Summary
refusing to dismiss suit based upon Florida interspousal immunity doctrine
Summary of this case from Green v. U.S. Auto. Ass'n Auto & Prop. Ins. Co.Opinion
19674
August 14, 1973.
Messrs. Buist, Moore, Smythe McGee, of Charleston for Appellant, cite: As to the Circuit Judge's erring in finding that the State of Florida, domicile of the parties to the action, does not have the most dominant contacts with the parties, and that the substantive rights of the Plaintiff to sue her Defendant husband is not controlled by the laws of the State of Florida: 311 F. Supp. 984; 121 So.2d 805; 441 P.2d 699; 268 N.E.2d 552; 12 N.Y.2d 473, 191 N.E.2d 279; 142 N.W.2d 66; 222 A.2d 205; 46 N.E.2d 509; 241 A.2d 372; 289 P.2d 218; 87 N.H. 82 174A 508; 416 Pa. 1, 203 A.2d 796; 95 N.W.2d 814; 114 N.W.2d 443; 216 A.2d 781; 244 N.Y.S.2d 882; 9 N.Y.2d 34, 172 N.E.2d 526; 141 A.2d 34; 153 Conn. 303, 216 A.2d 183; 345 U.S. 571, 73 S.C. 921, 97 L.Ed. 1254; 215 A.2d 677; 244 S.C. 249, 136 S.E.2d 303; 249 Minn. 376, 82 N.W.2d 365; 260 A.2d 97; 447 P.2d 254; 258 N.C. 609, 129 S.E.2d 288; 193 A.2d 439; 213 N.E.2d 544; 138 So. 755; 26 Wis.2d 617, 133 N.W.2d 408; 27 N.J. 105, 141 A.2d 768; Restatement of Conflicts of Law, Official Draft No. 8; 29 ALR 3d 603; 96 ALR 2d 973.
Messrs. Pritchard, Myers, Morrison Bloom, of Charleston, for Respondent, cite: As to inter-spousal tort actions in South Carolina: Sec. 10-216 of the Code of Laws of South Carolina, 1962; 114 S.C. 45, 102 S.E. 787; 167 S.C. 129, 166 S.E. 101; 242 S.C. 252, 130 S.E.2d 568. As to public policy in South Carolina regarding interspousal tort actions: 187 S.C. 453, 198 S.E. 20; 242 S.C. 252, 130 S.E.2d 568; Prosser on Torts (4th Ed., 1971), Chapter 23, Sec. 122. As to the lex loci rule in South Carolina where there is a conflict of laws question in interspousal tort actions: 244 S.C. 249, 136 S.E.2d 303. As to the law in Florida regarding inter-spousal tortactions: 244 S.C. 249, 136 S.E.2d 303; 138 So. 755; 121 So.2d 805; 140 F. Supp. 925. As to there being no issue before the court warranting consideration of the so-called dominant contacts doctrine in place of the lex loci doctrine in South Carolina: 252 S.C. 261, 166 S.E.2d 99. As to public policy not requiring the adoption of a strict "Dominant Contacts" doctrine in this case: 12 N.Y.2d 473, 191 N.E.2d 279; 289 P.2d 218; 141 A.2d 34; 193 A.2d 439; 47 A.2d 874; 39 N.Y.S.2d 810; 8 S.E.2d 523; 12 S.E.2d 649; 208 N.E.2d 533; 314 N.Y.S.2d 453; 417 S.W.2d 259; Annotation, 96 A.L.R.2d 973.
Messrs. Buist, Moore, Smythe McGee, of Charleston, for Appellant, in Reply.
August 14, 1973.
The plaintiff-wife sustained grievous injuries in the crash of an airplane piloted by the defendant-husband on its approach to the Charleston Municipal Airport. The flight originated in Florida, which is the domicile of the spouses. Under Florida law, one spouse is immune from suit by the other in such an action. The husband appeals from an order of the circuit court refusing to sustain a demurrer to the complaint based upon the husband's immunity under Florida law.
The rule of interspousal immunity from tort liability for personal injury has been abolished in this State. Pardue v. Pardue, 167 S.C. 129, 166 S.E. 101 (1932). The existence or nonexistence of such immunity relates to substantive law, rather than to procedure, and, under our law is to be determined by the lex loci delicti. Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (1964).
In Oshiek, the litigating spouses were domiciled in South Carolina, and the personal injuries for which the wife sued were inflicted in Georgia, where the rule of immunity between spouses prevailed. We were urged to depart from the rule of lex loci on the issue of immunity, and to hold the law of the domicile of the litigants (South Carolina) to be controlling. While recognizing strong support in the authorities for this departure from the general rule, we declined to follow the trend. The consequence was that we denied the South Carolina plaintiff the right to sue her husband, although she could have done so if the tort had originated here.
We are now urged to overrule Oshiek and formulate a rule which will bar this plaintiff's right to sue, although her injuries occurred, and right of action arose, in this non-immunity jurisdiction. We are not persuaded that this result would be in furtherance of justice.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur.