*1 State, in this practice proceedings the criminal presents. record aside; reversed; verdict set Judgments to quash remanded with direction case the indictment. Administrator, etc. Sheriff, Morgan,
L. Estate Algie Simons, Deceased M. J. Gerald Leuck (CC 796) 11, 1952. 23, 1952. September Submitted Decided November Lovins, Judge, dissenting. plaintiff. James W. for Pyles, J. Shiben and
Paul Francis, Ball defendant. & for Judge: Given, on case commenced in trespass
This action Morgan, L. E. Admin- County, by Circuit Court Wetzel istrator, a., Simons, c. t. of the estate of M. Algie Gerald J. causing . of Algie allegedly wrongful M. Simons act. 25, 1950, The decedent’s February death occurred on *2 result of an accident occurred decedent while riding in an being owned and then automobile driven the defendant.
Defendant filed a in which sets plea up abatement a defense to the action that Miriam the wife of the defendant, will the sole of any be accruing by reason of this action. It is in the plea asserted in effect this action is one against wife her therefore, law, husband and as a matter maintainable. Plaintiff demurred to in plea abatement court, which demurrer was overruled and trial upon joint parties, motion of the its to ruling certified court. grounds
The plaintiff’s demurrer are: That, allegations to “Contrary plea abate- ment, the act is not one of a against wife husband.”
That, “The in abatement alleges cause for the abatement of this action.”.
The one an foregoing presents question: May action for wrongful death, under as amended by Chap- 1931, maintained, ter Acts of the Legislature, where the entire recovery, any had, go wife Or, pose the defendant? man- question another ner, is this an aby action in substance action the husband?
Undoubtedly,
unity
the common law rule of
of husband
prohibits
and wife and the
of this state
one
from
spouse
damages
actions
the other
A
for a tort.
cannot sue the other
the courts
spouse
occurring
of this state to recover
for a tort
Poling,
W.
permits
Poling
state which
such
187,
451. We relating any question in abatement does not involve of a married separate property sole and woman. criticized, has above mentioned been The is firmly but now so inbedded in our jurisprudence disturb, we are not inclined to modify or alter such a For an policy. informative discussion relating to tort be- relation, tween in domestic persons see Volume Har- Review, vard page Law et. seq.
We have also noted a line of decisions this state which permits the interposition against personal representative, based on the contributory negligence one or more of the beneficiaries of recovery. law,
At common
there
no right
was
of action for
injury
person
occasioned
death of
caused
given by
act. The
of action
first
passed by
England,
statute
Parliament of
as Lord
known
Act. See
v. Coal & Coke
Campbell’s
517,
This
a cause of action
the statute
being
created
of the de-
given only
personal representative
ceased,
under the clear terms of the
does not
instance,
In
beneficiary.
accrue to the
wife
defendant had no cause of action
husband.
repre-
This action
in the name of the
brought
personal
decedent, and,
of the fact that
regardless
sentative
beneficiary,
of the defendant
is the sole
a husband
action is not one
the common
rule. Albrecht
and is not within
law
Staman,
Rodney
cf
(Minn.) 257 N. W.
Potthoff,
(Pa.)
The reads as of the statute pertinent portion The suasive. *4 caused person death of a shall “Whenever the follows: act, default, neglect act, or neglect, ensued) have had not (if death or is such as would default an action to recover to maintain injured the party entitled case, such thereof, then, every and in respect which, have been would who, corporation or the person the an action ensued, to shall be liable if death had liable person the death notwithstanding damages, ** injured, injury, Simons survived Algie had M. Undoubtedly, maintain action entitled to he have been would defendant, damages. son-in-law, the in abate- plea the permit presented the To effect, plain the would, disregard ment in this opinion the 55-7-5, are of as amended. We terms of is the wife Miriam Leuck mere fact that to the defendant, and éntitled will be Gerald nor a defense to had, not a bar if is recovery, any on the demurrer ruling foregoing, In accord with in abatement reversed. plea to the reversed.
Ruling Lovins, Judge, dissenting: reached in
I dissent from the conclusion respectfully opinion, this action. As stated in the Court’s one to sue spouse of this state does not for a tort. The cases another for the Staats Poling Poling, 179 S. Davis, 916; Wright 24 E. 2d Transit and 335; indubitably establish Further, stated, gravamen policy. define that is the ad- considered this case abatement any recovery, mitted fact that the sole had, of the defendant. is the wife realities and undue ignores gives The decision herein form, specious It seems rather than substance. weight reality not in one to me to that this action is say action is in fact The cause of the husband. bring right She not have the the wife. does of action gives the fact the statute but and not Algie M. Simons personal representative beneficiary, disregarded. to the should be to in the If adhere to the adverted we unity Courts’ of husband opinion with reference cannot, wife, certainly logic respect due we
551 to reality, say that a wife who is the sole beneficiary a recovery in an personal represen- tative of the husband, wife’s father actually her husband.
The dissenting opinion in Albrecht N. 257 Potthoff, (Minn.), 377, is sound in comports reason and public policy of this state. The in doctrine laid down Davenport (N. v. Patrick, C.), 203, 44 S. E. 2d states the true rule to be applied cases of this 9th kind. The headnote in Davenport Patrick, supra, reads as follows: “The estate, administrator of childless deceased wife’s being entitled to recover damages surviving from her husband for her wrongful death as result husband’s negligence, has no cause of action against husband amount of Patrick, wife’s expenses.” burial Davenport supra, that, also holds “Courts look nominal beyond party, whose name on death appears plaintiff record as action, and consider legal questions affecting raised as real party interest.”
This court looks beyond nominal parties likewise party in An interest. action for wrongful death of an infant,-illegally employed, barred the contributory negligence of a minor’s father is the who sole beneficiary of recovery. Hendricks v. Co., Public Service 111 W. Va. 576, 411; Co., 163 S. E. Irvine v. Tanning 388, 97 125 W. Va. 110; Co., S. E. Wills v. Coal 476, 125 367; W. Va. Swope v. Coal & Co., 517, Coke Hendricks v. Public Service supra; Dickinson v. Stuart Colliery Co., 325, E. 654. The first and second points syllabus case read follows: “1. For the a boy under fourteen years old, in consequence mine, in a employment coal violation Code, 1913, 15H, of the ch. ser. sec. 15H, sec. Barnes’ ch. sec. with the consent father, express implied, or there is no right of re covery by the administrator for the benefit of the father.” A“2. father’s abandonment of children, his wife and sufferance of the procurement divorce, decree of alimony and custody children from the alimony by flight payment
avoidance care and agent state, constitute *6 one of them of children, exposure and her of the custody death, negligence in his is the resulting danger for of recovery precludes father and of the de- and sisters can the brothers Nor benefit.” of the de- parent negligent ceased be substituted Co., supra. Coke v. Coal & ceased. of decedent the distributee
Moreover, a settlement with
401, 190 S.
Carroll, 118 Va.
Fetty
bars the
aof
the sole distributees
“A
settlement with
valid
introduced
for his
decedent
recover dam-
administrator
decedent’s
the
related to the principle
ages for such death.” Somewhat
beneficiary
a
Carroll,
recovery by
Fetty
supra,
stated
decedent,
the death of the
of a connection with
because
recovery
deny
of cases
found in the line
will be
beneficiary
the
policy
of an insurance
where
beneficiary
Co.,
Ins.
the insured.
has murdered
Wickline
Company, W.
743; Johnston v. Insurance
Va.
Prunty v. an infant who the benefit of recovery permitted ques- same the present and does injury survived case. instant tion as that involved the the denying principle say I do not mean to exactly of a decedent to a recovery negligent sole here, since the presented to the situation parallel wrong, case has done in this beneficiary contribute did she nor, insofar as the record discloses But, of her father. and death any way injury in- principle for the equitable cases above cited stand amended. 55-7-5, as herent in an under recovery by a bar principle interposes Such is barred. personal representative, conditions, all owners practically Under modern from them protecting insurance carry motor vehicles occurring of other liability persons for death or injury by reason of the operation such vehicle. With mind, situation in it is a fair inference that the decision in this case will door of open temptation for persons standing in domestic relation to bring and prosecute collusive actions.
To recovery by the personal representative under amended, as who will required to turn over the entire defendant, is to ignore state,
as well reasons it upon which I founded. would therefore hold abatement presents a bar to the maintenance of this action. et *7 R. al. Gordon,
John F.H. Graham
(No. 10463) September 3, Submitted 1952. Decided November