ROBERT C. COUNTS v. LILLIE D. COUNTS
Record No. 780734
Supreme Court of Virginia
June 6, 1980
221 Va. 151 | 266 S.E.2d 895
Present: All the Justices.
Henry A. Whitehurst for appellee.
COMPTON, J., delivered the opinion of the Court.
In this appeal of a tort action, we review the trial court‘s action in sustaining a plea of interspousal immunity. Here, the husband sued his former wife for compensatory and punitive damages, alleging severe injuries intentionally inflicted upon him by his wife‘s co-conspirator in an abortive murder-for-hire scheme. We are urged to carve another exception to the foregoing doctrine beyond those fashioned in Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971), and Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975).1
In March of 1977, appellant Robert C. Counts, the plaintiff below, sued Miles Randolph Turner and appellee Lillie Drew Counts, alleging that Turner maliciously injured the plaintiff in January of 1975 pursuant to an agreement between Turner and Mrs. Counts for the murder of Mr. Counts. The defendants pleaded the two-year statute of limitations and Mrs. Counts filed a demurrer asserting the action was barred by the doctrine of interspousal immunity. The trial court sustained Turner‘s plea of the statute of limitations as well as Mrs. Counts’ demurrer and dismissed the action. Plaintiff sought an appeal from the March 1978 order of dismissal as to Mrs. Counts only, and we granted such request.
Because the suit against Mrs. Counts was decided on demurrer, our recitation of the facts must be based on the allegations of the motion for judgment. Pursuant to the settled rule, we will accept as true all material facts which have been properly pleaded.
During the latter part of 1974, while the Countses were married and cohabiting as husband and wife, she solicited Turner to kill Counts, promising to pay Turner $5,000 for the deed. On January 30, 1975, Turner went to the Countses’ home in Pulaski County to carry
Subsequently, Turner was convicted of maliciously wounding Counts. Nine years of a ten-year penitentiary term were suspended upon condition that Turner make “restitution” to plaintiff. Charged with conspiring to maliciously wound her husband, the wife was also convicted. She was sentenced to jail and fined. In February of 1977, the Countses’ marriage was dissolved by divorce2 and this action ensued two weeks later.
In sustaining the ex-wife‘s plea of immunity, the trial judge examined Korman and wrote that “the doctrine of interspousal immunity still is the law of Virginia” except in “automobile cases and under the actual facts of Korman.” He also was of opinion that “[i]f another exception is to be made to the rule, that must be done either by the Supreme Court of Virginia or by the General Assembly.”
On appeal, the question is whether the wife is immune from liability in tort for personal injuries intentionally inflicted upon the husband at her direction during the marriage, when the parties are divorced from the bond of matrimony at the time the action is instituted.
Plaintiff urges us to succumb to the current trend and abolish the doctrine of interspousal immunity in its entirety or, in the alternative, to substantially modify the doctrine again to embrace the facts of this case. He points out we have already recognized that a former basis for the doctrine, i.e., the fiction that husband and wife are of “one flesh,” is “outmoded,” citing Korman v. Carpenter, 216 Va. at 90, 216 S.E.2d at 197. He also notes we said in Korman that another justification for the doctrine, that is, preservation of the marriage, becomes irrelevant when one spouse murders the other thus leaving no “marriage to be saved” and no “union to be preserved.” 216 Va. at 90, 216 S.E.2d at 198. Accordingly, the argument continues, when, as here, the action is brought after the parties are finally divorced,
In Korman, we reviewed the history and development of interspousal immunity in Virginia, as articulated in Keister v. Keister, 123 Va. 157, 96 S.E. 315 (1918), through its abrogation in motor vehicle accident litigation in Surratt.3 See 216 Va. at 87-90, 216 S.E.2d at 196-97. We were concerned in Korman, as here, with a policy and rule of law designed to protect and encourage the preservation of marriages. There we noted that “[i]nterspousal immunity is only a part of a whole system of laws and policies which recognizes the mutual obligations arising from a marriage and which encourages both marital and family harmony.” 216 Va. at 90, 216 S.E.2d at 197.
Nevertheless, in Korman we forged an exception to the doctrine and permitted the suit to proceed. There we pointed out that in the automobile context of Surratt, the court considered “the high incidence of liability insurance covering Virginia-based motor vehicles, together with the mandatory uninsured motorist endorsements to insurance policies” and concluded that the doctrine “could no longer be supported as promotive of the peace and tranquility of the home.” 216 Va. at 88, 216 S.E.2d at 196. We then reasoned that
in light of Surratt it would be an anomaly for us to apply interspousal immunity in this case. We would be invoking the doctrine ostensibly to preserve a family relationship which had been voluntarily terminated by the parties; to promote domestic harmony that had disappeared from the marriage; and to save a marriage which had been terminated by the murder of the wife by the husband. The rule of stare decisis does not require such specious reasoning.
A superficial analysis of Korman and the case at bar would reveal no logical justification for abrogating the immunity in the former and applying it in the latter. It would appear on the surface that the policy concern of preserving the marriage would be as irrelevant when the marriage has been ended by divorce as when the marriage has been terminated by death.
But a close examination of the effect on the marriage relationship of permitting a living spouse to sue after divorce for even intentional torts committed during coverture by one on the other dictates a reaffirmance of the immunity doctrine, a concept which is ingrained in the body of law of this State and which is an integral part of the public policy of the Commonwealth to preserve the family unit. Were we to authorize such damage suits, we are confident the availability of such a remedy and the accompanying prospect of a monetary award would contribute to the disruption of many marriages. One example based on an elementary set of assumed facts will serve to illustrate:
The formerly stable marriage of Husband and Wife begins to deteriorate. Finally, in a particularly heated exchange, Husband intentionally strikes Wife causing an injury. Wife then leaves the marital abode and retains an attorney. During the initial consultation, the attorney concludes that Wife is entitled to a divorce on the ground of cruelty and constructive desertion, but nevertheless properly explores the possibility of a reconciliation. Having learned of the injury, the attorney also advises Wife that now in Virginia she may sue Husband
And even if the foregoing scenario did not develop in every situation, the mere availability of such an interspousal action injects into the marriage relationship just one more abrasive and unnecessary ingredient to be added to existing criminal and divorce remedies; the threat would be: “I will not only report your abuse to the criminal prosecutor and seek spousal support in the course of divorcing you, but I will also sue you for damages.” We refuse to add by judicial fiat this further impediment to the unity of marriage.
For these reasons, the judgment of the trial court will be
Affirmed.
POFF, J., dissenting.
I would not abolish the doctrine of interspousal immunity. Nor do I believe one spouse should have a right of action against the other for damages for every intentional tort. But, recognizing that the doctrine is judge-made and may be refined by this Court when necessary to promote the ends of justice, I would allow the suit in this case.
This is not a case of an “uninvited kiss“. The plaintiff has suffered grievous injuries as the result of a deliberate tort planned and committed with cold-blooded, criminal intent by the defendant acting through a hired agent. Although the marriage was not terminated by death caused by the tort as in Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975), there can be no reasonable doubt that the tort, once discovered by the plaintiff, led to the dissolution of the
The issue here is whether marriage may be asserted as a ground of immunity by a spouse whose wilful criminal conduct has destroyed the marriage. The majority reason that “[w]ere we to authorize such damage suits, we are confident the availability of such a remedy and the accompanying prospect of a monetary award would contribute to the disruption of many marriages.” I do not share that confidence.
The fallacy of the majority‘s reasoning is that it assumes that all intentional torts are alike and the consequences they produce are the same. How many marriages would survive an interspousal tort committed with intent to kill, maim, disfigure, or disable? Such malicious conduct amounts to a repudiation of the marital contract. The typical victim of such conduct would terminate the marriage regardless of the availability of a right of action for damages. Only a spouse with a saintly penchant for absolution or one enervated by fear would decide to continue the marriage. And the decision of such a person would never be substantially influenced by the availability of a right of action for damages. The saintly spouse would not be so venal as to terminate the marriage in order to gain standing to sue; the fearful spouse would forgo the right to monetary damages rather than face the trauma of divorce and the risk of retaliation.
I would hold that when, as here, a spouse has been injured by a tort committed by the other spouse with intent to kill, maim, disfigure, or disable and divorce follows the tort without intervening condonation, the victim may maintain an action for damages against the wrongdoer. If such a rule is an exception to the doctrine of interspousal immunity (and I regard it simply as the kind of refinement the evolving common law necessitates), it does no violence to the policy underlying the doctrine. Instead, it honors the ancient principle that one who suffers a wrong should not be left without a remedy.