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MCSWAIN v. MCSWAIN (01/04/66)

decided: January 4, 1966.

MCSWAIN, APPELLANT,
v.
MCSWAIN



Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1962, No. 458, in case of Dorothea E. McSwain v. Herbert L. McSwain.

COUNSEL

Jack E. Feinberg, with him John A. McMenamin, and Richter, Lord, Toll & Cavanaugh, for appellant.

Harry A. Short, Jr., with him Liebert, Harvey, Herting and Short, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result. Mr. Justice Musmanno dissents.

Author: Roberts

[ 420 Pa. Page 87]

In 1962, Herbert McSwain (appellee), a Pennsylvania domiciliary, then a member of the armed forces stationed on the West Coast, accompanied by his wife (appellant) and infant daughter, embarked on a cross-country trip to Pennsylvania. En route, the McSwain family was involved in an accident when their automobile, operated by appellee, ran off a Colorado highway. As a result of the mishap, the McSwain's infant daughter sustained fatal injuries and died on the following day.

Subsequently, Mrs. McSwain instituted suit in Pennsylvania under the Colorado Death Act,*fn1 naming her husband as defendant and alleging that the accident and death of the child were the result of his negligence. Appellee filed an answer to the complaint raising the marital relationship,*fn2 and moved for judgment on the pleadings. The motion was granted and judgment entered below. This appeal followed.

In a memorandum opinion subsequently filed, the court below based its decision to grant appellee's motion on the ground that although Colorado, the situs of the accident, did not bar intramarital tort actions,*fn3 the status of the parties as domiciliaries of Pennsylvania dictated that appellee's claim to immunity be determined by reference to the law of this Commonwealth. Such law, the court concluded, barred the instant action.

In so concluding, the trial court acted in reliance on the provisions of the Act of June 8, 1893, P. L. 344, § 3, as amended, Act of March 27, 1913, P. L. 14, § 1, 48 P.S. § 111. That Act, we have previously held, precludes the maintenance of personal injury suits between

[ 420 Pa. Page 88]

    spouses. See Daly v. Buterbaugh, 416 Pa. 523, 207 A.2d 412 (1964); Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). The issue of its applicability to intramarital suits predicated on wrongful death, however, is one of first impression in this jurisdiction. Thus, we are initially confronted with the effect of the Act of 1893 on the maintenance of an action between spouses for wrongful death. For if the Act does not operate to preclude such an action, no conflict exists between the laws of Colorado and Pennsylvania on appellant's right to pursue the present suit and the result reached below would be improper.

Prior to 1893, the capacity of spouses to sue inter se in this jurisdiction, with minor exceptions, was governed by decisional law. In accordance with the prevailing common law rule, actions grounded in tort were not permitted between spouses.*fn4 The Legislature, however, in enacting the Act of 1893, accorded the matter of inter-spousal immunity statutory treatment. The Act provides: "Hereafter a married woman may sue and be sued civilly, in all respects, and in any form of action . . . with the same effect . . . as an unmarried person; but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect and recover her separate property. . . ." Act of June 8, 1893, P. L. 344, § 3, as amended, Act of March 27, 1913, P. L. 14, § 1, 48 P.S. § 111. (Emphasis supplied.)

Although radically altering the capacity of married women to sue or be sued, the Act of 1893 did not by express terms alter the existing law with respect to suits between spouses. Divorce had long been permitted.*fn5 And even prior to 1893, equity ...


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