Counts v. Counts

• Decision Date: 06 June 1980
• Docket Number: No. 780734,780734
• Citation: 221 Va. 151,266 S.E.2d 895
• Parties: Robert C. COUNTS v. Lillie D. COUNTS. Record
• Court: Virginia Supreme Court

Page 895

266 S.E.2d 895

221 Va. 151

Robert C. COUNTS v. Lillie D. COUNTS.

Record No. 780734.

Supreme Court of Virginia.

June 6, 1980.

John J. Curry, Jr., Christiansburg, for appellant.

Henry A. Whitehurst, Christiansburg, for appellee.

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

COMPTON, Justice.

In this appeal of a tort action, we review the trial court's action in sustaining a plea of interspousal immunity. Here, the husband sued his former wife for compensatory and punitive damages, alleging severe injuries intentionally inflicted upon him by his wife's co-conspirator in an abortive murder-for-hire scheme. We are urged to carve another exception to the foregoing doctrine beyond those fashioned in Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971), and Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975). ¹

In March of 1977, appellant Robert C. Counts, the plaintiff below, sued Miles Randolph Turner and appellee Lillie Drew Counts, alleging that Turner maliciously injured the plaintiff in January of 1975 pursuant to an agreement between Turner and Mrs. Counts for the murder of Mr. Counts. The defendants pleaded the two-year statute of limitations and Mrs. Counts filed a demurrer asserting the action was barred by the doctrine of interspousal immunity. The trial court sustained Turner's plea of the statute of limitations as well as Mrs. Counts' demurrer and dismissed the action. Plaintiff sought an appeal from the March 1978 order of dismissal as to Mrs. Counts only, and we granted such request.

Because the suit against Mrs. Counts was decided on demurrer, our recitation of the facts must be based on the allegations of the motion for judgment. Pursuant to the settled rule, we will accept as true all material facts which have been properly pleaded.

During the latter part of 1974, while the Countses were married and cohabiting as husband and wife, she solicited Turner to kill Counts, promising to pay Turner $5,000 for the deed. On January 30, 1975, Turner went to the Countses' home in Pulaski County to carry out the conspiracy and attacked plaintiff, intending to kill him. The effort failed, but plaintiff sustained severe mental and physical injuries during the assault. Because Mrs. Counts concealed her part in the conspiracy from her husband, the couple continued to live together until some time after plaintiff, in March of 1975, discovered his wife's role in the plot.

Subsequently, Turner was convicted of maliciously wounding Counts. Nine years of a ten-year penitentiary term were suspended upon condition that Turner make "restitution" to plaintiff. Charged with conspiring to maliciously wound her husband, the wife was also convicted. She was sentenced to jail and fined. In February of 1977, the Countses' marriage was dissolved by divorce ² and this action ensued two weeks later.

In sustaining the ex-wife's plea of immunity, the trial judge examined Korman and wrote that "the doctrine of interspousal immunity still is the law of Virginia" except in "automobile cases and under the actual facts of Korman." He also was of opinion that "(i)f another exception is to be made to the rule, that must be done either by the Supreme Court of Virginia or by the General Assembly."

On appeal, the question is whether the wife is immune from liability in tort for personal injuries intentionally inflicted upon the husband at her direction during the marriage, when the parties are divorced from the bond of matrimony at the time the action is instituted.

Plaintiff urges us to succumb to the current trend and abolish the doctrine of interspousal immunity in its entirety or, in the alternative, to substantially modify the doctrine again to embrace the facts of this case. He points out we have already recognized that a former basis for the doctrine, i. e., the fiction that husband and wife are of "one flesh," is "outmoded," citing Korman v. Carpenter, 216 Va. at 90, 216 S.E.2d at 197. He also notes we said in Korman that another justification for the doctrine, that is, preservation of the marriage, becomes irrelevant when one spouse murders the other thus leaving no "marriage to be saved" and no "union to be preserved." 216 Va. at 90, 216 S.E.2d at 198. Accordingly, the argument continues, when, as here, the action is brought after the parties are finally divorced, there likewise is no marriage to be preserved, and the common-law doctrine of interspousal immunity, as it has evolved and now exists in Virginia in 1980, should not be applied to bar this suit for a purely personal and malicious tort committed by one spouse against the other during coverture. We reject the plaintiff's invitation to abolish the doctrine in toto and we refuse to chisel another exception into the rule to cover the facts of this case.

In Korman, we reviewed the history and development of interspousal immunity in Virginia, as articulated in Keister v. Keister, 123 Va. 157, 96 S.E. 315 (1918), through its abrogation in motor vehicle accident litigation in Surratt. ³ See 216 Va. at 87-90, 216 S.E.2d at 196-97. We were concerned in Korman, as here, with a policy and rule of law designed to protect and encourage the preservation of marriages. There we noted that "(i)nterspousal immunity is only a part of a whole system of laws and policies which recognizes the mutual obligations arising from a marriage and which encourages both marital and family harmony." 216 Va. at 90, 216 S.E.2d at 197.

Nevertheless, in Korman we forged an exception to the doctrine and permitted the suit to proceed. There we pointed out that in the automobile context of Surratt, the court considered "the high incidence of liability insurance covering Virginia-based motor vehicles, together with the mandatory uninsured motorist endorsements to insurance policies" and concluded that the doctrine "could no longer be supported as promotive of the peace and tranquility of the home." 216 Va. at 88, 216 S.E.2d at 196. We then reasoned that

in light of Surratt it would be an anomaly for us to apply interspousal immunity in this case. We would be invoking the doctrine ostensibly to preserve a family relationship which had been voluntarily terminated by the parties; to promote domestic harmony that had disappeared from the marriage; and to save a marriage which had been terminated by the murder of the wife by the husband. The rule of stare decisis does not require such specious reasoning.

216 Va. at 91, 216 S.E.2d at 198. We observed that if the Surratt majority "acted properly in abrogating interspousal immunity" in motor vehicle litigation, its abrogation under the facts of Korman was "required." Id. We went on to hold "that an action for wrongful death may be maintained, predicated upon injuries to one spouse during marriage arising out of a wrongful act by the other spouse, when such an act results in the termination of the marriage by death, and when the deceased spouse is survived by no living child or grandchild." 216 Va. at 91-92, 216 S.E.2d at 198. We concluded by emphasizing we were deciding only "the narrow question" presented by Korman's facts and we restricted the precedential scope of the holding, stating we were "not persuaded that permitting a living spouse to sue for torts committed by one on the other, except in automobile accident litigation, would do otherwise than contribute to the destruction of their marriage." 216 Va. at 92, 216 S.E.2d at 198. We are still not persuaded.

A superficial analysis of Korman and the case at bar would reveal no logical justification for abrogating the immunity in the former and applying it in the latter. It would appear on the surface that the policy concern of preserving the marriage would be as irrelevant when the marriage has been ended by divorce as when the marriage has been terminated by death.

But a close examination of the effect on the marriage relationship of permitting a living spouse to sue after divorce for even intentional torts committed during coverture by one on the other dictates a reaffirmance of...