decided: January 4, 1966.
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.
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.
[ 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
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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 had entertained jurisdiction to protect married women from the
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unrestrained control and dominion of their separate property by their spouses.*fn6
Thus, whether the exemptive provisions of the Act of 1893, in authorizing suits between spouses in "proceeding[s] to protect and recover . . . separate property", was intended to permit access to legal as well as equitable remedies and thereby sanction unliquidated damage claims is far from clear.*fn7 However, we need not presently determine whether the Act may be construed to authorize unliquidated damage claims with respect to invasions of those property interests which the legislation sought to protect. Our consideration of the matter leads us to conclude that we do not here deal with such an interest.
Both under the laws of Colorado and Pennsylvania the measure of recovery for the wrongful death of a minor child is the pecuniary loss so occasioned.*fn8 Yet
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to permit the fact that redress is sought for what is denominated as a "pecuniary loss" to dictate the conclusion that an action for wrongful death is one to "recover . . . separate property" within the meaning of the Act of 1893 would be wholly inconsistent with our construction of that provision not to encompass personal injury suits between spouses. See Daly v. Buterbaugh, 416 Pa. 523, 207 A.2d 412 (1964); Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). To the extent that loss of past and future earnings are recoverable as an element of damages, every personal injury suit between spouses seeks to redress a pecuniary loss. Yet, although a married woman's earnings are her sole and separate property, free of her husband's control,*fn9 such actions are precluded by the statute. Daly v. Buterbaugh, supra, Meisel v. Little, supra.
In concluding that the mere fact that the action is predicated on wrongful death does not suffice to place the suit beyond the ambit of inter-spousal immunity, we are not unmindful that we deal in an area in which, in Mr. Justice Holmes' words, "a page of history is worth a volume of logic."*fn10 Yet neither history nor logic would commend a construction of the Act of 1893 which would permit recovery for the pecuniary loss occasioned by the wrongful death of a minor child, while denying recovery for a like loss when occasioned by the negligent injury of one spouse by the other.
Appellant, however, in urging reversal, contends that the Act of 1893 does not mandate the disposition below. She bases her contention on the ground that the Colorado Death Act, upon which her action is predicated,
[ 420 Pa. Page 91]
has been construed to confer a "property right", see Fish v. Liley, 120 Colo. 156, 208 P. 2d 930 (1949). Thus, she urges, the present suit falls within the exemptive provision of the Act.
We do not agree. Such characterization, however appropriate for purposes of Colorado law, is not here controlling. As to the construction of the exemptive provisions of the Act of 1893, this Court must remain the final arbiter.*fn11
Given the conflict between the law of Colorado, the situs of the accident, and the law of Pennsylvania on the effect of the marital relationship of the parties on appellant's right to prosecute the instant suit, we are thus confronted with the question of whether the circumstances
[ 420 Pa. Page 92]
of the case warranted the application of the Pennsylvania rule.
Although rendered prior to the decision in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), in which this Court rejected the rule of lex loci delicti, the trial court's decision to look beyond the situs of the accident to apply the Pennsylvania rule of inter-spousal immunity was not without precedent.*fn12 Even at the height of its acceptance, similar departures from the dictates of lex loci delicti were made by courts confronted with a conflict as to the effect of the marital relationship on the right of the parties to sue inter se. Following the precedent established in Emery v. Emery, 45 Cal. 2d 421, 289 P. 2d 218 (1955), an early decision departing from the usual resort to lex loci delicti,*fn13 a number of courts began to apply the law of the marital domicile to determine the issue.*fn14 By characterizing
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the effect of the marital relationship on the rights of the parties as an aspect of family or domestic relations, rather than tort law, many courts which otherwise adhered to the rule of lex loci delicti isolated the issue for treatment under a different choice of law rule.*fn15 In this manner, some of the rigidity which lex loci delicti introduced into the solution of choice of law problems was partially alleviated.
It was in part a recognition of the considerations which prompted such departures and their applicability to the entire spectrum of choice of law problems which led to the growing dissatisfaction with the rule of lex loci delicti. Time found the rule increasingly criticized as a mechanical methodology, predicated on the outmoded "vested rights" theory,*fn16 and emphasizing certainty and predictability at the expense of other, frequently
[ 420 Pa. Page 94]
more relevant considerations. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 12-13, 203 A.2d 796, 801 (1964). In a series of significant decisions,*fn17 a number of jurisdictions abandoned "vested rights" and its embodiment in the rule of lex loci delicti. Recognizing that the state of the situs of the "tort" may not necessarily have a sufficient interest in the issue in dispute to warrant the interjection of its policies into the litigation, these courts embarked upon a new approach to the solution of choice of law problems which replaced the a priori assumptions of lex loci delicti with an analysis of the interests of the various states factually involved in the matter in dispute.
In Griffith, supra, we sought to make clear that our decision to adopt this approach was dictated by an appreciation of our federal system, the frequently varying policies of its member states, and the increasing mobility of our society. With our citizens and institutions exposed to the varying policies of different states, frequently unequal in their claims to priority, the premise of lex loci delicti that a single spatial fact is an adequate guide to the solution of choice of law problems is no longer acceptable.
[ 420 Pa. Page 95]
Whether the policies of one state rather than another should be furthered in the event of conflict can only be determined within the matrix of specific litigation. What should be sought is an analysis of the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law. See Griffith Page 95} v. United Air Lines, Inc., 416 Pa. 1, 15, 21-22, 203 A.2d 796, 802, 805-06 (1964); cf. Bernkrant v. Fowler, 55 Cal. 2d 588, 360 P. 2d 906 (1961); Babcock v. Jackson, 12 N.Y. 2d 473, 191 N.E. 2d 279, 240 N.Y.S. 2d 743 (1963).
Under the circumstances of the instant case, such analysis leads us to conclude that the court below did not err in the application of Pennsylvania law to preclude the claim here sought to be asserted.
We are led to this conclusion by an examination of the respective interests of Colorado and Pennsylvania in the effect to be given the marital relationship on appellant's right to proceed against her husband. Pennsylvania, by its rule prohibiting such suits, has expressed an interest in foreclosing litigation as an avenue for engendering friction between spouses. See, e.g., Johnson v. Peoples First National Bank & Trust Co., 394 Pa. 116, 145 A.2d 716 (1958); Parks v. Parks, 390 Pa. 287, 135 A.2d 65 (1957); Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 Atl. 663 (1936).*fn18 Colorado, on the other hand, by its rule permitting such suits, has expressed an interest in providing redress for the injured spouse even if obtained at the expense of marital harmony.
Presumably, Colorado has made its determination to permit such suits with its own domiciliaries primarily in mind. In the instant case, however, we deal with a suit between Pennsylvania domiciliaries. Any effect which this litigation may have on the marital relations of the parties is a matter of concern primarily to Pennsylvania, the state which has the basic "responsibility
[ 420 Pa. Page 96]
for establishing and regulating the incidents of the . . . relationship" of the parties. Emery v. Emery, 45 Cal. 2d 421, 428, 289 P. 2d 218, 223 (1955). And, although Colorado, as the state of both the conduct and injury could assert an interest in this litigation in order to further the deterrence of negligent conduct on its highways and to secure, in the event of insurance, a fund for the payment of local creditors,*fn19 those interests would not be disserved by the application of the Pennsylvania rule of inter-spousal immunity in the instant case.
Unlike resort to a standard of care less rigorous than that demanded by Colorado of those who use its highways, resort to the law of Pennsylvania to bar the instant suit would have no adverse effect on any deterrence sought by Colorado through the use of tort liability. Since negligent operation of a motor vehicle invariably involves some hazard to persons beyond the family relationship, potential liability still remains to deter unreasonable conduct on the part of those able to insulate themselves from intrafamily suit.*fn20
Moreover, with regard to Colorado's interest in securing a fund for the payment of local medical creditors, that interest would not be adversely affected under the facts of the instant case. Since the accident resulted in near immediate death, significant debts are not likely to have been incurred in Colorado.
Our conclusion to look to the law of Pennsylvania on the issue of intramarital immunity rests, not upon
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a fixed and invariable rule of characterization, such as would dictate resort to the law of the marital domicile in all such cases, but upon a determination that the circumstances of the instant case do not warrant the interjection of Colorado law into what is essentially a Pennsylvania family controversy. The mere fact that the accident occurred in Colorado, absent the expression of a significant interest on the part of that state, does not justify our refusal to give effect to the public policy of this Commonwealth, as embodied in the Act of 1893, that suits of the instant sort not be permitted. The desirability or wisdom of that policy has, since the enactment of that Act, been a matter of legislative determination. Our conclusion here merely recognizes and gives effect to that legislative mandate.