status was available in the equity courts, at least to the extent of protecting her separate property against predacious acts of her husband. From equity's limited protections, there was a general movement to statutory modification of the common law culminating in the Married Women's Property Acts of the Nineteenth Century. 2

Section 48 of the Report of the Committee on the Legislative Department at the West Virginia Constitutional Convention, 1861-1863, contained the following provision:

"The legislature shall pass laws to protect the property of the wife against the acts and debts of the husband."

This section was deleted during the convention proceedings, 3 but the 1872 Construction contains a similar provision found in Article VI, § 49:

"The Legislature shall pass such laws as may be necessary to protect the property of married women from the debts, liabilities and control of their husbands."

The Legislature, in advance of the 1872 constitutional mandate, enacted Chapter 66 of the Code of 1868, which contained some thirteen sections relating to the rights of married women.

Through the years the Legislature has gradually liberalized the powers granted to married woman. It would serve no useful purpose to trace all of the legislative changes. However, the development of the section permitting married women to bring suits has some immediate bearing on the issues in this case. Under Chapter 66, Section 12 of the Code of 1868, the following rights were recognized:

"A married woman may sue and be sued without joining her husband in the following cases.

"I. Where the action concerns her separate property.

"II. Where the action is between herself and husband.

"III. Where she is living separate and apart from her husband.

"And in no case need she prosecute or defend by guardian or next friend."

Judge Brannon, speaking for the Court in Bennett v. Bennett, 37 W.Va. 396 16 S.E. 638 (1892), was of the view that under the foregoing section, the wife had fairly broad rights to recover against her husband:

"Our statute, (chapter 66 of the Code,) allows a married woman to hold and enjoy property as her separate estate free from the power of her husband, and from that fact it might be thought she could sue him to effectuate and vindicate her separate property right, sue him as well as any one else; and especially so as section 15 gives her right to sue alone 'where the action or suit' concerns her separate property, or is between her and her husband, using the words 'action or suit,' referring both to actions at law and suits in equity, seeming to be an unlimited grant of capacity to sue her husband.

"In several states where similar statutes prevail she is allowed to contract with her husband and sue him. (Citations omitted)" (37 W.Va. at 398, 16 S.E. at 639)

This Court in Hamilton v. Hamilton, 95 W.Va. 387, 121 S.E. 290 (1924), in discussing the 1893 changes to the Married Women's Act, commented on the inclusion of a new Section 15 of Chapter 3 of the 1893 Code, which provided:

"A married woman may sue or be sued in any court of law or chancery in this State, which may have jurisdiction of the subject-matter, the same in all cases as if she were a feme sole, and any judgment rendered against her in any such suit shall be a lien against the corpus of her separate real estate. And an execution may issue thereon and be collected against the separate personal property of a married woman as though she were a feme sole."

Hamilton dealt with a wife's right to sue her husband on his promissory note. The Court concluded that under Section 15, she had such a right:

"She may therefore sue or be sued in any court of law or chancery in this State, which may have jurisdiction of the subject-matter, the same in all cases as if she were a feme sole. So says the statute." (Emphasis in original) (95 W.Va. at 390, 121 S.E. at 291)

In the 1931 revision of the West Virginia Code, the language of Section 15 of Chapter 3 of the 1893 Code was modified and became W.Va.Code, 48-3-19 (1931). 4 The reviser's comment stated:

"(This section) is intended to cover all instances where a married woman may sue or be sued, giving her the same rights and responsibilities as if she were a single woman ;" (Emphasis added)

The plain meaning of W.Va.Code, 48-3-19, did not escape comment in this State. See Note, 37 W.Va.L.Rev. 92 (1931). Yet, when this Court had before it the first case of whether a spouse could sue another spouse in tort in Poling v. Poling, 116 W.Va. 187, 179 S.E. 604 (1935), it refused to give any effect to the statutory language. The Court made no attempt to trace the history of W.Va.Code, 48-3-19, or to discuss the implications of Bennett and Hamilton that a married woman had as broad a right to sue as a single woman. Instead, Poling fell back on the statutory construction rule that a statute in derogation of the common law is to be strictly construed. A proposition that is true, except where the plain meaning of the words of the statute indicate the Legislature is changing the common law. Fruehauf Corporation v. Huntington Moving & Storage Co., W.Va., 217 S.E.2d 907 (1975).

In Poling, the Court placed considerable reliance on the earlier United States Supreme Court case of Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180 (1910), where, against a vigorous dissent by Justices Holmes, Hughes and Harlan, it was held that the Married Women's Act of the District of Columbia did not authorize tort actions between spouses. The only other case cited in Poling as authority for the interspousal immunity doctrine was Strom v. Strom, 98 Minn. 427, 107 N.W. 1047 (1906). However, this decision was overruled in the later case of Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969), where the court stated in its single syllabus:

"The absolute defense of interspousal immunity in actions for tort is abrogated prospectively, as to all causes of action arising after this date, and is abrogated as to the instant cases."

Since Poling, this Court has adhered to the rule of interspousal immunity without any attempt to analyze the correctness of its statutory interpretation. The latest direct expression of the rule is found in Campbell v. Campbell, 145 W.Va. 245, 114 S.E.2d 406 (1960), but again the language of W.Va.Code, 48-3-19, was not examined. 5

Balanced against the restrictive interpretation by Poling and its progeny is a more recent trend to abolish common law immunities. Charitable immunity of hospitals was struck down in Adkins v. St. Francis Hospital, 149 W.Va. 705, 143 S.E.2d 154 (1965). This Court limited family immunity to parent-child and husband-wife relationships in Freeland v. Freeland, 152 W.Va. 332, 162 S.E.2d 922 (1968). We held that there is no common law governmental immunity for municipal corporations in Higginbotham v. City of Charleston, W.Va., 204 S.E.2d 1 (1974), and Long v. City of Weirton, W.Va., 214 S.E.2d 832 (1975). The doctrine of parental immunity was abrogated so as to permit an unemancipated minor child to sue for injuries received in a motor vehicle accident in Lee v. Comer, W.Va., 224 S.E.2d 721 (1976).

Significantly, in each of these cases the Court acted by unanimous opinion. Moreover, in all the cases except Freeland, the Court was required to overrule its prior decisions. Finally, none of the decisions were based upon legislative changes to the common law.

When we look to other jurisdictions, we observe a decided trend to abolish or restrict the doctrine of interspousal immunity. Bennett v. Bennett, 224 Ala. 335, 140 So. 378 (1932); Cramer v. Cramer, 379 P.2d 95 (Alaska ...

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