Poling v. Poling

Decision Date12 March 1935
Docket NumberC. C. 520.
Citation179 S.E. 604,116 W.Va. 187
CourtWest Virginia Supreme Court

Submitted February 29, 1935.

Syllabus by the Court.

An action at law by a husband against his wife for damages for personal injuries is against the policy of the law of this state and cannot be maintained, though sustainable under the law of the state where the injuries were received.

Case Certified from Circuit Court, Marion County.

Action by John W. Poling against Marie W. Poling. A demurrer to the declaration was overruled, demurrers to pleas in abatement were sustained, and the rulings were certified for review.

Reversed and dismissed.

Victor H. Shaw, of Fairmont, for plaintiff.

Frank C. Haymond, of Fairmont, for defendant.


On this certification there is presented for review the order of the circuit court of Marion County overruling the demurrer to the declaration and sustaining demurrers to the two pleas in abatement.

The action is by a husband against his wife to recover damages for personal injuries alleged to have been received by him in a road accident, while a passenger in an automobile owned by his wife, and being operated by her on the Lee Highway, in De Kalb County, Alabama. The injuries are attributed to her negligent driving. The wife resides in Washington, D. C., the husband in said county of Marion, where this action was brought and she was served with process.

The first plea in abatement challenges the jurisdiction of the trial court. A right of action to recover damages for a tort is transitory, and, as a general rule, may be maintained wherever the alleged wrongdoer may be found. 5 Ruling Case Law, page 1035; Owen v. Power Co., 78 W.Va. 596, 89 S.E. 262. By statute of this state, a suit may be brought against one or more nonresidents of the state in a county where any of them is found and served with process, or may have estate or debts due him or them. Code, 56-1-1, subd (d). Cf. Marsh v. O'Brien, 82 W.Va. 508, 96 S.E 795; Coulter v. Blatchley, 51 W.Va. 163, 41 S.E. 133. The plea to the trial court's jurisdiction was therefore not well founded. Demurrer thereto was properly sustained.

By the second plea in abatement, there is brought in question the right of a spouse to maintain in this jurisdiction an action of tort against his or her consort. Since it appears from the face of the declaration that the parties to the action are husband and wife, respectively, there arises on the demurrer to the declaration the same question that is presented by the second plea.

In Alabama, where the cause of action arose, one spouse may maintain an action of tort against the other. Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A.L.R. 1031; Penton v. Penton, 223 Ala. 282, 135 So. 481. The plaintiff urges that, on the principle of comity which obtains among the states of the Union, there should be applied herein the lex loci delicti commissi and that he be permitted to maintain this action. It is a general rule, applicable to both torts and contracts, that the lex loci is determinative of the right of action. It is likewise a general proposition that courts of other jurisdictions will give effect to rights which are created or recognized by the lex loci, but there is an exception which is as fundamental as the rule itself, and that is, that the lex loci must give way when it comes in conflict with the law or public policy of the lex fori. 12 Corpus Juris, page 438. "Where a right of action accrues by virtue of a statute of any state, the action may be maintained in any other state if not contrary to the public policy or law of the state where the suit is brought." Morris v. Railroad Co., 65 Iowa 727, 23 N.W. 143, 54 Am.Rep. 39. As to actions on contracts, see Campen Bros. v. Stewart, 106 W.Va. 247, 145 S.E. 381.

The common law is the basis of the jurisprudence of this state. Constitution of West Virginia, article 8, § 21. Its principles are controlling, save as changed by statute. Under the common law, one spouse can not maintain against the other an action for damages for personal injuries arising within the period of the marriage. 30 Corpus Juris, page 954; Madden on Domestic Relations, page 220; Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A. (N. S.) 191, 116 Am.St.Rep. 387. That is the law of this state today unless it has been changed by statute. Plaintiff's contention that there has been such change is sought to be based on Code, 48-3-19. It reads:

"A married woman may sue or be sued alone in any court of law or chancery in this State that may have jurisdiction of the subject matter, the same in all cases as if she were a single woman, and her husband shall not be joined with her in any case unless, for reasons other than the marital relation, it is proper or necessary, because of his interest or liability, to make him a party. In no case need a married woman, because of being such, prosecute or defend by guardian or next friend."

It is urged that the provision that a married woman may sue or be sued "the same in all cases as if she were a single woman" is of sufficient breadth to include actions between husbands and wives. That result would be possible only if great liberality of construction were proper to be applied. But such would not be the correct manner of approach. There is a fundamental rule that statutes in derogation of the common law are to be strictly construed. Kellar v. James, 63 W.Va. 139, 59 S.E. 939, 14 L.R.A. (N. S.) 1003; State v. Grymes, 65 W.Va. 451, 456, 64 S.E. 728, 17 Ann.Cas. 833; II Sutherland Statutory Construction (2d Ed.) § 454. "Statutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used." Bank v. Thomas, 75 W.Va. 321, 83 S.E. 985. A fundamental and time- honored principle of the common law is not to be deemed uprooted by implication.

In changing certain common law provisions in respect of the rights of married women, the legislature has been specific and unequivocal. For example, a married woman may become a business partner with any person "including her husband." Code, 48-3-18. She shall be liable for her tortious acts, and her husband shall not be liable therefor unless he instigated them. Code, 48-3-20. These departures from the common law are clear and specific. It is but reasonable to assume that if the legislature had intended to change the common law so that husbands and wives could maintain tort actions against each other, the expression of that intent would have been explicit, as in the two departures instanced. Evidently the purpose of the act was not to authorize damage actions between spouses, but to make it possible for a married woman to sue, or be sued by, a third person, without her husband's being joined with her as plaintiff or defendant, as was required by the common law.

In Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111 112, 54 L.Ed. 1180, 30 L.R.A. (N. S.) 1153, 21 Ann.Cas. 921, the Supreme Court of the United States had under consideration a statute pertaining to the District of Columbia very similar to ours (above quoted). By the statute there under attention married women were authorized to sue separately for "the recovery, security, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried." Code of Laws D. C. 1901, § 1155. In respect thereof the court said: "The limitation upon her right of action imposed in the requirement of the common law that the husband should join her was removed by the statute, and she was permitted to recover separately for such torts, as freely as if she were still...

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