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holding that immunity did not automatically bar claims arising out of a murder of one spouse by the other who later committed suicide
Summary of this case from McDaniel v. McDanielOpinion
70856.
DECIDED SEPTEMBER 19, 1985.
Wrongful death. Glynn Superior Court. Before Judge Taylor.
Neal G. Gale, for appellant.
Amanda F. Williams, for appellees.
Sara Thagard, executrix of the estate of Jeanette Smith, and Nessie Rowell, the decedent's mother, brought this wrongful death action against James Smith, as executor of the estate of Virgil Smith. The trial court denied James Smith's motion to dismiss the complaint and we granted his application for interlocutory appeal.
Appellant contends the trial court erred by denying his motion to dismiss because appellees are barred from recovery under the doctrine of interspousal tort immunity found in OCGA § 19-3-8. The facts are undisputed that Virgil Smith mortally shot his wife, Jeanette Smith, and then himself. Jeanette Smith survived her husband by one day.
A suit for wrongful death by the representative of the estate or by the next of kin authorized to bring suit is derivative to the decedent's right of action. Williams v. Ray, 146 Ga. App. 333 (1) ( 246 S.E.2d 387) (1978); Bennett v. Bennett, 162 Ga. App. 311 (2) ( 290 S.E.2d 206) (1982). Therefore, appellees are barred from recovery only if Jeanette Smith herself would have been barred from bringing an action for personal injuries against Virgil Smith. Id. The Supreme Court in Robeson v. Intl. Indem. Co., 248 Ga. 306 ( 282 S.E.2d 896) (1981), in refusing to abrogate the doctrine of interspousal tort immunity on constitutional or policy grounds, pointed out the traditional policy reasons favoring retention of the rule including: (1) the belief that abrogation of interspousal tort immunity would foster marital disharmony and disunity, and (2) the fear of collusive or friendly lawsuits between the spouses. Id. at 308 (2). Recently, however, the Supreme Court has held the doctrine of interspousal tort immunity inapplicable where "there was, realistically speaking, no `marital harmony' to be protected by application of the interspousal immunity rule. Nor [was] there in the record any hint of collusion between the [husband and wife] or of intent to defraud an insurance company." Harris v. Harris, 252 Ga. 387, 388 (2) ( 313 S.E.2d 88) (1984).
In the instant case the record reveals that Virgil Smith and Jeanette Smith had been separated for "some time" before the shooting incident. After discharging himself from the hospital where he had been receiving treatment for alcohol abuse, Virgil Smith went to Florida. He planned to return to Brunswick, Georgia, where Jeanette Smith lived, and had rented an apartment there of his own. There is no evidence that either of the parties intended to live together or were contemplating a reconciliation. Also, there is no indication in the record of collusion between Virgil Smith and Jeanette Smith or of any intent to defraud an insurance company.
Where, as here, a motion to dismiss is supported by matters outside of the pleadings, it is treated as a motion for summary judgment. OCGA § 9-11-12 (c); Pooler v. Taylor, 173 Ga. App. 859, 860 (1) ( 328 S.E.2d 749) (1985). We find that the trial court properly denied appellant's motion to dismiss because questions of fact remain whether "marital harmony" existed between the decedents or whether there was any collusive activity between them which would justify application of the doctrine of interspousal tort immunity. See Harris, supra at 388 (2); see generally Thirsk v. Coldwell Banker c. Realtors, 172 Ga. App. 236, 238 (2) ( 322 S.E.2d 544) (1984).
Judgment affirmed. Birdsong, P. J., and Carley, J., concur.