Oshiek v. Oshiek, 18212

• Decision Date: 12 May 1964
• Docket Number: No. 18212,18212
• Citation: 136 S.E.2d 303,244 S.C. 249
• Court: South Carolina Supreme Court
• Parties: Lena F. OSHIEK, Appellant, v. C. F. OSHIEK, Respondent.

Page 303

136 S.E.2d 303

244 S.C. 249

Lena F. OSHIEK, Appellant, v. C. F. OSHIEK, Respondent.

No. 18212.

Supreme Court of South Carolina.

May 12, 1964.

Walker & McKellar, Ridgeland, for appellant.

Joseph N. Malphrus, Ridgeland, for respondent.

MOSS, Justice.

Lena F. Oshiek, the appellant herein, and C. F. Oshiek, the respondent herein, are husband and wife, and are residents of Beaufort County, South Carolina. This interspousal action is brought by the wife against the husband and is one to recover damages for personal injuries alleged to have been sustained as a result of the negligent, willful, wanton, careless and reckless operation of an automobile owned and driven by the respondent at the time of the injury to the appellant. It is further alleged that the accident occurred near the City of Savannah, in the State of Georgia.

The husband demurred to the complaint upon the ground that it fails to state sufficient facts to constitute a cause of action, in that it is alleged that the appellant is the wife of the respondent, and the alleged automobile accident and the resulting injury to the wife occurred in the State of Georgia; that under the law of said State, one spouse has no right of action against the other for a personal tort based upon negligence and willfulness; and the right to recover for such personal injury must be determined by the law of Georgia where the injury was sutained; and since no right of action exists under the law of Georgia, the wife has no cause of action which can be enforced in South Carolina.

The demurrer was heard by the Honorable James Hugh McFaddin, Presiding Judge, and by order, dated November 15, 1963, the said demurrer was sustained and the complaint was dismissed. This appeal followed.

The sole question presented by this appeal is whether capacity to sue in an interspousal tort action should be determined by the law of the place where the tort is committed or by the law of the domicile of the parties.

It is well settled in this State that a wife can maintain an action against her husband for personal injuries sustained in an automobile accident. Section 10-216, 1962 Code of Laws. Pardue v. Pardue, 167 S.C. 129, 166 S.E. 101; and Fowler v. Fowler, 242 S.C. 252, 130 S.E.2d 568.

Under the decisions of the Courts of Georgia, it has been held that since husband and wife were considered as one person at common law, and the common law not having been changed by statute, in this respect in Georgia, neither one could maintain a civil action against the other based on a tort, and this is true regardless of whether the civil action is based upon simple negligence, willful, wanton or malicious misconduct. Eddleman v. Eddleman, 183 Ga. 766, 189 S.E. 833, 109 A.L.R. 877; and Wright v. Wright, 85 Ga.App., 721, 70 S.E.2d 152. We quote from the last cited case, the following:

'We therefore hold that there is not, in this State, any right of action in one spouse against another for a personal tort not involving any property right, and that this is true regardless of the fact that the tort is wantonly and maliciously inflicted.'

The general rule is that where an action is brought in one jurisdiction for a tort committed in another, all matters relating to the right of action are governed by the lex loci delicti. That law determines whether a person has sustained a legal injury. The actionable quality or nature of acts causing bodily injuries as tortious is therefore to be determined by reference to the lex loci delicti rather than the lex fori. Rauton v. The Pluuman Company, 183 S.C. 495, 191 S.E. 416, and the cases therein cited.

The foregoing rule has been applied to interspousal actions and whether one spouse has the right to sue the other for personal injuries has been held to be a matter to be determined by the law of the situs of the tort; if no right of action exists there the injured spouse has none which can be enforced elsewhere. Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288; Dawson v. Dawson, 224 Ala. 13, 138 So. 414; Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404; Wolozin v. Wolozin, 149 Conn. 739, 182 A.2d 8; Robinson v. Gaines, Mo., 331 S.W.2d 653; Bissonnotte v. Bissonnette, 142 A.2d 527; Boisvert v. Boisvert, 94 N.H. 357, 53 A.2d 515. Other cases discussing the right of a wife to sue her husband for injuries tortiously inflicted in a State other than the domicile of the parties, are collected in 108 A.L.R. 1126, 146 A.L.R. 705 and 22 A.L.R.2d 1248. An examination of these cases will show the general adherence to the rule of lex loci delicti.

The rule that the existence of a right of action between spouses for personal injury is a matter of substance to be determined by the law of the place where the tort was committed has been held to preclude the maintenance of such an action even in a jurisdiction which would authorize it if the tort had occurred within its boundaries, where no such right of action is recognized at the situs of the tort. In Coster v. Coster, 289 N.Y. 438, 46 N.E.2d 509, 146 A.L.R. 702 the New York Court dismissed a wife's complaint against her husband and said that her 'right to bring and to maintain the suit and to recover damages against her spouse is a substantive right, a part of her cause of action and not a mere matter of remedy,' and added that substantive rights are to be determined by the lox loci delicti unless they contravene the public policy of the forum.

The appellant urges that the law of domicile and not the rule of lex loci delicti should be applied as to the right of one spouse to sue another. She relies upon the case of Haumschild v. Continental Casualty Company, 7 Wis.2d 130, 95 N.W.2d 814, which expressly overruled the case of Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342, which latter case applied the lex loci delicti rule. The Haumschild case held...