Henry v. Henry

• Decision Date: 04 November 1976
• Docket Number: No. 25,25
• Citation: 229 S.E.2d 158,291 N.C. 156
• Court: North Carolina Supreme Court
• Parties: Judith C. HENRY v. Harold J. HENRY, Jr.

Page 158

229 S.E.2d 158

291 N.C. 156

Judith C. HENRY v. Harold J. HENRY, Jr.

No. 25.

Supreme Court of North Carolina.

Nov. 4, 1976.

DeMent, Redwine, Yeargan & Askew by Garland L. Askew, Raleigh, for plaintiff.

Bryant, Bryant, Drew & Crill by Victor S. Bryant, Jr., Durham, for defendant.

LAKE, Justice.

The sole question upon this appeal is: May a wife, injured in an automobile collision upon a highway in North Carolina proximately caused by the negligence of her husband, the driver of the automobile, maintain in the courts of North Carolina an action against her husband for damages on account of such injuries, the parties being domiciled at the time of the collision in the State of Pennsylvania, under the laws of which state no such action may be maintained by a wife against her husband?

In Howard v. Howard, 200 N.C. 574, 158 S.E. 101 (1931), the husband and wife were domiciled in North Carolina. She brought an action against him in North Carolina for injuries alleged to have been proximately caused by his negligent driving of an automobile in which she was riding as a passenger in the State of New Jersey. The law of North Carolina then, as now, permitted a wife to sue her husband for damages for injuries proximately caused by his negligence. The law of New Jersey did not allow a wife to maintain such an action against her husband. In affirming a judgment of nonsuit, this Court, speaking through Justice Adams, said:

'The actionable quality of the defendant's conduct in inflicting injury upon the plaintiff must be determined by the law of the place where the injury was done; that is, the measure of the defendant's duty and his liability for negligence must be determined by the law of New Jersey. (Citations omitted.) If an act does not give rise to a cause of action where it is committed the general rule is that the party who commits the act will not be liable elsewhere, and in such event it is immaterial that a cause of action would have arisen if the wrong had been done in the jurisdiction of the forum.'

Thus, Howard v. Howard, supra, held that although under the law of the state of the domicile (North Carolina) a wife may maintain an action against her husband for injuries proximately caused by his negligence, she may not maintain such an action in the courts of this State if the injury occurred in a state under the laws of which she could not maintain such an action.

In Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649 (1940), the facts were similar to the present case. The parties were husband and wife domiciled in Ohio, the law of which state did not permit a wife to maintain an action against her husband for injuries proximately caused by his negligence. The plaintiff wife brought such an action in the court of this State alleging such injury to her in an automobile accident which occurred in North Carolina, the law of this State permitting the wife to maintain an action against her husband for such injury. The husband's motion to dismiss was denied by the trial court. This Court affirmed. In an opinion by Justice Clarkson, in which Justice Devin, later Chief Justice, joined, it was said: 'In this jurisdiction a wife has the right to bring an action for actionable negligence against her husband. Roberts v. Roberts, 185 N.C. 566, 567, 118 S.E. 9, 29 A.L.R. 1479; Shirley v. Ayers, 201 N.C. 51, 55, 158 S.E. 840; Jernigan v. Jernigan, 207 N.C. 831, 178 S.E. 587. We think that although (the) plaintiff is a nonresident and the action transitory, the doors of the courts of this State are open to her to determine her rights,' citing Howard v. Howard, supra. In a concurring opinion by Chief Justice Stacy, in which Justice Schenck joined, it was said: 'There is no occasion to inquire whether a wife can sue her husband under the Ohio law. The law of the forum is alone applicable to the case,' citing Howard v. Howard, supra. Justice Barnhill, later Chief Justice, wrote a dissenting opinion in which Justice Winborne, later Chief Justice, and Justice Seawell joined. The basis of the dissent was that if the wife recovered judgment in North Carolina, she would have to sue upon that judgment in Ohio 'so as to be entitled to execution' and, when she did so, she would be 'met at the threshold of that suit by her disability,' so that in practical effect she would own nothing. The question of whether the Full Faith and Credit Clause of the Constitution of the United States would require Ohio to recognize the judgment of North Carolina as valid was not discussed in the dissenting opinion, nor did the dissenting opinion discuss the possibility that the North Carolina judgment might be enforceable by execution in some state other than that of the then domicile of the parties.

Thus, in Bogen v. Bogen, supra, this Court held that the law of the state in which the injury occurred (or the law of the state of the forum), not the law of the domicile, would govern the right of a wife to maintain against her husband a suit for damages for injury proximately caused by his negligence and the action could be maintained in a North Carolina court if maintainable where the injury occurred.

In Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523 (1940), the parties were husband and wife domiciled in Massachusetts, under the law of which state a wife could not maintain an action against her husband for injuries proximately caused by his negligence. The plaintiff wife sued in North Carolina for injuries sustained by her in an automobile accident which occurred in this State and which she alleged was proximately caused by the negligence of her husband. The husband's motion to dismiss was overruled and this Court affirmed, saying through Justice Clarkson, without dissent, 'We think that although plaintiff is a nonresident and the action transitory, the doors of the courts of this State are open to her to determine her rights.' While the opinion in Alberts v. Alberts, supra, does not mention the inability of the wife to sue in the state of her domicile, the decision, in effect, was that the law of the state wherein the injury occurred (or the state of the forum), not the law of the state of the domicile, controlled the right of the wife to maintain such action.

Thus, as of 1940, the decisions of this Court clearly established that the right of a wife to sue in the courts of North Carolina for damages for personal injuries proximately caused by the negligence of her husband depended upon the law of the state wherein the injury occurred, not upon the law of the state of the domicile of the parties and this was true whether such rule resulted in the allowance or disallowance of the action in North Carolina.

In Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288 (1963), the parties were husband and wife domiciled in North Carolina. The wife brought suit in the courts of North Carolina to recover damages for personal injuries received by her in an automobile accident which occurred in Virginia and which she alleged to have been proximately caused by the negligence of her husband. The law of Virginia did not allow a wife to bring such an action against her husband. The husband's demurrer to the complaint was sustained by the Superior Court and, on appeal, this Court affirmed that decision in a unanimous opinion written by Justice Rodman, thus reaffirming the rule of Howard v. Howard, supra, to the effect that the wife, though domiciled in North Carolina, could not maintain such an action in the courts of this State for injuries received in a state wherein the law did not permit a wife to bring such an action, although she could have maintained the action in the courts of this State had the accident occurred in North Carolina. Justice Rodman, speaking for a unanimous Court, said:

'We have in previous decisions held claimant's right to recover and the amount which may be recovered for personal injuries must be determined by the law of the state where the injuries were sustained; if no right of action exists there, the injured party has none which can be enforced elsewhere. * * *

'We have given thoughtful consideration to the cases and articles to which plaintiff, in her well prepared brief, called our attention. In our view it is not a question of the capacity of the spouse to sue but a question of whether the spouse ever had any cause of action. * * *

'The reasoning supporting the conclusions reached in Howard v. Howard, supra, and Bogen v. Bogen, supra, is, we think, sound. To depart from the principles on which those cases were based will open the door to a multitude of claims founded on the assertion that the law of the Lex domicilii is more equitable and just than the Lex loci--justifying the application of our substantive law instead of the Lex loci. We do not deem it wise to...