FOY JOHNSON SURRATT, ADMINISTRATOR, ETC. V. LOMAN THOMPSON, ET AL.
Record No. 7606.
Richmond
September 1, 1971.
212 Va. 191
Present, All the Justices.
Stuart B. Campbell, Jr.; Edwin C. Stone (Campbell & Campbell; Dalton, Turk & Stone, on brief), for defendants in error.
GORDON, J., delivered the opinion of the court.
In another case decided today, we abrogated the rule of parental immunity in automobile accident litigation. Smith v. Kauffman, Admr, 212 Va. 181, 183 S.E.2d 190. This appeal requires us to decide whether the rule of interspousal immunity deserves the same fate.
Cornelia Jane Surratt died as a result of a collision between an аutomobile driven by her husband, in which she was riding, and an automobile driven by a third person. Her administrator brought this wrongful death action against her husband and the third person. We will deal first with the case against the husband.
The husband filed a demurrer to the motion for judgment on the ground that he was immune from liability. The trial court sustained the demurrer and dismissed the action against the husband.
What we said in Smith v. Kauffman, Adm‘r, supra, disposеs of any contention that we should continue the rule of interspousal immunity in automobile accident litigation because of the possibility of fraud or collusion or becаuse the rule is calculated to promote the peace and tranquillity of the home and the advantageous disposal of the family exchequer. The sole existing rеason for continuing the interspousal immunity rule is the disability of a wife to sue her husband for a personal tort under the common law as understood in the past.
In Keister‘s Adm‘r v. Keister‘s Ex‘rs, 123 Va. 157, 96 S.E. 315 (1918), involving an action by a wife‘s administrator against her husband‘s executors for her death resulting from his assault, this Court recognized that the then common law conferred no right in the wife to sue her husband for an assault. As put by Judge Burks in his concurring opinion:
At common law, husband and wife were, for the most part, regarded as one, and that one was the husband.... The mere act of marriage gives rise to а new status between the parties thereto and society, and to new rights and obligations between the parties themselves.... These obligations inhere in the mere fact of marriage, and forbid the idea that this ‘one flesh’ may so divide itself that either spouse may sue the other....
Id. at 176-77, 96 S.E. at 321-22. We held in Keister that the action could not be maintained because the Virginia married woman‘s act,
In Furey v. Furey, 193 Va. 727, 71 S.E.2d 191 (1952), we held that the married woman‘s act did not give a wife the right to maintain
So the Keister case stands for the proposition that in 1918 the common law afforded the wife no right to sue her husband for a personal tort, and the Keister and Furey cases stand for the proposition that the married woman‘s act conferred no such right whether the tort was committed before or after the marriage. Since the Virginia wrongful death statute, now
In deciding this question, we should consider the nature of the common law, well expressed by Chief Justice Vanderbilt:
... One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that eаch time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further appliсation of it the instrument of injustice. Dean Pound posed the problem admirably in his Interpretations of Legal History (1922) when he stated, ‘Law must be stable, and yet it cannot stand still. ’
State v. Culver, 23 N.J. 495, 505, 129 A.2d 715, 721 (1957).
Moreover, we have the injunction of Worrell v. Worrell, 174 Va. 11, 20, 4 S.E.2d 343, 346-47 (1939), dealing with intra fаmily tort immunity, that former rules should give way to rules of reason in the light of changed circumstances.
The metaphysical concept that husband and wife are one flesh, as
We of course do not decide whether a wife can maintain an action against her husband for рersonal injuries that do not result from a motor vehicle accident. We decide only the question before us.
We now turn to the case against Loman Thompson, the driver оf the automobile that collided with the automobile driven by Cornelia Jane Surratt‘s husband.
Before the accident the Surratt automobile and the Thompson automobile were proceeding west on Route 221 in Carroll County, the Thompson automobile in front of the Surratt automobile. As the automobiles approached the intersection of Routes 221 and 672, the Surratt automobile moved into the left lane to pass the Thompson automobile. While the Surratt automobile was passing the Thompson automobile, the Thomрson automobile turned to the left and the two automobiles collided.
After both parties had rested, the trial court struck the plaintiff‘s evidence and entered judgment for defendant Thompson, without assigning reason for its action.
Thompson‘s counsel contends that the evidence showed that his client‘s automobile flashed a left turn signal before the Surratt automobile began to pass Thompson‘s automobile. We find, however, that the evidence was in conflict whether the Thompson automobile flashed a right turn signal or a lеft turn signal. So this factual issue should have been determined by the jury.
Thompson‘s counsel also contends that Surratt was negligent as a matter of law because he violated
The evidence at the first trial having raised a jury question
Reversed and remanded.
COCHRAN, J., concurring in part and dissenting in part.
I disagree with the majority for the same reasons that prompted me to dissent in Smith v. Kauffman, Adm‘r., 212 Va. 181, 183 S.E.2d 190 (1971) this day decided, which overturned the parental immunity rule in automobile accident cases.
The majority have concluded that in the same class of сases the immunity heretofore enjoyed by one spouse from personal injury or death actions initiated by the other should also be eliminated. This decision, overruling Keister‘s Admr. v. Keister‘s Ex‘r., 123 Va. 157, 96 S.E. 315 (1918), apрears to me to be a particularly unwarranted exercise of legislative powers by this court on a question of public policy.
In Keister, we held that the legislature, in removing a married woman‘s disabilities by
Contrary to the views of the majority I am convinced that abrogation of the immunity rule as between husband and wife will result in fraud and collusion or, in contested cases, directly contradictory testimony between members of the same family. Nor, in my opinion, is the fact that almost universal liability insurance coverаge gives reasonable assurance that family finances will not be jeopardized a compelling reason for this sharp break with the principles of stare decisis to which we havе adhered in the past. In any event, the arguments suggesting that at this time the immunity rule is obsolete because the avoidance of collusion and of disruption of family harmony are nо longer as desirable as the right to compensation should be addressed to the legislature.
I would affirm the ruling of the trial court on this point.
I join with Justice Cochran in dissenting for the reasons which he has so ably stated.
In addition to those reasons, I would point out that the majority are admittedly changing the common law. In doing so they are violating the mandate of our present Constitution,1 our former Constitution2 and of statute.3
I would affirm the trial court.