Lеna F. Oshiek, the appellant herein, and C. F. Oshiek, the respondent herein, are husband and wife, and are residents of Beaufort County, South Carolina. This inter-spousal action is brought by the wife against the husband and is one to recover damages for personal injuries alleged to have been sustained as a result of the negligent, willful, wanton, careless and reckless operation of an automobile owned and driven by the respondent at the time of the injury to the appellant. It is further alleged that the accident occurred near the City of Savannah, in the State of Georgia.
The husband demurred to the cоmplaint upon the ground that it fails to state sufficient facts to constitute a cause of action, in that it is alleged that the appellant is the wife of the respondent, and the alleged automobile accident and the resulting injury to the wife occurred in the State of Georgia; that under the law of said State, one spouse has no right of action against the other for a personal tort based upon negligence and willfulness; and the right to recоver for such personal injury must be determined by the law of Georgia where the injury was sustained; and since no right of action exists under the law of Georgia, the wifе has no cause of action which can be enforced in South Carolina.
The demurrer was heard by the Honorable James Hugh McFaddin, Presiding Judge, and by order, dated November 15, 1963, the said demurrer was sustained and the complaint was dismissed. This appeal followed.
*252 The sole question presented by this appeal is whether capacity to sue in an interspousal tort action should be determined by the law of the place where the tort is committed or by the law of the domicile of the parties.
It is well settled in this State that a wife can maintain an action against her husband for personal injuries sustained in an automobile accident. Section 10-216, 1962 Code of Laws.
Pardue v. Pardue,
167 S. C. 129,
Under the decisions of the Courts of Georgia, it has been held that since husband and wife were considered as one person at common law, and the common law not having been changed by statute, in this respect in Georgia, neither one could maintain a civil action against the other based on a tort, and this is true regardless of whether the civil action is based upon simple negligence, willful, wanton or malicious misconduct.
Eddleman v. Eddleman,
“We therefore hold that there is not, in this State, any right of action in one spouse against another for a personal tоrt not involving any property right, and that this is true regardless of the fact that the tort is wantonly and maliciously inflicted.”
The general rule is that where an action is brоught in one jurisdiction for a tort committed in another, all matters relating to the right of action are governed by the
lex loci delicti.
That law determines whether a person has sustained a legal injury. The actionable quality or nature of acts causing bodily injuries as tortious is therefore to be determined by reference tо the
lex loci delicti
rather than the
lex fori. Rauton v. The Pullman Company,
183 S. C. 495,
*253
The foregoing rule has been applied to interspousal actions and whether one spouse has the right to sue the other for personаl injuries has been held to be a matter to be determined by the law of the situs of the tort; if no right of action exists there the injured spouse has none which cаn be enforced elsewhere.
Shaw v. Lee,
The rule that the existenсe of a right of action between spouses for personal injury is a matter of substance to be determined by the law of the place where the tort was committed has been held to preclude the maintenance of such an action even in a jurisdiction which would authorize it if the tort had oсcurred within its boundaries, where no such right of action is recognized at the situs of the tort. In
Coster v. Coster,
The appellant urges that the law of domicile and not the rule of
lex loci delicti
should be аpplied as to the right of one spouse to sue another. She relies upon the case of
Haumschild v. Continental Casualty Company,
7 Wis.
*254
(2d) 130,
The claim here assеrted by the appellant is identical with the claim asserted in
Howard v. Howard,
The case of
Bogen v. Bogen,
The case of
Shaw v. Lee,
“The reasoning supporting the conclusions reached in Howard v. Howard, supra, and Bogen v. Bogen, supra, is, we think, sound. To depart from the principles on which those cases were based will open the door to a multitude of claims founded on the assertion that the law -of the lex domicilii is more equitable and just than the lex loci— justifying the application of our substantive law instead of the lex loci. We do not deem it wise to voyage into such an uncharted sea, leaving behind well-established conflict of laws rules.”
In the Shaw case, the Supreme Court of North Carolinа was urged to apply the law of the domicile. Its attention was directed to the holding of the Supreme Court of Wisconsin in the Haumschild case and other cases, together with the law review articles, supporting the application of the law of the domicile. The Court declined to follow the doctrine of the Haumschild case аnd held that the wife never had a cause of action against her husband under the law of Virginia. Thus, the North Carolina Supreme Court rejected the law of thе domicile and adhered to the lex loci delicti rule. We are convinced that the decision of the North Carolina Supreme Court in the Shaw case is sound.
We conclude, as did the Circuit Judge, that the situs of the tort is controlling on the issue of the existence of a cause of action for personal injury by one spouse against the оther. Since, under the law of the State of Georgia, the wife had no right of action against her husband for a personal tort, she has no right of action which can be enforced here.
The exception of the appellant is overruled and the judgment below is affirmed.
*256 Affirmed.