Korman v. Carpenter

• Decision Date: 13 June 1975
• Docket Number: No. 740854,740854
• Citation: 216 S.E.2d 195,216 Va. 86
• Parties: James W. KORMAN, Administrator, etc. v. Arthur J. CARPENTER, Jr., Committee, etc. Record
• Court: Virginia Supreme Court

Page 195

216 S.E.2d 195

216 Va. 86

James W. KORMAN, Administrator, etc. v. Arthur J. CARPENTER, Jr., Committee, etc.

Record No. 740854.

Supreme Court of Virginia.

June 13, 1975.

James W. Korman, Kinney, Smith & Bitner, Arlington, for plaintiff in error.

Aubrey M. Daniel, III, Francis X. Grossi, Jr., Williams, Connolly & Califano, Washington, D.C., Earl C. Dudley, Jr., Williams, Connolly & Califano, Arlington, for defendant in error.

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

HARRISON, Justice.

In Surratt, Adm'r v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971), we held that in automobile accident litigation the immunity enjoyed by one spouse from personal injury or death actions initiated by the other should be abrogated. Here we are asked to eliminate the interspousal immunity doctrine in its entirety; or alternatively, to hold that an action may be maintained predicated upon an injury to one spouse by the marital partner when the wrongful act results in the termination of the marriage by death.

On September 19, 1971, appellee's ward, Alfred B. Houghton, fatally shot his wife, appellant's decedent, Katherine Pollard Maddux Houghton. On his plea of guilty Houghton was convicted of second degree murder and sentenced to serve twenty years in the penitentiary. At the time of the homicide the parties, although not divorced, were living separate and apart, having prior thereto executed a separation and property settlement agreement. Mrs. Houghton was survived by her husband, both parents and two brothers.

The administrator of the decedent's estate brought an action for wrongful death on behalf of Mrs. Houghton's parents and brothers against Houghton's committee. In his motion for judgment the administrator made no claim of economic loss and sought only damages for solace. Houghton's committee demurred on the ground that no action could be maintained under Virginia's Wrongful Death Act (Code § 8--633) since Mrs. Houghton would not have been able to maintain an action for assault against her husband had she lived. The trial court sustained the demurrer, relying upon Keister's Adm'r v. Keister's Ex'rs, 123 Va. 157, 96 S.E. 315 (1918), and the administrator has appealed.

Appellee says that this action is undistinguishable from Keister. There the administrator of a wife's estate brought an action for wrongful death against her husband's personal representative, claiming that she died as the result of an assault by the husband. This court held that no such action could be maintained because the Virginia Married Woman's Act (now Code § 55--36) did not give the wife the right to sue her husband for a personal tort. The controverted question in Keister was whether the married woman's statute 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 by the husband during the coverture. This court concluded that the portion of the statute under consideration had reference only to the remedies thereby given to married women and did not confer the substantive right necessary to support such a right of action by a married woman against her husband.

In Surratt we observed that the Keister case stood for the proposition that in 1918 the common law afforded the wife no right to sue her husband for a personal tort, and that Keister and Furey v. Furey, 193 Va. 727, 71 S.E.2d 191 (1952), decided that the Married Woman's Act conferred no such right whether the tort was committed before or after marriage.

In abrogating the rules of parental and interspousal immunity in automobile accident litigation in Smith v. Kauffman, Adm'r, 212 Va. 181, 183 S.E.2d 190 (1971), and in Surratt, respectively, we noted the high incidence of liability insurance covering Virginia-based motor vehicles, together with the mandatory uninsured motorist endorsements to insurance policies. We concluded that the rule could no longer be supported as promotive of the peace and tranquility of the home, and that, because of almost universal liability insurance coverage, a rule adopted and followed for the common good no longer served its purpose and in fact prejudiced the great majority. In Smith we quoted with approval from Immer v. Risco, 56 N.J. 482, 489--90, 267 A.2d 481, 484--85 (1970), as follows:

'What the New Jersey Supreme Court said while abrogating interspousal immunity in automobile accident litigation is equally pertinent to this case:

"(R)ealistically, it must be remembered when dealing with the question of conjugal harmony that today virtually every owner of a motor vehicle with a sense of responsibility carries liability insurance coverage. The presence of insurance militates against the possibility that the interspousal relationship will be disrupted since a recovery will in most cases be paid by the insurance carrier rather than by the defendant spouse. In fact, it is ironic that the presence of insurance has spawned the second rationale, I.e., that of protecting the insurance carriers against fraud and collusion. That rationale belies the possibility that domestic harmony will be disturbed since its very premise is that the interspousal relationship is so harmonious that fraud and collusion will result. Domestic harmony may be more threatened by denying a cause of action than by permitting one where there is insurance coverage. The cost of making the injured spouse whole would necessarily come out of the family coffers, yet a tort-feasor spouse surely anticipates that he will be covered in the event that his negligence causes his spouse injuries. This unexpected drain on the family's financial resources could likely lead to an interference with the normal family life. And it is doubtful that this void in insurance coverage would comport with the reasonable expectations of the insured that this Court has so often sought to protect. . . . In short, the immunity doctrine cannot be fairly sustained on the basis that negligence suits between husbands and wives will disrupt the harmony of the family." 212 Va. at 185--86, 183 S.E.2d at 194.

While there have been other judicial exceptions made to the traditional common law protections of the parent-child relationship, there was in each instance a compelling reason for the exception, and the actual conflict was not alone between parent and child. The only exception to interspousal immunity is the one that we carved out in Surratt for injuries received in automobile accidents. Prior thereto, and in Furey, we said:

'The reasons assigned by Judge Burks for his concurrence in the Keister decision are still valid. After reviewing some of the common-law limitations upon the wife, and saying that it was those restrictions which the married women's acts in the several States had removed, he added:

"* * * But it must be borne in mind that marriage is something more than a mere civil contract. The mere act of marriage gives rise to a new status between the parties thereto and society, and to new rights and obligations between the parties themselves. It creates the most sacred relation known to society, and is fostered, regulated, and protected by statute. Upon the preservation of its integrity the health,...