Bandfield v. Bandfield
75 N.W. 287
Mich.
1898
Check Treatment
Grant, C. J.

(after stating the facts). Thе sole question is: Can a wife maintain suit against her husband for a personal tort, committed upon her while they were living together as husband and wife ? We answered this question in thе negative in the case of Wagner v. Wayne Circuit Judge, decided November 17, 1897. In that case the husband had uttered a gross libel against his wife. She brought suit by capias ad respondendum, and the proceedings were quashed by the сircuit judge, for the reason that the wife could not ‍‌​‌​‌‌​‌​​​​​​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌‌‌‍maintain the suit against her husband. The wifе applied to this court for the writ of mandamus to compel the circuit judge to vacate that order. The writ was denied, and the order of the circuit judge sustained. No оpinion was written. But the sole and identical question there in*82volved is the same as is involved in this suit. The briefs there filed pursued the same line of argument and cited the same authorities as are now cited. Counsel cite the married woman’s act of this State as conferring this right. This act is found in 2 How. Stat. §§ 6295, 6297, which read as follows:

‘ ‘ The real and" personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become ‍‌​‌​‌‌​‌​​​​​​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌‌‌‍entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female. * * *
‘ ‘ Actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried.”

In many decisions the courts of many of the States, notwithstanding the statutes cоnferring rights upon a married woman over her separate property not possessed at the common law, have thus far, without exception, denied the right оf a wife to sue her husband for personal wrongs committed during coverture. No such right is сonferred by our statute unless it be by implication. The legislature should speak in no uncertain manner when it •seeks to abrogate the plain and long-established rules оf the common law. Courts should not be left to construction to sustain such bold innovatiоns. The rule is thus stated in 9 Bac. Abr. tit. “Statute,” I (4), 245:

“In all doubtful matters, and where the expression is in genеral terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutеs are not presumed to make any alteration in the ‍‌​‌​‌‌​‌​​​​​​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌‌‌‍common law, farther or otherwise than the act expressly declares. Therefore, in all generаl matters the law presumes the act did not intend to make any alteration; for, if thе parliament had had that design, they would have expressed it in the act. ”

The result оf plaintiff’s contention would be another step to destroy the sacred relаtion of man and wife, and to open the door to lawsuits between them for every real and fancied wrong, — suits which the common law has refused *83on the ground of publiс policy.' This court has gone no further than to support the wife, under the married woman’s act, in protecting her in the management and control of her proрerty. It has sustained her right to an action for assault and battery, for slander, and for alienation of her husband’s affections against others than her husband. Berger v. Jacobs, 21 Mich. 215; Leonard v. Pope, 27 Mich. 145; Rice v. Rice, 104 Mich. 371. At the same time, it hаs held that the wife could not enter into a partnership or other business ‍‌​‌​‌‌​‌​​​​​​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌‌‌‍with her husband, аnd thus become responsible for the contracts and debts of her husband. Artman v. Ferguson, 73 Mich. 146 (2 L. R. A. 343, 16 Am. St. Rep. 572); Edwards v. McEnhill, 51 Mich. 160. Personal wrongs inflicted upon her give her the right to a decree of separation оr divorce from her husband, and our statutes have given the court of chancery exclusive jurisdiction over that subject. This court, clothed with the broad powers of еquity, can do justice to her for the wrongs of her husband, so far as courts can do justice, and, in providing for her, will give her such amount of her husband’s property as the cirсumstances of both will justify, and, in so doing, may take into account the cruel and outrаgeous conduct inflicted upon her by him, and its effect upon her health and ability tо labor. 2 Am. & Eng. Enc. Law (2d Ed.), 120; 2 How. Stat. § 6245. In the absence of an express statute, there is no right' tо maintain an action at law for such wrong. We are cited to no authority holding the contrary. We cite a few sustaining the rule: Abbott v. Abbott, 67 Me. 304 (24 Am. Rep. 27); Freethy v. Freethy, 42 Barb. 641; Peters v. Peters, 42 Iowa, 182; Schultz v. Schultz, 89 N. Y. 644; Cooley, Torts, 228; Schouler, Dom. Rel. ‍‌​‌​‌‌​‌​​​​​​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌‌‌‍§ 52; Newell, Defam. 366; Townsh. Sland. & L. § 300.

J udgment afflrmed.

The other Justices concurred.