Shaw v. Lee, 665

• Decision Date: 01 February 1963
• Docket Number: No. 665,665
• Citation: 258 N.C. 609,129 S.E.2d 288
• Court: North Carolina Supreme Court
• Parties: Ruth Olson SHAW v. Thomas H. LEE, Administrator of the Estate of David M. Shaw, Deceased.

Page 288

129 S.E.2d 288

258 N.C. 609

Ruth Olson SHAW v. Thomas H. LEE, Administrator of the Estate of David M. Shaw, Deceased.

No. 665

Supreme Court of North Carolina.

Feb. 1, 1963

Everett, Everett & Everett by Robinson O. Everett, Durham, for plaintiff appellant.

Spears & Spears, Durham, for defendant appellee.

RODMAN, Justice.

We have in previous decisions held claimant's right to recover and the amount which may be recovered for personal injuries must be determined by the law of the state where the injuries were sustained; if no right of action exists there, the injured party has none which can be enforced elsewhere. Doss v. Sewell, 257 N.C. 404, 125 S.E.2d 899; Kizer v. Bowman, 256 N.C. 565, 124 S.E.2d 543; Knight v. Associated Transport, Inc., 255 N.C. 462, 122 S.E.2d 64; Nix v. English, 254 N.C. 414, 119 S.E.2d 220; McCombs v. McLean Trucking Co., 252 N.C. 699, 114 S.E.2d 683; Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82; Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170; 11 Am.Jur. 490; 15 C.J.S. Conflict of Laws § 12, p. 897.

At common law one spouse could not sue the other for personal injuries negligently inflicted. Scholtens v. Scholtens, 230 N.C. 149, 52 S.E.2d 350; Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180; 27 Am.Jur. 183.

Our Legislature by statute modified the common law and permitted the wife to sue the husband for injuries tortiously inflicted. Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206; Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479; Earle v. Earle, 198 N.C. 411, 151 S.E. 884; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523.

Virginia has also enacted statutes liberalizing the common law rules with respect to married women, but these statutes, as interpreted by the Supreme Court of Appeals of Virginia, do not go so far as to permit a married woman to sue her husband for injuries negligently inflicted. The Virginia statutes were examined at length to determine this specific question in Keister's Adm'r v. Keister's Ex'rs, 123 Va. 157, 96 S.E. 315, 1 A.L.R. 439, decided in 1918. The Court there held that a wife could not sue her husband for personal injuries; therefore neither she nor her administrator could sue the personal representative of her husband.

The Keister case has been recently cited by the Court of Appeals of Virginia as the law of that state at the present time. Furey v. Furey, 193 Va. 727, 71 S.E.2d 191 (1952); Vigilant Insurance Co. v. Bennett, 197 Va. 216, 89 S.E.2d 69 (1955); Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875, 81 A.L.R.2d 1150 (1960). We find no statute or decision subsequent to these dates which in our opinion reverses or modifies the conclusion reached in the Keister case. We are convinced if this action had been instituted in Virginia, plaintiff could not recover.

For practical purposes the claim asserted by plaintiff is identical with the claim asserted in Howard v. Howard, 200 N.C. 574, 158 S.E. 101, decided in 1931. There plaintiff was injured by the negligent operation of an automobile by her husband. The injuries were inflicted in New Jersey. New Jersey, adhering to the common law, denied a wife the right to sue her husband for injuries resulting from his negligence. This Court sustained a judgment of nonsuit, holding plaintiff could not recover here unless she had a right of action under the laws of New Jersey.

Ten years after the Howard case was decided, this Court was called upon to determine whether a resident of Ohio, where the common law rule was in force, could recover in an action against her husband for injuries negligently inflicted here. Applying the rule announced in the Howard case, this Court held plaintiff was entitled to maintain her action. Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649. Three members of the Court dissented, expressing the opinion that this Court ought to apply the law of Ohio where the parties were domiciled. For more than twenty years the law as announced in the Howard and Bogen cases was accepted by the lawyers of this state as sound and logical.

In 1931 the highest appellate courts of three states, including North Carolina passed on the right of a wife to recover in the state of her residence damages resulting from the negligent operation of a motor vehicle by her husband in another state. The first of these cases was Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342, decided by the Supreme Court of Wisconsin 13 January 1931. Plaintiff in that case was injured by defendant's negligence in Illinois. Plaintiff and defendant married subsequent to the injury. They were residents of Wisconsin when plaintiff was injured and when the suit was begun. Wisconsin permitted a wife to sue her husband for tort. Illinois did not and under the laws of Illinois the right of action which an unmarried person might have for injuries negligently inflicted terminated upon her marriage to the tortfeasor. Plaintiff there insisted that the Illinois law could have no extraterritorial effect, and since she originally had a cause of action for the injuries sustained, she could enforce that right in the courts of Wisconsin. The Supreme Court of Wisconsin answered that contention in this language: 'It is plaintiff's contention that the extinguishment of her cause of action in this case could only occur as a result of her loss of legal identity through marriage. From this it is contended that since, under the Wisconsin law, she did not lose her legal identity by marriage, and since the law of Wisconsin governs with respect to the legal consequences of marriage in this respect, the cause of action was not extinguished. This position involves the further contention that there is a valid distinction between the situation presented here and that presented by a statute or rule of law in the state where the tort was committed, specifically and intentionally directed to the extinguishment of causes of action. We have concluded that plaintiff's contention is not sound. If, as seems clear, the law of Illinois is to govern, both as to the creation and extent of defendant's liability, and if the liability so created is subject to discharge or modification by the law of Illinois, we see no escape from the conclusion that plaintiff's cause of action has been wholly extinguished by her marriage.'

Howard v. Howard, supra, was decided 1 April 1931. It makes no reference to the Buckeye case. It did not go as far as the decision in Buckeye. It merely held that if no cause of action ever arose in the state where the asserted wrong was done no cause of action could be asserted here.

Dawson v. Dawson, 224 Ala. 13, 138 So. 414, decided by the Supreme Court of Alabama in December 1931, is factually similar to the Howard case. There husband and wife, residents of Alabama, were traveling in Mississippi when the wife was injured by the negligence of the husband. Alabama, like North Carolina, permitted a wife to sue her husband. Mississippi, like Virginia, held that a wife had no cause of action for injuries to her person resulting from her husband's negligence. Plaintiff in that case conceded that the courts of Mississippi had held that a woman residing in Mississippi could not sue her husband for injuries inflicted in that state but contended that an Alabama wife tortiously injured by her Alabama husband while in transit through Mississippi could recover from her husband for the wrong thus done her. Hence she argued she had a right to maintain her action in Alabama. The Court disposed of the contention by quoting from its previous decision in Alabama, G. S. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 18 L.R.A. 433: 'The whole argument is at fault. The only true doctrine is that each sovereignty, state or nation, has the exclusive power to finally determine and declare what act or omissions in the conduct of one to another--whether they be strangers, or sustain relations to each other which the law recognizes, as parent and child, husband and wife, master and servants, and the like--shall impose a liability in damages for the consequent injury, and the courts of no other sovereignty can impute a damnifying quality to an act or omission which afforded no cause of action where it transpired.' The Supreme Court of Alabama did not refer to the Buckeye or Howard cases.

Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404, was decided by the Supreme Court of New Hampshire in 1934. There the wife was injured in Maine; it adhered to the common law. New Hampshire permitted a wife to sue her husband. The Court held that plaintiff could not recover as the lex loci was controlling.

It is said in the annotation to Gray v. Gray, in 94 A.L.R. 1411: '[I]t seems that the common-law rule that the spouses cannot sue each other is more than a prohibition against maintaining an action, but is a substantive rule which prevents the creation of a cause of action as between the spouses.' The annotator correctly interprets the law as it has been declared by our Court.

Robinson v. Gaines, 331 S.W.2d 653, was decided by the Supreme Court of Missouri in February 1960. Plaintiff in that case sustained injuries as a result of her husband's negligent operation of his automobile in New Mexico. Plaintiff and her husband were residents of Missouri where she sued the administrator of her husband's estate. The Court was called on to answer two questions: (1) What was the law of New Mexico? (2) If plaintiff had no cause of action in New Mexico, could she nevertheless maintain her action in Missouri? The Court held plaintiff had no right of action under the laws of New Mexico. In answering the second question, it said the lex loci was controlling, thereby prohibiting a recovery in Missouri.

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