Furey v. Furey

• Decision Date: 16 June 1952
• Docket Number: No. 3942,3942
• Citation: 193 Va. 727,71 S.E.2d 191
• Parties: HAZEL REPPEN FUREY v. RICHARD T. FUREY. Record
• Court: Virginia Supreme Court

Page 191

71 S.E.2d 191

193 Va. 727

HAZEL REPPEN FUREY v. RICHARD T. FUREY.

Record No. 3942.

Supreme Court of Appeals of Virginia

June 16, 1952.

Joseph P. Smyth, for the plaintiff in error.

Frank L. Ball, for the defendant in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The sole question for decision in this case is whether a wife can maintain a suit against her husband for a tort committed by him against her before their marriage.

Plaintiff, the wife, brought this action to recover damages from the defendant for injuries which she alleged were caused by his gross negligence in driving an automobile in which she was riding as a passenger. Defendant filed a plea in bar denying plaintiff's right to maintain the action because after the accident she and defendant had married and were husband and wife at the time of bringing suit and at the time of hearing. The facts alleged in the plea being admitted, the court sustained the plea and dismissed the action. The error assigned is to that ruling.

Plaintiff bases her right to maintain the suit on section 55-36 of the Code, 1950, which provides in pertinent part that: ' -- A married woman may contract and be contracted with and sue and be sued in the same manner and with the same consequences as if she were unmarried, * * *.'

In Keister v. Keister (1918), 123 Va. 157, 96 S.E. 315, 1 A.L.R. 439, the quoted part of this statute, which in identical words was then part of section 2286-a of Pollard's Code of Virginia 1904, was held to refer only to remedies and not to confer 'the substantive right' on a married woman to sue her husband for an assault committed by him on her during the coverture. It was there said:

'The substantive civil right in question is a legal existence -- a legal personality -- of a married woman, separate and apart from the legal personality of her husband, during coverture. Such a right a married woman had not and has not at common law.' 123 Va. at p. 161, 96 S.E. at p. 316.

It was further said that the question was not whether the statute had given married women the same remedies they would have if unmarried, but whether it 'has conferred on married women the particular substantive right aforesaid.' 123 Va. at p. 161, 96 S.E. at p. 316. The statute, it was observed, being in derogation of the common law, was to be strictly construed and read as if the common law remained unchanged unless the purpose to change it appeared expressly or by necessary implication.

It was concluded that, 'If the legislature had intended to confer upon married women the substantive civil right of a legal existence and legal personality separate and apart from that of the husband, during coverture, nothing was easier than for it to have said so in language of no uncertain meaning. If it intended not to confer such a substantive right, but merely to enlarge the remedies of married women with respect to other substantive rights of theirs existing at common law and conferred by the first portion of this very statute, the language of the statute was appropriate to accomplish the latter purpose and its object is fully accomplished when the statute is given that meaning. ' It was not necessary, the court added, that any further meaning be given to it and no further meaning could be given to it. 123 Va. at pp. 163-4, 96 S.E. at p. 317.

The plaintiff in the present suit argues that that construction of the statute applies only to torts committed during coverture, and that there is language in the opinion which gives the wife the right to sue her husband for an antenuptial tort. The sentence relied on is in these words:

'That is to say, the statute under consideration merely provides that at all times during the coverture a married woman is thereby given a right to sue, provided she had, at the time it is alleged that the cause of action arose, the substantive civil right which was necessary, as aforesaid, to give rise to such cause of action.' 123 Va. at p. 164, 96 S.E. at p. 317.

Taken out of its context that sentence could have that meaning; but when read in its context, it is clear that such meaning was not intended. The clause, 'That is to say,' refers to the sentence immediately preceding, holding that the effect of the statute is merely to provide that all disabilities of married women to sue are removed as of the time the suit is instituted upon any cause of action 'then existing.' But no cause of action could be 'then existing,' as the quoted sentence explains, without the 'substantive civil right' necessary to give rise to it; i.e., a legal personality of the wife separate and apart from the legal personality of her husband, which the common law does not give and which the statute has not conferred. This is made abundantly clear by the sentence following the quoted sentence: 'The statute, therefore, is entirely consistent with the common law, which does not confer the substantive right aforesaid on married women, and hence does not change the common law in that regard by implication.' 123 Va. at p. 164, 96 S.E. at pp. 317-8.

It is the rule of the common law that all liability for antenuptial torts is extinguished by marriage. 27 Am. Jur., Husband and Wife, § 589 at p. 192; 41 C.J.S., Husband and Wife, § 396 at p. 880; Anno., 89 A.L.R. at p. 122.

If nothing can be found in our statute to change the common law rule that a wife cannot sue a husband for a tort committed during coverture, as held in the Keister Case, a search of the statute in the light of the principles followed in that case likewise reveals no purpose to change the common law so as to permit a suit by the wife against the husband for a tort committed before marriage. The reason for the conclusion in the second instance is no less compelling than in the first. We have found no case allowing a suit for antenuptial torts in the jurisdictions which have held that their married women's acts have not changed the common law rule against suits for torts committed during coverture. All that have dealt with the question, so far as our search reveals, have held against such right.

Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.ed. 1180, 30 L.R.A. (N.S.) 1153, quoted and relied on in the Keister Case, construed a statute of the District of Columbia -- the same in all essential particulars as the Virginia statute, said the Keister opinion, -- and held that it 'was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which, at common law, must be brought in the joint names of herself and husband.' 31 S.Ct. at p. 112.

Twenty years after the decision in the Thompson Case the Court of Appeals of the District of Columbia held, in Spector v. Weisman, 40 F. (2d) 792, under the statute construed in the Thompson Case, that a wife cannot maintain an action against her husband for damages for personal injuries sustained in an automobile accident caused by the negligence of the husband before they were married. In that case the suit was begun but not brought to judgment before the marriage. It was held that the District of Columbia statute had not changed the common law to permit such an action, whether the injuries had been inflicted before or after the marriage.

In Staats v. Co-op. Transit Co., 125 W.Va. 473, 24 S.E. (2d) 916, the plaintiff was injured in a collision while a guest passenger in an automobile driven by Staats. She brought suit against Staats and another, but before trial she married Staats. It was held that she could not continue to maintain the action against her husband. The court said that the rule established in Poling v. Poling, 116 W.Va. 187, 179 S.E. 604, holding that the West Virginia married women's statute, substantially the same as the quoted Virginia statute, did not enable a husband or wife to maintain an action against the other for a tort committed during coverture, was based upon 'abundance of authority, correct reasoning and sound public policy;' and that the same considerations compelled a holding that the plaintiff could not, after becoming the wife of defendant, maintain her action against him. 24 S.E. (2d) at p. 920.

The same conclusion was reached in Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320; Patenaude v. Patenaude, 195 Minn. 523, 263 N.W. 546; Coster v. Coster, 289 N.Y. 438, 46 N.E. (2d) 509, (applying Massachusetts law); Carmichael v. Carmichael, 53 Ga.App. 663, 187 S.E. 116; Scales v. Scales, 168 Miss. 439, 151 So. 551; Webster v. Snyder, 103 Fla. 1131, 138 So. 755; Raines v. Mercer, 165 Tenn. (1 Beeler) 415, 55 S.W. (2d) 263. ¹

The Keister Case, supra, 123 Va. at p. 168, 96 S.E. at p. 319, cited the cases from other jurisdictions dealing with the right of action of a wife against her husband for torts under married women's acts and distinguished the opposite holdings in Arkansas, Oklahoma, Connecticut and New Hampshire on the basis of the difference in the statutes involved. There have been many decisions on the question since the Keister Case. ²

The division of opinion occurs largely from the wording and construction of the particular act, although there are conflicts among the cases not explainable merely by statutory differences. 27 Am. Jur., Husband and Wife, § 591, p. 192.

Although the majority rule applied in the Keister Case has been criticized in the opposing cases, and by some text-writers, ³ we have not found that any court which has adopted that rule has changed front. The author of the annotation in 89 A.L.R. 118 says that recent cases have adhered to the 'great weight of authority' and hold that the statutes giving married women the right to sue separately for wrongs to their separate property and personal security conferred no right on either spouse to sue the other for personal injuries. Likewise the author of the annotation in 160 A.L.R. 1406 ...