Keister's Adm'r v. Keister's Ex'rs

• Decision Date: 13 June 1918
• Citation: 96 S.E. 315
• Parties: KEISTER'S ADM'R. v. KEISTER'S EX'RS.
• Court: Virginia Supreme Court

96 S.E. 315

KEISTER'S ADM'R.

v.KEISTER'S EX'RS.

Supreme Court of Appeals of Virginia,

June 13, 1918.

Error to Circuit Court of City of Norfolk.

Action by Payette Osiburn, as administrator of Estelle Osburn Keister, deceased, against D. E. Keister and M. L. Keister, as executors of Z. E. Keister, deceased. Judgment for defendants, and plaintiff brings error. Affirmed.

This case is before us upon review of the action of the court below in sustaining a demurrer to the declaration of the plaintiff in error against the defendants in error and dismissing the declaration in an action for damages for the death of the plaintiff's Intestate, alleged to have been caused by the wrongful act of the testator of the defendants in error.

The Facts.

The material facts appearing from the allegations of the declaration are that a wife (the plaintiff in error's intestate) was killed by her husband (the defendants in error's testator); that the husband and wife were lawfully married, and were living together in that relationship when the wife was so killed; that the husband survived his wife, and then died leaving a will by the appointment of which the defendants in error duly qualified as his executors.

E. R. Baird, Jr., of Norfolk, for plaintiff in error.

E. R. F. Wells, of Norfolk, for defendants in error.

SIMS, J. (after stating the facts as above). The following positions with respect to the law are well settled and are not questioned by counsel in the case:

Notwithstanding the existence of the statutes, sections 2902, 2903, and 2906 of the Code of Virginia, the plaintiff in error in the instant case had no right to maintain the action, and the demurrer was therefore properly sustained by the trial court, unless the wife, had she survived, would have had a right of action against the husband, had he survived, for damages for an assault upon her by him during the coverture. At common law no such right of action existed on the part of the wife. If such a right of action existed at the time the action in the instant case was instituted, it was conferred by section 2286a of Pollard's Code of Virginia 1904, (Acts 1899-1900, p. 1240). That part of such statute relied on as conferring the right of action in question is as follows:

" * * * A married woman may contract and be contracted with, sue * * * in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by * * * her, shall have accrued before or after the passage of this act. * * *"

The sole controverted question in the case, upon which its decision turns, is:

(1) Has the statute last quoted changed the common law on the subject and conferred upon a married woman a right of action against a husband for damages for an assault upon her committed by the husband during the coverture?

This is a question of first impression in this state, and must therefore be resolved by a consideration of it upon principle and the construction of the statute last quoted, with such aid as we can obtain from the decisions of other jurisdictions construing statutes on the same subject.

In approaching this question we have to bear in mind the elementary principle that a right of action at law can in no case exist unless: (a) The plaintiff be found to have had, at the time the alleged cause of action arose, a substantive civil right the breach or invasion of which right (constituting in the case of a tort a civil wrong) gave rise to a cause of action; and (b) the plaintiff be found to have had at the time the action is instituted a civil remedy by action at law.

In regard to the very ancient maxim that wherever there is a right there is a remedy, it is said in 1 Cooley on Torts (3d Ed.) p. 22:

"No Wrong Without a Remedy. Judicial development of the law is perceived in two forms: In the recognition of rights and in giving a remedy for the invasion or deprivation of rights. * * * A right cannot be recognized until the principle is found which, supports it. Bat when a right is found, a remedy must follow of course."

The primary inquiry confronting us in the instant case, therefore, is whether the married woman's statute in Virginia, the portion of which relied on by the plaintiff in error is quoted above, confers upon married women during coverture the substantive civil right essential to support a cause of action in a suit at law for damages instituted during the coverture by a wife against her husband for an assault upon her committed by the husband during the coverture?

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.

The inquiry before us, therefore, is not whether the statute relied on, as aforesaid, has given married women the same remedies they would have if unmarried (whether as if they had never married, or as if no longer married) to enforce or to obtain compensation for the invasion of substantive rights which may accrue to married women (whether at common law or by statute), but whether the statute aforesaid has conferred on married women the particular substantive right aforesaid. This is apparent when we consider that the statute may do the former completely, and yet, if a mar-ried woman be not given the civil right aforesaid, out of the invasion of which only can arise the cause of action in question, the remedy given her by the statute can avail her nothing in an action such as that in question.

Hence it must be constantly borne in mind in the consideration of the subject before us that the primary inquiry is: Has the statute last quoted conferred upon married women the substantive right above mentioned; has it changed the rule of the common law on this subject?

Now, with respect to the construction of statutes in derogation of the common law, there are certain well-settled rules which have been so long and so well established that we need but to refer to them. Among those rules is the following: The Legislature is presumed to have known and to have had the common law in mind in the enactment of the statute; and the statute will be construed to read as if the common law remained unchanged (that is to say, the statute will be read along with the provisions of the common law, and the latter will be read into the statute), unless the purpose of the statute to change the common law appears from the express language of it or by necessary Implication from such language. The existence of the rule last mentioned is not controverted in the instant case. We do not, therefore, occupy space in discussing it, or citing authority to sustain the statement of such rule.

Coming now to construe the statute of Virginia aforesaid in the light of the common law on the subject, and by aid of the rule of statutory construction mentioned, we are met by the following considerations:

Such statute does not expressly confer the substantive right aforesaid. Does it do so by necessary implication? If so, it must, of course, be done by words of no uncertain meaning, by language which must not be entirely consistent with the common law on the subject remaining unaltered.

Whether the statute above quoted confers on married women the substantive right aforesaid manifestly depends, in the last analysis, upon, ascertaining to what point of time, in the life of the married woman asserting the right of action in question, the statute means to refer in its reference to her status as "unmarried, " and also upon ascertaining the meaning with which the statute uses the word "unmarried." Does it mean to refer to the time of the arising of the alleged cause of action (to the time of the assault of the husband upon the wife in a case such as the instant case), and to say that the status of a married woman shall be regarded, as of that time, as if it were the same as if she had never been married, or does the statute refer to the time the suit or action is instituted, and mean to say that, as of the latter time, she shall be regarded as not having a husband? Are we to construe the clause of the statute "as if she were unmarried" to mean "as if she did not have a husband, " or "as if she had never been married"? It is only by the latter construction than any foundation can be found on which to rest the position that the statute by implication changes the common law and confers upon married women the substantive right aforesaid.

Now the word "unmarried" originally and ordinarily means, it is true, never having been married; "but the term is a word of flexible meaning, and slight circumstances will be sufficient to give the word its other meaning of not having a husband or wife at the time in question." 8 Words and Phrases (1st Ed.) p. 7196. (Italics supplied.) The subject of that part of the statute which is under consideration is the right of married women to sue (and also their liability to be sued, on the side of the statute not quoted above and with which we are not concerned in the instant case). 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 is not necessary, therefore, that any further meaning be given to it. This being so, we cannot, under the rule of construction above referred to, give any further meaning to it. Hence it seems clear to us that the...