Wright v. Davis

Decision Date03 May 1949
Docket NumberNo. CC748.,CC748.
CourtWest Virginia Supreme Court
PartiesWRIGHT. v. DAVIS et al.
Syllabus by the Court.

1. The public policy of this State does not permit a wife to maintain an action at law against her husband for damages for personal injuries caused by his wrongful act.

2. Under the provisions of Code, 55-7-5, which relate to an action for damages for wrongful death in favor of the personal representative of the injured person whose death results from the act of the wrongdoer and which impose liability upon the wrongdoer when his act would have entitled the injured person, if death had not ensued, to maintain an action for damages caused by such wrongful act, the personal representative of a deceased wife who, having finally separated from her husband and having instituted an undetermined suit for divorce, was shot and killed by the husband who then killed himself, cannot maintain an action at law for damages for her wrongful death against the personal representatives of the deceased husband.

Certified from Circuit Court, Marion County.

Action by Thomas J. Wright, as administrator of the estate of Nellie Marie Yost, deceased, against Edwina Davis and others, administratrices, etc. and others, for wrongful death of plaintiff's intestate. The circuit court sustained defendants' demurrer to the declaration, and on its own motion certified its rulings to the Supreme Court of Appeals.

Ruling affirmed.

Herschel Rose, Jr., of Fairmont, for plaintiff.

Linn Mapel Brannon and Charles N. Bland, both of Weston, for defendants.

HAYMOND, President.

This action was instituted in the Circuit Court of Marion County by the plaintiff, Thomas J. Wright, as administrator of Nellie Marie Yost, deceased, to recover damages in the amount of $10,000 from the defendants, Edwina Davis and Vivian Andrews, as administratrices of Ernie Lee Russell Yost, deceased. The circuit court sustained the demurrer of the defendants to the declaration and, on its own motion, certified its ruling to this Court.

Ernie Lee Russell Yost and Nellie Marie Yost were married October 26, 1942, and lived together as husband and wife until January 2, 1948, when, because of domestic troubles, they separated and after that date they never again lived together. On February 18, 1948, the wife instituted a suit for divorce against the husband in which she charged him with cruel or inhuman treatment. On April 7, 1948, during the pendency of this suit, and while they were living separate and apart from each other, but before the entry of a decree dissolving the marriage, the husband shot and instantly killed his wife. He then shot himself and, on April 8, 1948, died as the result of his self inflicted gun shot wound.

The question certified is whether a cause of action exists in favor of the personal representative of a deceased wife against the personal representatives of her deceased husband for the death of the wife which resulted from the wrongful act of the husband committed during the continuance of the marriage but after the spouses had become estranged and had finally separated and ceased to live together as husband and wife.

The action is based upon Code, 1931, 55-7-5, which in part provides that: "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, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. * * *" This Court has said that this statute gives a right of action to the personal representative of the deceased only in case the deceased might have maintained an action, but failed to do so, against a defendant who is liable for damages. Hoover's Adm'x v. Chesapeake & O. Ry. Co., 46 W.Va. 268, 33 S.E. 224.

The common law is the basis of the jurisprudence of this State. Such parts of the common law as were in force when the Constitution of 1872 became operative and as are not repugnant to that Constitution were, by Article VIII, Section 21, declared to be the law of this State until altered or repealed by the Legislature. At common law one spouse cannot maintain an action at law against the other for damages for personal injuries. The statutes of this State which remove certain common-law disabilities of a married woman, and permit her to sue and be sued, do not change the common-law rule in this respect. Staats v. Co-Operative Transit Company, 125 W. Va. 473, 24 S.E.2d 916; Poling v. Poling, 116 W.Va. 187, 179 S.E. 604. No statute of this State authorizes or permits one spouse to sue the other spouse at law to recover damages for personal injury or other tort.

In Poling v. Poling, 116 W.Va. 187, 179 S.E. 604, in which a husband instituted an action against his wife to recover damages for personal injuries negligently caused by her in Alabama where, by statute, one spouse is permitted to sue another for such injuries, this Court, in denying his right to maintain the action in this State, said in the syllabus: "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." In discussing tort actions between husbands and wives this Court, in the opinion, used this language: "To allow actions for damages between spouses for alleged personal injury would involve the placing of an additional strain on the marriage relation. The state is vitally concerned in maintaining that relationship and not in facilitating its disruption by authorizing personal injury actions between them --'another step to destroy the sacred relation of man and wife, and to open the door to lawsuits between them for every real and fancied wrong, '--suits which the common law has refused on the ground of public policy.' Bandfield v. Bandfield, 117 Mich. 80, 75 N.W. 287, 288, 40 L.R.A. 757, 72 Am.St. Rep. 550." Though there are some decisions to the contrary on this question, Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S.W. 460, L.R.A. 1917B, 774, Ann.Cas. 1918C, 772; Robinson's Adm'r v. Robinson, 188 Ky. 49, 220 S.W. 1074; Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L.R.A., N.S., 185, Ann.Cas. 1915D 70; Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A. 1916B, 908, the conclusion reached in the Poling case that, in the absence of statute...

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