Morgan v. Leuck

• Decision Date: 11 November 1952
• Docket Number: No. CC796,CC796
• Citation: 137 W.Va. 546,72 S.E.2d 825
• Court: West Virginia Supreme Court
• Parties: MORGAN, Sheriff, v. LEUCK.

Page 825

72 S.E.2d 825

137 W.Va. 546

MORGAN, Sheriff, v. LEUCK.

No. CC796.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 1952.

Decided Nov. 11, 1952.

Syllabus by the Court.

An action for wrongful death, brought under Code, 55-7-5, as amended by Chapter 20, Acts of the Legislature, 1931, may be maintained, notwithstanding the fact that the sole beneficiary of a recovery, if any be had, is the wife of the defendant.

Paul J. Shiben and James W. Pyles, New Martinsville, for plaintiff.

Ball & Francis, New Martinsville, for defendant.

GIVEN, Judge.

This action of trespass on the case commenced in the Circuit Court of Wetzel County, by L. E. Morgan, Administrator, c. t. a., of the estate of Algie M. Simons, against Gerald J. Leuck, to recover damages for causing the death of Algie M. Simons by his allegedly wrongful act. The decedent's death occurred on February 25, 1950, as a result of an accident which occurred while decedent was riding in an automobile owned and then being driven by the defendant.

Defendant filed a plea in abatement which sets up as a defense to the action that Miriam Leuck, the wife of the defendant, will be the sole beneficiary of any recovery accruing by reason of this action. It is asserted in the plea that in effect this action is one brought by a wife against her husband and therefore, as a matter of law, is not maintainable. Plaintiff demurred to the plea in abatement which demurrer was overruled and the trial court, upon the joint motion of the parties, certified its ruling to this court.

The grounds of the plaintiff's demurrer are:

That, 'Contrary to the allegations of the plea in abatement, the act is not one of a wife against a husband.'

That, 'The plea in abatement alleges no cause for the abatement of this action.'

The foregoing presents one question: May an action for wrongful death, under Code, 55-7-5, as amended by Chapter 20, Acts of the Legislature, 1931, be maintained, where the entire recovery, if any be had, will go to the wife of the defendant? Or, to pose the question in another manner is this action in substance an action by a wife against the husband?

Undoubtedly, the common law rule of unity of husband and wife and the public policy of this state prohibits actions by one spouse to recover damages from the other for a tort. A spouse cannot sue the other in the courts of this state to recover damages for a tort occurring in a state which permits such action. Poling v. Poling, 116 W.Va. 187, 179 S.E. 604.

An action for recovery of damages for a tort brought by a feme sole against joint defendants, and the plaintiff, subsequent to bringing the action, marries one of the defendants abates as to defendant who marries the plaintiff. Staats v. Transit Co., 125 W.Va. 473, 24 S.E.2d 916. The personal representative of a deceased wife may not maintain an action for wrongful death against the personal representative of her deceased husband, though a serious estrangement existed between the husband and wife. Wright v. Davis, 132 W.Va. 722, 53 S.E.2d 335.

The reason underlying this public policy is stated in various ways. The substance of such reason is that to permit litigation between spouses would disturb the transquility of marital relations and would tend to cause bickerings, quarrels and disruptions of such relations.

The same rule has been applied for the similar reason with reference to litigation between a parent and an unemancipated infant child. Securo v. Securo, 110 W.Va. 1, 156 S.E. 750. It is to be noted that the doctrine of Securo v. Securo, supra, has been somewhat weakened by the decision of this court in the case of Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538. The Lusk case is distinguished from the Securo case upon the ground that the parent in the Lusk case was protected by insurance.

'A married woman may sue her husband at law upon a promissory note executed by the husband to a third person, and which the wife now holds as legatee under the last will and testament of the promisee; no right of contract between the husband and wife being involved.' Hamilton v. Hamilton, 95 W.Va. 387, 121 S.E. 290.

The right involved in the instant case, however, is not a contractual right. Under Code, 55-7-5, as amended, the maintenance of the action and the recovery as authorized by that statute provides for the recovery of damages only as for a tort. State ex rel. Yost v. Scouszzio, 126 W.Va. 135, 27 S.E. 451. We are of the opinion that the declaration and the plea in abatement does not involve any question relating to the sole and separate property of a married woman.

The public policy above mentioned has been criticized, but now is so firmly inbedded in our jurisprudence that we are not inclined to disturb, modify or alter such a policy. For an informative discussion relating to tort between persons in domestic relation, see Volume 43, Harvard Law Review, page 1030, et seq.

We have also noted a line of decisions in this state which permits the interposition of a defense against a personal representative, based on the contributory negligence of one or more of the beneficiaries of recovery.

At common law, there was no right of action for damages for injury occasioned by the death of a person caused by a wrongful act. The right of action was first given by a statute passed by Parliament of England, known as Lord Campbell's Act. See Swope v. Keystone Coal & Coke Co., 78 W.Va. 517, 89 S.E. 284, L.R.A.1917A, 1128.

This being a cause of action created by the statute and given only to the personal representative of the deceased, under the clear terms of the statute, does not accrue to the beneficiary. In this instance, the wife of the defendant had no cause of action against her husband. This action is brought in the name of the personal representative of the decedent, and, regardless of the fact that the wife of the defendant is the sole beneficiary, this action is not one brought by a wife against a husband and is not within the common law rule. Albrecht v. Potthoff, 192 Minn. 557, 257 N.W. 377, 96 A.L.R. 471; C. F. Rodney v. Staman, 371 Pa. 1, 89 A.2d 313.

The language of Code, 55-7-5, as amended, is very persuasive. The pertinent portion of the statute reads as follows: 'Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, * * *'.

Undoubtedly, had Algie M. Simons survived his injury, he would have been entitled to maintain an action against his son-in-law, the defendant, to recover damages.

To permit the defense presented by the plea in abatement in this action would, in effect, disregard the plain terms of Code, 55-7-5, as amended. We are of the opinion that the mere fact that Miriam Leuck is the wife of Gerald Leuck, the defendant, and will be entitled to the recovery, if any is had, is not a bar nor a defense to this action.

In accord with the foregoing, the ruling on the demurrer to the plea in abatement is reversed.

Ruling reversed.

LOVINS, Judge (dissenting).

I respectfully dissent from the conclusion reached in this action. As stated in the Courts' opinion, the public policy of this state does not permit one spouse to sue another for the recovery of damages for a tort. The cases of Poling v. Poling, 116 W.Va. 187, 179 S.E. 604; Staats v. Transit Co., 125 W.Va. 473, 24 S.E.2d 916; Wright v. Davis, 132 W.Va. 722, 53 S.E.2d 335; indubitably establish and define that policy. Further, as stated, the gravamen of the plea in abatement considered in this case is the admitted fact that the sole beneficiary of a recovery, if any be had, is the wife...