Wackwitz v. Roy , 244 Va. 60 ( 1992 )

JUSTICE LACY,

dissenting.

The majority clearly and carefully defines the common law crime of suicide and holds that it has not been abrogated in this jurisdiction. That holding, however, fails to address the issue which Marie Wackwitz, as administrator of Bryon Wackwitz’s estate, presented to this Court for determination.

The trial court, in its opinion letter, held that:

Suicide is no longer punishable as a crime in Virginia, but it is still considered an immoral act. The Virginia Supreme Court has concluded that “the act of taking one’s own life is ‘subversive of sound morality.’ ” Plunkett v. Supreme Conclave, 105 Va. 643[, 650, 55 S.E. 9, 11] (1906). This is still good law in Virginia, and, when read together with [Hill v. Nicodemus, 755 F. Supp. 692 (W.D. Va. 1991)], indicates that Mr. Wackwitz’s suicide precludes recovery by his estate.

This holding was specifically incorporated into the final order dismissing the lawsuit. In appealing the decision, Marie Wackwitz identified a sole assignment of error:

The trial court erred in dismissing the action on the pleadings in a wrongful death/medical malpractice action where it was alleged that the Plaintiff’s Decedent committed suicide as a result of the malpractice of the Defendants in the treatment of Decedent’s mental illness as a matter of law, because suicide is an immoral act. (Emphasis added.)

This assignment of error presents only one question, viz, whether the trial court erred in dismissing the plaintiffs motion for judgment on the ground that suicide constitutes an immoral act. This Court does not have before it, and should not decide, the question whether suicide constitutes an illegal act. I think this Court should confront the morality issue, decide that suicide does not constitute an immoral act, and furthermore, that a motion for judgment cannot be dismissed solely because it seeks recovery for injuries resulting from an act a court considers immoral. Unfortunately, by failing to follow the Rules of Court, Rule 5:17(c), restricting consideration to only the assignments of error presented, the Court’s action today leaves an important question unresolved.

Accordingly, I would reverse the judgment of the trial court, reinstate the plaintiff’s motion for judgment, and remand the case for trial on the merits.