Jones v. Pledger, 19337.

• Decision Date: 11 April 1966
• Docket Number: No. 19337.,19337.
• Citation: 363 F.2d 986
• Parties: Norma Lee JONES, Administratrix, Estate of Zelma Mae Pledger, Deceased, Appellant, v. Anderson PLEDGER, Sr., Administrator, Estate of John Pledger, Deceased, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

363 F.2d 986 (1966)

Norma Lee JONES, Administratrix, Estate of Zelma Mae Pledger, Deceased, Appellant, v. Anderson PLEDGER, Sr., Administrator, Estate of John Pledger, Deceased, Appellee.

No. 19337.

United States Court of Appeals District of Columbia Circuit.

Argued November 15, 1965.

Decided April 11, 1966.

Petition for Rehearing Denied May 20, 1966.

Mr. Barrington D. Parker, Washington, D. C., with whom Mr. George A. Parker, Washington, D. C., was on the brief, for appellant.

Mr. Jerome Shuman, Washington, D. C., with whom Mrs. Dovey J. Roundtree, Washington, D. C., was on the brief, for appellee.

Before BAZELON, Chief Judge, and PRETTYMAN, Senior Circuit Judge, and FAHY, Circuit Judge.

Petition for Rehearing En Banc Denied May 20, 1966.

FAHY, Circuit Judge:

The administratrix of the estate of Zelma Mae Pledger sued the administrator of the Estate of John Pledger. John Pledger was the husband of Zelma Mae Pledger. The complaint alleged that the husband intentionally shot his wife, inflicting injuries from which she died, and that thereafter on the same day he took his own life. The husband and wife had separated and there was a decree of limited divorce, but the bonds of marriage had not been severed completely. The wife's sole heir and next of kin, it is alleged, is the minor son of the marriage, for whom plaintiff is guardian. The minor, it is also alleged, was dependent in part upon his mother for support and was in her sole custody. The suit is to recover damages alleged to be due the minor, and is brought under the Wrongful Death Act, D.C.Code § 16-1201, set forth infra in pertinent part.

The defendant administrator answered and moved for summary judgment, which was granted on the ground that "a wife may not maintain a personal injury suit against her husband for injuries which occurred during coverture" and, therefore, after her death there can be no action by her representative under the Wrongful Death Act because had she lived the husband, by reason solely of the doctrine of interspousal immunity, could not be sued in tort by his wife. The court thought that this followed from the terms of the Wrongful Death Act. We do not agree. The Act provides, in pertinent part:

Whenever * * * the death of a person shall be caused by the wrongful act * * * of any person * * * and the act * * * is such as would, if death had not ensued, have entitled the party injured, * * * to maintain an action and recover damages, the person who * * * would have been liable if death had not ensued shall be liable to an action for damages for such death * * * and such damages shall be assessed with reference to the injury resulting from such act * * * to the spouse and next of kin of such deceased person * * *.

D.C.Code § 16-1201 (1961 ed.).

The interspousal immunity upon which the District Court relied has prevailed in this jurisdiction. This is so notwithstanding the Married Women's Act, incorporated in our Code as Section 30-208.¹ Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180; Mountjoy v. Mountjoy, D.C.App., 206 A.2d 733; and see Steele v. Steele, 65 F.Supp. 329 (D.D.C.). The important respects in which this Act eliminated a wife's disability did not go so far, the Court held in Thompson, as to enable her to sue her husband for a tort committed by him upon her person. The Court explained:

Apart from the consideration that the perpetration of such atrocious wrongs affords adequate grounds for relief under the statutes of divorce and alimony, this construction which would discard the immunity would, at the same time, open the doors of the courts to accusations of all sorts of one spouse against the other, and bring into public notice complaints for assault, slander, and libel, and alleged injuries to property of the one or the other, by husband against wife, or wife against husband. Whether the exercise of such jurisdiction would be promotive of the public welfare and domestic harmony is at least a debatable question. The possible evils of such legislation might well make the lawmaking power hesitate to enact it. But these and kindred considerations are addressed to the legislative, not the judicial, branch of the government. In cases like the present, interpretation of the law is the only function of the courts.

218 U.S. at 617-618, 31 S.Ct. at 112.

Thompson, however, involved only the question whether the Married Women's Act should be construed to have abrogated by statute the husband's immunity.

The Court was not concerned with whether the doctrine of interspousal immunity in tort could be changed in this jurisdiction by evolution of the common law through judicial decision in the light of changed conditions. Since for reasons to be stated we hold that the doctrine does not apply to the facts of the present case we do not face that problem.

In Thompson both husband and wife were living and the marriage was in being when the wife sued the husband. Our question arises in quite different circumstances. It is brought by the legal representative of the wife after her death, for the benefit of her minor child; and it is against the administrator of the husband's estate, not against the husband himself. That such an action is not barred by a husband's immunity from an action by his wife becomes clear when the nature of an action under the Wrongful Death Act is considered.

At common law there was no right of action for wrongfully causing the death of another. Lord Ellenborough once decided: "In a civil Court, the death of a human being could not be complained of as an injury * * *."² The right of action exists in the District of Columbia by virtue of our statute, D.C.Code, § 16-1201, supra.

Such a statute is said to create a right derivative in nature. The cases divide on whether the right is derived from a right of action or from a cause of action. "A right of action is a remedial right affording redress for the infringement of a legal right belonging to some definite person, whereas a cause of action is the operative facts which give rise to such right of action." Fielder v. Ohio Edison Co., 158 Ohio St. 375, 382, 109 N.E.2d 855, 859...