1127, 253 S.E.2d
Court of Virginia.
brought action against driver-husband
arising out of automobile accident which occurred in Tennessee. The Circuit Court, Scott County, S. W. Coleman, III, J., sustained husband's
dismiss, and wife appealed. The Supreme Court, Compton, J., held that
accident occurred in Tennessee, Tennessee law applied, and thus wife was precluded from
suit against husband, even though parties were domiciled in Virginia both at time of accident and when suit was
In resolving conflicts of laws, the settled
rule in Virginia is that the substantive rights of the parties
multistate tort action are governed by the law of the place of the
wrong. Maryland v. Coard, 175 Va. 571, 580-81, 9 S.E.2d 454, 458 (1940). Today in
an intra-family suit,
we are invited to reject that lex loci delicti principle and to follow
so-called "modern trend" by applying the law of the domicile of the
parties. We decline the invitation and reaffirm "the place of the
Glenna Jennings McMillan was injured on December
26, 1975, while riding in
an automobile which collided with a
bridge in Hawkins
County, Tennessee. The vehicle was operated by her husband,
Allen McMillan. Subsequently, plaintiff instituted this suit in the
charging that defendant negligently caused the accident and her
parties were Virginia both at the time of the accident and when this
In Tennessee, no right of action arises and no suit may be
for a tort committed during coverture by one spouse against the other.
v. Parker, 222 Tenn. 104, 107, 432 S.W.2d 882, 883 (1968). See
Childress, 569 S.W.2d 816, 817 (Tenn.1978). In Virginia, this
of interspousal immunity as it affects actions for personal injuries
from motor vehicle accidents was abolished in Surratt v. Thompson, 212
183 S.E.2d 200 (1971), and such actions may now be maintained in this
present case, the trial court, in an August 1977
order from which plaintiff appeals, sustained the husband's motion to
The court below, ruling that Tennessee law applied, decided that it was bound to
established Virginia rule that the law of the situs of the tort
substantive rights of the parties.
The plaintiff contends on appeal
that Virginia should abandon the orthodox place-of-the-wrong
rule in a
case such as this and embrace a "modern" rule, which has been
followed in a number of states and in recent years has been adopted by
American Law Institute. See Restatement (Second) of Conflicts of Laws
& 169 (1971) (hereinafter cited as Restatement ); Annot., 29
622-52 (1970); Annot., 96 A.L.R.2d 973, 987-96 (1964). The advocates of
"modern" approach express dissatisfaction with the mechanical
application of the place-of-the-wrong rule and impose a duty on the
to make an analytical examination of the facts of each case to
determine what law
should govern the parties' substantive rights. 29 A.L.R.3d at 622-23.
definitive statement of this "modern" view can be made because of the
many variants resulting from this case-by-case approach, the present
Restatement rule is illustrative of the concept. This "center of
gravity" or "grouping of contacts" theory provides:
(1) The rights and liabilities of
with respect to an issue in tort are determined by the local law of the
which, with respect to that issue, has the most significant
relationship to the
occurrence and the parties under the principles stated in s 6 (setting
certain basic choice-of-law maxims).
(2) Contacts to be taken into
applying the principles of s 6 to determine the law applicable to an
(a) the place where the injury
(b) the place where the conduct
(c) the domicil, residence,
of incorporation and place of business of the parties, and
(d) the place where the
relationship, if any,
between the parties is centered.
These contacts are to be evaluated
to their relative importance with respect to the particular issue.
Restatement, supra, s 145.
Urging us to adopt this concept,
argues that disabilities to sue and immunities from suit stemming from
family relationship are more appropriately determined by reference to
of the state of the family domicile. She contends that "Virginia is clearly the state with the prevailing
interest in this
action, and therefore should apply its own law with respect to
immunity." We disagree.
recognize that there has been an increase in the
number of jurisdictions which have adopted the contended-for "most
significant relationship" test in personal injury actions. We also note
that in the cases of this type involving intra-family disputes, the
employing such theory usually apply the substantive tort law of the
the domicile. See Restatement, supra, s 169. But after consideration of
as compared to our place-of-the-wrong rule, we have concluded to adhere
court's former position on the question.
Even though the "center of gravity"
formula sets up a more flexible rule than the lex loci delicti concept,
components of the formula can be viewed differently from case to case
creating uncertainty and confusion in application of the theory. This
inconsistency can be illustrated by comparing the leading torts case
a theory, Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191
(1963), with another New York case, Kell v. Henderson, 47 Misc.2d 992,
N.Y.S.2d 647 (1965), Aff'd., 26 App.Div.2d 595, 270 N.Y.S.2d 552
(1966). See R.
Leflar, American Conflicts Law s 91, at 183, 184 (3rd ed. 1977).
In Babcock, an automobile guest sued
in New York for injuries sustained in Ontario caused by the defendant's ordinary negligence.
Under New York law, the guest could recover for injuries
caused by the
host's lack of ordinary care, but the Ontario guest statute barred such a recovery. The court
its adherence to the place-of-the-wrong rule and permitted recovery. It
that, on the guest-host issue, New York had the "dominant contacts" because the parties
were domiciled in New York, were on a trip
which began in New
York and was
intended to end in New York, and were travelling in a vehicle registered
garaged in New
court noted that Ontario had no connection with the cause of action
except that the
accident happened to take place there.
Kell presented the converse of
the question was also whether the New York ordinary negligence rule applied or whether the
Ontario guest statute controlled. The guest was injured
host's ordinary negligence while the parties, both residents of Ontario, were on a trip in New York which was to begin and end in Ontario. The New York court purported
to follow Babcock but held that Ontario law would not apply. As Professor Leflar notes,
case did not reach the New York Court of Appeals and "therefore was not
conclusive, it indicates the manipulative possibilities that inhere in
Babcock approach." Leflar, Supra, at 184.
Thus, we do not think that the
predictability, and ease of application of the Virginia rule should be abandoned in exchange for a
is so susceptible to inconstancy, particularly when, as here, the issue
involves the substantive existence of a cause of action in tort.
For the reasons assigned, we find no
the action of the trial court. Consequently, the judgment in favor of
defendant will be