Surratt v. Thompson

• Decision Date: 01 September 1971
• Citation: 183 S.E.2d 200,212 Va. 191
• Court: Virginia Supreme Court
• Parties: Foy Johnson SURRATT, admr., etc. v. Loman THOMPSON et al.

Page 200

183 S.E.2d 200

212 Va. 191

Foy Johnson SURRATT, admr., etc. v. Loman THOMPSON et al.

Supreme Court of Virginia.

Sept. 1, 1971.

Rehearing Denied Oct. 13, 1971.

John W. Carter, Danville (Carter & Wilson, Danville, on brief), for plaintiff in error.

Stuart B. Campbell, Jr., Wytheville, Edwin C. Stone, Radford (Campbell & Campbell, Wytheville, Dalton, Turk & Stone, Radford, on brief), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

GORDON, Justice.

In another case decided today, we abrogated the rule of parental immunity in automobile accident litigation. Smith v. Kauffman, Adm'r, 212 Va. 181, 183 S.E.2d 190. This appeal requires us to decide whether the rule of interspousal immunity deserves the same fate.

Cornelia Jane Surratt died as a result of a collision between an automobile driven by her husband, in which she was riding, and an automobile driven by a third person. Her administrator brought this wrongful death action against her husband and the third person. We will deal first with the case against the husband.

The husband filed a demurrer to the motion for judgment on the ground that he was immune from liability. The trial court sustained the demurrer and dismissed the action against the husband.

What we said in Smith v. Kauffman, Adm'r, Supra, disposes of any contention that we should continue the rule of interspousal immunity in automobile accident litigation because of the possibility of fraud or collusion or because the rule is calculated to promote the peace and tranquillity of the home and the advantageous disposal of the family exchequer. The sole existing reason for continuing the interspousal immunity rule is the disability of a wife to sue her husband for a personal tort under the common law as understood in the past.

In Keister's Adm'r v. Keister's Ex'rs, 123 Va. 157, 96 S.E. 315 (1918), involving an action by a wife's administrator against her husband's executors for her death resulting from his assault, this Court recognized that the then common law conferred no right in the wife to sue her husband for an assault. As put by Judge Burks in his concurring opinion:

'At common law, husband and wife were, for the most part, regarded as one, and that one was the husband. * * * 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 thereto. * * * These obligations inhere in the mere fact of marriage, and forbid the idea that this 'one flesh' may so divide itself that either spouse may sue the other. * * *'

Id. at 176--177, 96 S.E. at 321--322. We held in Keister that the action could not be maintained because the Virginia married woman's act, Va. Acts of Assembly 1900, ch. 1139 at 1240 (now Va. Code Ann. § 55--36 (1969)), did not give the wife the right to sue her husband for a personal tort.

In Furey v. Furey, 193 Va. 727, 71 S.E.2d 191 (1952), we held that the married woman's act did not give a wife the right to maintain an action against her husband for personal injuries incurred before the marriage. And by dictum in Vigilant Ins. Co. v. Bennett, 197 Va. 216, 89 S.E.2d 69 (1955), we reaffirmed the principles of the Keister and Furey cases.

So the Keister case stands for the proposition that in 1918 the common law afforded the wife no right to sue her husband for a personal tort, and the Keister and Furey cases stand for the proposition that the married woman's act conferred no such right whether the tort was committed before or after the marriage. Since the Virginia wrongful death statute, now Code § 8--633 (1957), affords a deceased wife's personal representative no right of action unless the right existed immediately before her death, Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271 (1946), we have this question squarely before us: Does the common law, as it exists in 1971, cling to the concept that the 'one flesh' of husband and wife may not so divide itself as to permit an action by wife against husband for personal injuries sustained in an automobile accident?

In deciding this question, we should consider the nature of the common law, well expressed by Chief Justice Vanderbilt:

'* * * One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law inforce today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Dean Pound posed the problem admirably in his Interpretations of Legal History (1922) when he stated, 'Law must be stable, and yet it cannot stand still."

State v. Culver, 23 N.J. 495, 505, 129 A.2d 715, 721 (1957).

Moreover, we have the injunction of Worrell v. Worrell, 174 Va. 11, 20, 4 S.E.2d 343, 346--347 (1939), dealing with intra family tort immunity, that former rules should give way to rules of reason in the light of changed circumstances.

The metaphysical concept that husband and wife are one flesh, as the sole barrier to interspousal actions for injuries incurred in automobile accidents, 'cannot be seriously defended today'. Immer v. Risko, 56 N.J. 482, 488, 267 A.2d 481, 484 (1970). Nothing in the nature of the common law required us in Smith v. Kauffman, Adm'r, Supra, to adhere to a parental immunity rule that no longer appeals to reason under today's high incidence of insurance covering automobile accidents. Likewise, nothing in the nature of the common law requires us to adhere to an outmoded concept that a wife cannot so separate herself from her husband's flesh as to be capable of maintaining an action against him. We therefore hold that the plaintiff can maintain this action.

We of course do not decide whether a wife can maintain an action against her husband for personal injuries that do not result from a motor vehicle accident. We decide only the question before us.

We now turn to the case against Loman Thompson, the driver of the automobile that collided with the automobile driven by Cornelia Jane Surratt's husband.

Before the accident the Surratt automobile and the Thompson automobile were proceeding west on Route 221 in Carroll County, the Thompson...