100 So. 591 | Miss. | 1924
Lead Opinion
delivered the opinion of the court.
Appellant, Mrs. Viola Austin, sued the appellee, her husband, H. L. Austin, in the circuit court of Hinds county, for injuries alleged to have been received by her by reason of the negligent and reckless manner in which her said husband operated his automobile in which she was riding with him as his guest. The negligence consisted of his driving the car at an excessive rate of speed, causing it to overturn and injure appellant.
Appellee filed a special plea to appellant’s declaration, sotting up1 as a defense to the cause the fact that appellant and appellee at the time of said injury, and continuously thereafter1 up to and including the time of the trial of the cause, were man and wife and living together as such. To this special plea the appellant demurred on the ground that it presented no defense under the law, which demurrer the trial court overruled, appellant declining leave to plead further, a final judgment was entered dismissing her cause, from which she prosecutes this appeal. The sole question, therefore, in the case is whether under the laws of this state a husband is liable to his wife for an injury suffered by her as the result of a tort committed by him on her person.
Appellant admits that there was no such liability at common law, but contends that there is liability in this state under section 94 of our Constitution and sections 2517 and 2518, Code of 1906 (2051 and 2052, Hemingway’s Code), emancipating women from the common-law1 disability of coverture. Those provisions of the Constitution
Sec. 94. ‘ ‘ The legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or their power to contract in reference thereto. Married women are hereby fully emancipated from all disability on account of coverture. But this shall not prevent the legislature from regelating contracts between husband and wife; nor shall the legislature be prevented from regulating the sale of homesteads.”
2517 (2051) “Married women are fully emancipated from all disability on account of coverture; and the' common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy and to make any contract in reference to it, and to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married. ’ ’
2518 (2052) “Husband and wife may sue each other.”
Appellee contends and the trial court so held, that said constitutional and statutory provisions made no such change in the common law; that neither expressly nor by implication do they give the wife or the husband a right of action against the other for a. personal tort.
In order to determine this question, it should be kept in mind of what the common-law disabilities' of coverture consisted. At common law a husband and wife were regarded as one person. By marriage he became the owner of all her tangible personal property as fully as if he had
The first clause of section 94 of the Constitution prohibits the legislature from creating, any distinction between “the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds or their power to contract in reference thereto.” It is apparent at once that this broad language is not confined to married men and women, but the inhibition extends to all men and women whether married or single. The next clause of section 94 of the Constitution is in this language: ‘ ‘ Married women are hereby fully emancipated from all disability on account of coverture.” The balance of the section could have no bearing on the question involved in this case. The language of section 2517, Code of 1906 (20’51 Hemingway’s Code, to the first semicolon, is an exact re-script of the second clause of section 94 of the Constitution quoted above, following which the section undertakes
Our Constitution and statutes on the subject were enacted for the purpose of striking down the inequalities existing between husband and wife. The intent was to put the wife on the exact equality with her husband — to emancipate her from the common-law slavery to her husband. It was not the purpose of the makers of our Constitution nor of the legislature to entirely destroy the unity of man and wife with all the incidents flowing therefrom. One of the disabilities of coverture was that neither could testify against the other. It took a statute specifically removing that disability. Section 1916:, Code 1906; Hemingway’s Code, section 1576. Equality between them as to the acquisition, ownership, and disposition of property, and the
If appellant’s contention were sound, we would have the novel situation of the wife having a cause of action against her husband for a personal tort, while the husband would have no- such right against his wife; for there is nothing either in our Constitution or statutes which gives any such right to the husband.
The divorce courts and the criminal courts furnish ample redress to the husband and wife for such wrongs as this. The husband and wife in these times have enough grievances for the courts and scandal mongers without by a strained construction another being added by the courts. If another is to be added, it must be done by the legislature, not by the courts in the face of the great weight of authority both in numbers and reasoning. It would be hard to conceive of what good purpose would be accomplished ’by such suits'. For1 illustration: The husband and wife are living together. She recovers judgment against him for an assault and battery and collects the judgment and puts the money in bank to her credit. They continue to live together as man and wife, if the lawsuit has not separated them. Result: The money would still be available for family purposes? except what had been expended in court costs and lawyers’ fees. It would be like the husband taking money out of one of his pockets and putting it back in another. Of course, the same would be true of a suit and recovery by the husband against the wife on a like cause. Secrecy will cure many troubles of the home, while publicity will only add fuel'to the flames.
Many of the authorities holding this view construed statutes substantially like our Constitution and statutes
The courts of Alabama., Arkansas, Connecticut, New Hampshire, and Oklahoma hold to the contrary. In some of those states, however, the statutes construed were materially different in substance, from our Constitution and statutes on the subject.
Affirmed.
Dissenting Opinion
(dissenting).
I cannot bring myself to consent to a decision of first impression in this state where the effect of the decision is to deny the enforcement of a right or the redress of a wrong, using these terms in a legal sense, where a person is su-i juris. The principle that for every wrong there is a remedy is so vital and fundamental that I cannot concur in a view that there is a legal wrong for which there is no redress in the courts or a legal right which cannot be enforced. I think it the duty of a judge, when a case of first impréssion arises, to go to the first prin
Section 94 of the state Constitution reads as follows: “ The legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or their power to contract in reference thereto. Married women are hereby fully emancipated from all disability on-account of coverture. But this shall not prevent the legislature from regulating contracts between husband and wife; nor shall the legislature be prevented from regulating the sale of homesteads.”
Section 24 of the state Constitution reads as follows: “All courts shall be open; and every person for any injury done him in his lands, g’oods, person, or,reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, 1 or delay.”
Section 2051, Hemingway’s Code (2517, Code of 1906), reads as follows:
“Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effect on
Section 2052, Hemingway’s Code (2518, Code of 1906), reads as follows: “Husband and wife may sue each other. ’ ’
Section 94 of the Constitution, above set out, provides in its first sentence that there shall be no distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or their power to contract in reference thereto. This section of the Constitution puts men and women upon an equality generally as to ownership, use, and disposition of property. The second sentence provides that ‘ ‘ married women are hereby fully emancipated from all disability on account of coverture,” and is followed by this: “But this shall not prevent the legislature from regulating contracts between husband and wife; nor shall the legislature be prevented from regulating the sale of homesteads.” The latter clause reserves the only right to the legislature to impose any liability on account of coverture. 'The rule is well settled in this state that where exceptions are enumerated in the Constitution, things not reserved are forbidden to the legislature. Henry v. State, 87 Miss 411, 39 So. 690, 6 Ann. Cas. 715. It then becomes important to determine with precision what were the disabilities of coverture from which the Constitution fully emancipated women.
“The Fiction of Unity and the Consequences thereof. ■ — At common law one of the fictions most often referred to was, that by marriage the husband and wife became one legal person. The woman by marriage lost all legal identity, she became civiliter mortua; she was covered by or merged in her husband; she was called a ‘feme covert,’ and her condition was called ‘coverture.’ . . . This fiction of legal unity affected at common law all the reciprocal capacities of husband and wife, and many' of their mutual rights and obligations; and by assuming that it was the wife whose identity was [Lost gave rise to all the disabilities of married women. To illustrate: Husband and wife being one person could not contract together or wrong each other civilly or criminally, or sue each other,; they could not testify for or against each other; and a sale by a, trustee to his wife was like a sale to himself; in some cases one could act for the other. The wife being merged in the husband took his name. If property vested in them with a third person they took one-half, not two-thirds. If real estate vested in them they took one estate,' and became tenants by entireties.
“These various matters will now be separately discussed.
“By the common law, contracts between husband and wife are absolutely void for want of parties and the wife’s power to consent. A mere personal executory contract between them is unqualifiedly void, and a transfer from one to the other can be affected only through a third party. A wife can execute a power in favor of her husband, and can deal with him in her representative capacities, but the validity of any other contract between them must be based either upon the doctrines of equity or upon the provisions of some statute.”
This court has on two occasions held that the act of 1880 completely abolished coverture. In Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317, at page 229 of the official' report, page 318 of the Southern Eeporter, the court said:
“Since the adoption of the Code of 1880; the Constitution of 1890, and the Code of 1892, effecting the complete emancipation of married women, and authorizing every character of suit between husband and wife, the validity of a contract between them cannot be questioned in judicial tribunals of this state; and such contracts may be enforced by one against the other. McGregor v. Mc
In Southworth v. Brownlow, 84 Miss. 405, 36 So. 522, the court held that section 2323 of the Code of 1871, providing that no act of the husband should affect the wife’s interest in land, ceased to be operative when married women were wholly emancipated from all disability on account of coverture. Code 1880, section 1167; Constitution 1890, section 94; Code 1892, section 2289. And it was held in that case that the statute of limitation would run against the wife during the life ’of the husband. The court said:
“The proof clearly shows that appellees have been in open, notorious, and uninterrupted possession of the dand since the attempted sale of it to them by W. Berry Prince, the ancestor of appellant, in 1880: Since the 1st of November, 1880, when the Bevised Code of 1880 went into effect, abolishing coverture, with all its incidents and disabilities, section 2323, Code 1871, ceased to operate. . . . Since coverture prevented, at common law, a married woman from suing, therefore it was not right that airy act of the husband should operate a ‘disseizin of the wife as to any lands to which she had title, or in any way prejudice qr affect her rights thereto. Since, therefore, the whole object of the said section 2323, Code 1871, was to prevent the wife from being prejudiced because of her coverture, it follows that, when coverture was wholly abolished, there was no longer any need for said statute. When the system of coverture fell, the statute (section 2323, Code 1871) fell with it.”
Section 2051, Hemingway’s Code (section 2517, Code of 1906), above set out, provides that “married women are fully emancipated from all disability on account of coverture.” Therefore the incidents of coverture which
When we come to section 24.of the Constitution, above set out, we find that the Constitution itself gives every person for an injury done him in his lands, goods, person, or reputation, a remedy by due course of law. This
When the Constitution and legislature emancipated women from the disability of coverture, they necessarily made her a legal person, and made her sui juris, capable of attending to her own affairs to the same extent that she could if she had never been married at all. This section of the Constitution is the law. It has all the force of law. Every person who is sui juris has the right under the law to a redress for a personal injhry. There can be no kind of doubt about the fact that the wife is a person. The old fiction of the unity of person of the husband and wife has been completely abrogated as shown by the expressions of this court above. Hereafter there can be no distinction. This section does not merely place the wife on an equality with her husband, but it places her on an equality with a single woman, and gives her all the rights that she would have had under the same facts if she were single instead of married.
We have no statute in this state expressly conferring upon ex-slaves the right to sue their former masters, but such right follows as a matter of course, when the slave became a legal person, capable of exercising the same rights as other citizens exercise. The right followed the change of status as the night follows the day. The legislature, of course, could have kept women shackled, subject to the tyranny and fury of their husbands, had it seen fit and proper to do so — had not the Constitutional Convention acted. We are constantly passing upon cases and awarding redress for legal injuries where there is no statute, the cause of action arising from an invasion of a. personal right or the infliction of a legal injury.
In the recent case of Gross v. State, 100 So. 177, decided May 19,1924, this court, speaking through the' judge who wrote the majority opinion here, held that the husband had no right under the law of this state to inflict corporal punishment on his wife even for the purpose of correction when done in moderation, as was likewise held in Harris v. State, 71 Miss. 462, 14 So. 266, and Turner v. State, 60 Miss. 351, 45 Am. Rep. 412. It is therefore unlawful and a legal wrong for the husband to inflict corporal punishment upon the wife, and by reason of his perpetrated wrong upon the wife a cause of action would clearly arise in favor of the wife, if she were not married. The statutes above cited, in the plainest possible language, give the right.to the wife to sue as though she were not married.
In the ease of Fiedler v. Fiedler, 42 Okl. 124, 140 Pac. 1022, 52 L. R. A. (N. S.) 189, the supreme court of Oklahoma, in an opinion holding liability against the husband in favor of the wife, referred to the Bill of Rights in the Constitution of that state, which read as follows:
“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without- sale, denial, delay, or prejudice” — as beiug efficacious in conferring a legal right upon the wife to sue for a tort inflicted by her husband. In that case the suit was for a gunshot wound maliciously inflicted by the husband during coverture. A demurrer to the declaration was sustained in the court below holding that no right of action resulted from the wrong because of the marriage relations existing at the time the wound was inflicted. At page 190' of the L. R. A. report, the court said:
“Plaintiff demurred to the second and third paragraphs of the answer for the reason that they failed to
“Nor are we able to perceive wherein the sensitive nerves of society are worse jarred by such a proceeding than it would be to allow the parties to go into a divorce court and lay bare every act of their marriage relation in order to obtain alimony. But, aside from the philosophy on the one side or the other, it appears to us that the plain English language of our Constitution and statutes should enable us to determine what the rights of a married woman are intended to be in such cases. Section 6, art. 2, of the Constitution of Oklahoma, provides: ‘The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. ’ From the language of this section of the Bill of Bights, it appears to us that the framers of our Constitution clearly intended to open the courts of justice to every person, no matter whom, for redress of wrongs and for reparation for injuries.
“In furtherance of such intention, our legislature, realizing the harsh rules of the common law in such matters, has provided, section 3363, Bev. Laws 1910: ‘Woman shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injuries sustained to her reputation, person, property, character, or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone. . . . ’
“Section 2845, Bev. Laws 1910',' provides: ‘‘Any person who suffers detriment from the unlawful act or omission of another, may recover from the person in
“Section 2846, Id., defines what is meant by a detriment as follows: ‘Detriment is a loss or harm suffered in person or property.’
“The foregoing statutes, it seems to us, are sufficiently clear to define the rights of persons without discrimination or distinction, and to enable all persons to know just what their rights are, and the courts to know just how to adjudicate them. But our legislature, possibly in contemplation of such contingencies, and in order to avoid the reading into the statute a meaning not intended, or at least in further emphasis of its intention, has made other provisions. Section 2914, Rev. [Laws 1910, reads: ‘Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears, and except also that the words hereinafter explained are to be understood as. thus explained. ’
“And in order to make itself still more clear as to its intentions, the legislature in section 2948, Id., said: ‘The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be. liberally construed with a view to effect their objects and to promote justice. ’
“Construing these statutes and constitutional provisions as a whole, we think it is clearly manifest that the legislative intent has been an endeavor to shake off the shackles of the common-law rules as to the rights of married women, and to clearly define such rights. Besides, many of the more modern decisions on this question either offer an apology or give way to expressions of regret that the earlier decisions of their respective jurisdictions had announced a doctrine in which they did not fully concur, but by which they felt themselves bound.”
In the case of Brown v. Brown, 88 Conn. 42, 89 Atl. 889, 52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70, the supreme court of Connecticut under chapter 114, Acts of 1877 be
“By these two cases it is established that a wife, married since April 20’, 1877, may contract with her husband or other person, and may in her own name sue her husband or such other person for breach of such contract; also that she has a cause of action upon which she may recover in a suit brought in her own name for personal injuries wrongfully inflicted upon her by others than.her husband. If a cause of action in her favor arises from the wrongful infliction of such injuries upon her by another, why does not the wrongful infliction of such injuries by her husband now give her a cause of action against him? If she may sue him for a broken promise, why may she not sue him for a broken arm? The defendant’s answer is that a wise public policy forbids it, that no right of action accrued to her from such a tort prior to- .the statute of 1877, that none is expressly given her by that statute, and that none can be implied; and that this is the holding of courts in other jurisdictions in cases which have arisen under similar statutes.
“It is true that courts in some of the states have held that statutes more or less similar to the one here in question give a married woman no right of action -against her husband for-a tort. They find in the statutes construed no legislative intent to- change the legal status of husband and wife as regards the legal identity of the two, but simply an intent to- ameliorate the condition of the wife by permitting her to retain and deal with her own property, and to contract with, and sue 'and be sued by, others, than her husband. These courts, generally hold that unless there is an express provision giving her the right to sue her husband, she has no action ag'ainst him upon contract or for tort. It is unnecessary to review the individual cases.
“In the fact that the wife has a cause of action against her husband for wrongful injuries to her person or property committed by him, we see nothing which is injurious to the public, or against the public good, or against good morals. This is the usual test for determining whether a statute or a contract is against public policy. When a wife is allowed to possess and deal with her own property and carry oh business in her own name like a feme sole, she ought to have the same right to contract and enforce her contracts, and the same remedies for injuries to her person and property, which others have, and to be liable upon her contracts and for her torts the same as others are. This is the position in which she now stands. The danger that the domestic tranquillity may be distrubed if husband and wife have rights of action against each other for torts, and that the courts will be filled with actions brought by them against each other for assault, slander and libel, as suggested in some of the cases cited in behalf of the defendant, we think is not serious. So long as there remains to the parties domestic tranquillity, while
The New Hampshire court in the case of Gilman v. Gilman, 78 N. H. 4, 95 Atl. 657, L. R. A. 1916B, at page 907, held that a woman may sue her husband for an assault under the statute permitting her to sue and be sued in all matters of law and equity as if she were not married. The court in the latter part of the opinion said:
"Therefore the test to determine whether the plaintiff can maintain this action is to inquire whether she could maintain it if she were unmarried, and not to inquire who the defendant is, nor whether she is seeking to enforce a property right. In a word: If a. married woman is either injured or damaged by another’s illegal act, the statute gives her a remedy even though that other is her husband;
In Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A. L. R. 1031, the Alabama court held that a woman may sue her husband, for assault under statutes abrogating the fiction of legial identity and permitting her to sue alone for injuries to her person. In referring' to the contention of counsel that the remedy to the wife .was by criminal prosecution or an action for divorce and alimony, the court said:
“The wife’s, remedies, by a criminal prosecution or an action for divorce and alimony, which in some jurisdictions are allowed to stand as her adequate remedies for wrongs of the sort described in this complaint, so far from being adequate remedies, appear to us to be illusory and inadequate, while, as for the policy which would avoid the public airing of family troubles, we see no reason why it should weigh more heavily against this action than against those which the courts universally allow.”
In the case of Prosser v. Prosser, 114 S. C. 45, 102 S. E. 787, the South Carolina court held that the wife could maintain an action against her husband for willfully beating her under the provisons of the statutes of that state. In that case the court below also held that the complaint constituted no cause of action and a demurrer was sustained. Upon appeal the supreme court said:
“The gravamen of the demurrer is: (1) That by the common law the wife had no such right, (2) that the legislature alone can give her such rig'ht, and (3) that the legislature has not done so. The first and second postulates are pitifully true. The third postulate is not true, and we come immediately to the consideration of that issue.
“Neither the Constitution of 1868, nor that of 1895, nor the statutes enacted, pursuant thereto, by so many words give to a married woman power ‘to sue.’ The act of 1891 (201 St. at Large, p. 1121; section 3761, Code of Laws)
“The Constitution of 1868 merely conferred on the wife the power to hold property; that of 1895 added to so much the power to contract. The act of 1870- (14 St. at Large, p. 325), passed ‘to carry into effect the provisions of the Constitution,’ did little more than enact the provisions of the Constitution of 1868 and added the power to contract.
“But the Code of Procedure enacted in 1870 provides comprehensive ‘remedies’-for the redress of wrongs.
“At the common law it •was, of course, an actionable wrong for a stranger to beat a married woman. If the beating'; was lby her husband the wrong was none the less, for the act was at least a violation of the criminal law. But the courts denied a civil action to- the wife upon the theory that she could not sue herself, and the husband was part of herself. The judges pointed her for a remedy to the divorce courts and the criminal courts. The anomaly was thus presented of incarcerating’ a wife beater if he should beat his wife-self, but loosing- his purse if he should commit the identical act. For the beating* she suffered the wrong, but she had not the remedy by civil action.
“The -act of 1870 entitled the Code of Procedure gave her the remed3r. That statute defines an action as a proceeding, amongst other1 things, to redress á private wrong (section 114); and it provides that actions shall be prosecuted by the real party in interest (section 160); and it provides., by necessary implication, that a married woman may sue (section 163), and that in two instances she may sue alone, (1) when the action concerns her separate property, and (2.) when the action is between herself and her husband. The necessary implication is that the second instance is not included in the first instance; that is to say, she may sue her husband in circumstances not concerning’ her ‘separate’-property.
“The necessary inference is that by a liberal and not by a strict construction the Code of Procedure was- enacted to give to a wife every remedy against her husband for any wrong she mig¡ht suffer at his hands. More than this, a wife has a right in her person; and a suit for a wrong to her person is a thing in action; and a thing in action is property, and her property. Section 483.
“This action is therefore maintainable under our own case of Messervy v. Messervy, 82 S. G. 559, 64 S. E. 753.
“The order of the’ circuit court is reversed, and the cause is remanded there for trial.”
In the case-of Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772, the Arkansas- court- upheld the right of action in favor of the wife against the husband for personal injuries, saying:
“Under Acts 1915-, p-. 684,'removing the disabilities- of married women and providing that a, married woman in law and equity shall enjoy all rights and be subjected to all laws as though she were a feme sole, a married woman may maintain -an action against her husband either for contract or tort, and her representatives may sue her husband for wrongful death under Kirby’s Dig., section 6289.”
The decision in this case is a very interesting one and reviews many of the cases referred to in the majority opinion in this case and in the briefs of appellee. It was argued in that case that the language of the statute did not confer a right of action on a married woman against her husband, because a feme sole or similar one would have no husband to sue and therefore that, it was not intended to give her1 any greater rig’ht than she would have if she were a feme sole. The court said:
“Wé scarcely think that the lawmakers had that in mind; for they were dealing entirely with enlarged rights
We are convinced, therefore, that this was the intention of the lawmakers, and it would be doing violence to their manifest purpose to further apply the rule of restriction on account of the statute being in derogation of the common law, and to hold that a. married woman has no right of action against her husband. .We have, as has been so often said by this and other courts, nothing to do with the the policy of the law; for that is controlled entirely by the legislative branch of government. It cannot be said that there is any such fixed policy on the subject that the legislature has not the power to change.”
In the case of Crowell v. Crowell, 180 N. C. 516, 105 S. E. 206, the North Carolina court liad before it a very aggravated ease where a wife sued her husband for damages for afflicting her with a venereal disease, and the court held that this was a tort for which the wife could recover. The -action was founded on the Revisal 1905, section 408 (C. S. section 454), and Laws 1913, chapter 1.3. At page 207 of the S. E. Reporter (180 N. C. 516, 518) the court said:
"There can be no question in this day that if the defendant had violently assaulted his wife and caused serious bodily injury to her person, and humiliation to her, she could maintain an action for damages against him. Even under the obsolete ruling of the courts (for it was never statutory) that a husband could chastise his wife with impunity, there- was an exception that he was liable if he caused her serious bodily harm or permanent injury.”
As to the suggestion that the remedy was a criminal prosecution or a divorce proceeding, the court said:
"As to the suggestion that the defendant could be indicted, that, was a matter for the state which has not thus proceeded, and a conviction would be no reparation to
In the case of Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 21 Ann. Cas. 921, which has been referred to in the majority opinion and frequently quoted as sustaining a doctrine against the right of a woman to sue her husband for tort is a case that arises under law of the District of Columbia, which authorized married women to sue separately for the recovery, security, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried. The majority opinion in that case does hold that this act does not confer a right of action against the husband for tort committed during married relation giv,ing its reason for said holding, that the statute had not removed all of the disabilities of (¡overture, and predicating his decision upon common law.
The majority opinion in that case says:
Justice Iiarlan, one of the brightest stars in the judicial firmament, during the long period which he served upon the United States Supreme Bench, dissented from this holding in a very able opinion concurred in by Jusdice Holmes and Justice Hughes. In the course of this opinion he said:
“The court below held that these provisions did not authorize an action for tort committed by the husband against-the wife.
“In my opinion these statutory provisions, properly construed, embrace such a case as the present one. If the words used by Congress lead to such a result, and if, as suggested, that result be undesirable on grounds of public policy, it is not within the functions of the court to ward off the dangers feared or the evils threatened simply by a judicial construction that will defeat the plainly expressed will of the legislative department. With the mere policy, expediency or justice of legislation
“I repeat that with the policy, wisdom or justice of the legislation in question this court can have no rightful concern. It must take -the law as it has been estab
‘■'My brethren feel constrained to say that the present case illustrates the attempt, often made, to effect radical changes in the common law by mere construction. On the contrary, the judgment just rendered will have, as I think, the effect to defeat the clearly expressed will of the Legislature by a construction of its words that can not be reconciled with their ordinary meaning.”
The cases cited in the majority opinion are mostly on statutes-widely different from our statute, and I think that none of them refer to any provision like section 24 of our Constitution to give a right of action. If such provision existed, it was not referred to in these opinions and evidently not called to the attention of the court. These decisions are ably discussed in briefs of counsel, and I shall not protract tire opinion by comment upon them, believing that a careful reading of the opinions cited in this opinion with those opinions will convince the unbiased mind that the majority opinion is wrong.
It is well known that the judicial department of the whole country is reluctant to travel new-cut roads, and the disposition to cling to the absurd and brutal rules of the common law in so far as it. deals with women and women’s rights in the marriage relation is nothing less than astonishing. In ancient and medieval times women had no rights which their husbands were bound to respect. During the gradual evolution of civilization the slavery of ancient times has been slowly and almost imperceptibly modified, but, it seems, not totally abolished yet in this state. I had believed and confidently hoped that our Constitution and statutes forever erased this blot upon our civilization. It is difficult for me to see the philosophy of that line of cases which holds that it would be disturbing to society and contrary to public policy to permit a woman to sue her husband for a personal injury. Throughout the long ages of history, so
It takes strong cases to test principles. Suppose a man having property should choose to inflict violence upon his wife to the extent of total disability and utter dis-figuration of her person, and should leave the state while she was in the hospital or recovering sufficiently to take action. The criminal law cannot reach him because he is out of the state’s jurisdiction, and no personal judgment could be entered against him for alimony. If he could get his property out of the state, or carried it ,with him, his wife would be totally without a remedy although she is totally disabled. It seems like it is a strange society that would be disturbed by the wife bringing suit for proper remuneration.in such case. Suppose again, as, in the North Carolina case, the husband uses force' and inflicts upon his wife a disease that destroys her body and would finally run her insane, would she have no remedy except a divorce? It seems to me that such a thing is unthinkable in a civilized community. Many people have conscientious scruples against divorce, and they are inveighed against with great force, by many religious and other powerful organizations. After all, a divorce is not an adequate remedy for the wrung suffered.
The illustration introduced in the majority opinion shows the absurdity of the view for which I contend and is refreshing. Says the court:
“She recovers judgment against him for an assault and battery and collects the judgment and puts the money in bank to her credit. They continue to live together as man and wife, if the lawsuit has not separated them. Result: The money would ¿still be available for family purposes, except what had been expended in court costs and lawyers’ fees. It would be like the husband taking money out of one of his pockets and putting it in another.” 1
A bank account with the right of the whole family to draw upon it may have a sentimental basis for its existence, but any person who arms the whole family with a check book with power to draw upon the bank account will likely find himself upon a stormy sea in a leaky boat headed for the breakers via the Bad Check Law. If the late Andrew Carnegie had only fallen upon this plan years ago, he might have succeeded in dying poor long before he died rich.
“Secrecy will cure many troubles- of the home, while publicity will only add fuel to the flames,” is more specious than sound. Generally, as long- as conditions are bearable family fueds do not become public. As long as there exists real affection and good treatment the members of the family are disposed to keep secret their disagreements; however, at times conditions put theory to the bad-.' It is greatly to be desired that 'there be peace and harmony in the family circle, but wise philosophizing in the high court will not change the actual conditions in the home.
