Zysk v. Zysk
| Decision Date | 12 January 1990 |
| Docket Number | No. 881211,881211 |
| Citation | 404 S.E.2d 721,239 Va. 32 |
| Court | Virginia Supreme Court |
| Parties | , 58 USLW 2464 Lynn L. ZYSK v. Heinz Rudolph ZYSK. * Record |
W. Christopher Currie (Morano, Colan & Butler, Richmond, on briefs), for appellant.
Robert B. Delano, Jr. (Albert M. Orgain, IV, A. Davis Bugg, Jr., Sands, Anderson, Marks & Miller, Rumsey, Breeden, Hubbard, Bugg & Terry, Irvington, on brief), for appellee.
Present: CARRICO, C.J., COMPTON, STEPHENSON, RUSSELL, WHITING, and LACY, JJ., and GORDON, Retired Justice.
The question for decision in this civil appeal is whether participation in the crime of fornication, in violation of Code § 18.2-344, bars recovery in tort for injuries resulting from that criminal act.
Appellant Lynn L. Zysk instituted this action against appellee Heinz Rudolph Zysk, her husband, seeking recovery in damages for alleged personal injuries and other losses caused by the defendant's conduct prior to the marriage. The defendant filed a demurrer, which the trial court sustained. We awarded the plaintiff this appeal from the court's August 1988 order dismissing the action.
We will summarize the allegations of the motion for judgment in accord with the familiar principle that a demurrer admits the truth of all properly pled material facts. The plaintiff alleged that the parties were married in May 1986 and that they permanently separated about eight months later. She asserted that, shortly before the marriage, "the parties engaged in consensual sexual intercourse." Further, she alleged, "unbeknownst to the Plaintiff, the Defendant was at that time infected with the Herpes Simplex Type 2 virus, and he was a carrier thereof."
In addition, the plaintiff asserted that defendant "was fully aware that he was so infected." She claimed that the infection "was at its active stage and thus was highly contagious at the time the parties engaged in sexual intercourse." She also alleged that at no time prior to the intercourse did the defendant inform the plaintiff of his condition "nor did he attempt to take any precautions whatsoever to prevent the transmission of the virus to the Plaintiff."
As a result, the plaintiff alleged, she became infected with the virus which "is a permanent and incurable condition." She sought judgment in damages for alleged personal injuries, economic losses, and emotional distress on the grounds that defendant engaged in intentional and negligent conduct.
Code § 18.2-344 provides: "Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor." In sustaining the demurrer, the trial court implicitly adopted defendant's contention that the plaintiff, a participant in the unlawful act of fornication, is barred from recovering damages resulting from the act. We hold that the trial court was correct.
Virginia follows the general rule that "a party who consents to and participates in an immoral or illegal act cannot recover damages from other participants for the consequence of that act." Miller v. Bennett, 190 Va. 162, 164-65, 56 S.E.2d 217, 218 (1949) (). The foregoing principle applies to all civil actions, whether in tort or in contract. See Levy v. Davis, 115 Va. 814, 80 S.E. 791 (1914) (); Roller v. Murray, 112 Va. 780, 72 S.E. 665 (1911) (). The rule mainly is premised on the idea that courts will not assist the participant in an illegal act who seeks to profit from the act's commission. 190 Va. at 165, 56 S.E.2d at 218-19.
When applied to tort actions, as here, other reasons support the rule. As we have indicated, consent, freely given without fraud or duress, bars recovery,...
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