Maestas v. Overton

OPINION HENDLEY, Judge. Husband-pilot and wife-passenger were killed in an airplane crash. The administratrix of wife sued the administrator of husband under the Wrongful Death Act, § 22-20-1, N.M.S.A.1953, on the grounds that husband “ * * * negligently or intentionally or through heedless or reckless disregard * * * ” of the safety of his wife caused her death. The trial court granted defendant summary judgment. The issue is whether the common law doctrine barring interspousal suits applies to a wrongful death action brought pursuant to § 22-20-1, supra. New Mexico recognizes interspousal immunity for nonintentional personal injury actions. Romero v. Romero, 58 N.M. 201, 269 P.2d 748 (1954); see Rodgers v. Galindo, 68 N.M. 215, 360 P.2d 400 (1961). However, such is not the case where intentional torts are involved. Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App.1973), cert, denied, 84 N.M. 592, 506 P.2d 336 (1973). Section 22-20-1, supra, states: “Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or, neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.” A literal reading of the statute gives the personal representative a cause of action, only if the decedent would have had one, absent death. Thus, nonintentional tort actions would be barred. However, intentional tort claims are not barred. We affirm the order granting summary judgment as to the nonintentional claims in the complaint. We reverse as to the claim of an intentional tort and remand to the trial court for further proceedings. It is so ordered. LOPEZ, J., concurs. SUTIN, J., dissents.