Brawner v. Brawner

808 Benjamin appeal. improper v. Met fact influence. on respondent stresses this jurors ropolitan Co., supra. The trial court could St. trial, R.

After the evidence Lloyd trial on this failing grant erred in new impeach verdict. not used to Co., specification motion. 360 of defendant’s St. Public Louis Service St. Brady v. [1]; 227 461 S.W.2d assigns in that In- Defendant also error 148,233 Co., 361 Mo. Public Louis Service supported No. 2 struction was evidence were If 841. additional S.W.2d plain- with evidence and was inconsistent ob- have been needed, it could and should said testimony. own we have tiff’s What the occurrence tained the time of sufficiency in connection at- the court’s first when it was called feeling evidence that score. indicates our on been only the facts have Not could tention. assignments relating error to al- Other after the ver- than developed better then prejudicial legedly jury argument and ex- dict, have inter- jury been but judgment cessiveness need rogated effectively, if course more they likely decided since to arise taken; appropriate 'indicated, However, in the same manner on retrial. however, court took no action carefully counsel should consider the merits denying the for mistrial. than motion complaints made. acting promptly The need of a court’s For the judgment error noted the is re- been effectively situation in such a has versed and the cause remanded. emphasized. repeatedly Am.Jur. EAGER, stated: J., BROADDUS, New Trial wherein Special person, part of a third Judge, concur. “Misconduct employee, or interested agent, whether party, prevailing some

friend person, influ- third calculated to

officious proper jury, ground a new

ence the steps appropriate

trial unless reason error, cure by the trial court to

taken otherwise, prejudice that no appears BRAWNER, Appellant, Marvin E. resulted.” fact trial refused Where BRAWNER, Respondent. Mattie alleged new trial on account grant a No. 46319. misconduct, appellate revision freely more than be exercised court will Supreme Missouri, Court granted. En Banc. trial Ul where a new has .been Griffith, Mo.App., 263 S.W. lom v. Sept. 14, 1959. City Public v. Kansas [7]; Girratono Mo., [3]; S.W.2d Service Mear, Mo., La James

919 [1].

Misconduct is calculated sympathy prejudice

to create justifies grant of a new so

have done Mo., Carter, Kickham

trial. jury be that well have reached the same result

would man, but presence of the blind parties, are

courts, well entitled conducted without the taint trials

Joseph Pacific, plain- Langworthy, tiff-appellant. O’Connor, Whalen, Fred B. R. James

Moser, Marsalek, Cleary, Carpenter, Jaec- Hamilton, respondent. Louis, &kel for St. STORCKMAN, Judge. by against

This is a husband an action damages in sum his wife to recover $30,000 injuries personal alleged for negligence Lave been caused operation wife in of her automobile.- petition plaintiff’s trial The court dismissed holding plaintiff husband wife against not maintain ap- plaintiff has The tort. pealed. parties at the time of

The wife, hav- injuries alleged husband and forty-seven more than ing been married for years. charged negligence properly brakes defendant failed to set the on a automobile parked her when she premises jointly private owned drive auto- parties, permitting the thereby and strike and backwards mobile roll pre- plaintiff. injure the can maintain sented whether damages against his wife a civil action negli- resulting from during the gent acts committed marriage. parties that at recognized

It is the husband nor common law neither civil action maintain a wife could Rogers tort. the other for 200, 177 Rogers, 265 Mo. S.W. Willott, 896, 62 S.W.2d Willott leading cases are the A.L.R. construing the Married Women’s Act of holding it did not permitting a effect of wife to maintain a against her civil action husband for a The first ac- case was an imprisonment for false tion latter operation negligent was based on of an plaintiff it states that automobile. The necessary be to overrule woman, permit damages the maintenance Willott order stronger alone, au- of this action because there recovered responsible for the thority judicial husband shall there both for, However, except where, law, under cases husband’s to sue. her, jointly responsible he would Willott urges that permit necessary marriage did not exist.” If sec should be overruled if create, recognizes tion does least and that the maintenance of the action liability plaintiff’s rights of a married do otherwise would violate torts; and the husband of re Missouri also under the Constitution of absolves sponsibility based on States. for the torts Constitution of United wife’s the marriage State rel. the relation alone. ex The statutes which the McCrory Bland, 197 S.W. 451.250,451.290, mainly relies Sections 2d 168 A.L.R. 929. and V.A.M.S. 507.010 537.040'RSMo presented, law, present In the of the legal problem we view state one As the unnecessary again permitted or dis- maintain is not it is to construe type the Married other because length cuss effect the the immunity. it was is that common-law Section Women’s The reason the rule of Act. that was wife true the and not the husband 1.010 RSMo V.A.M.S. This is law. of Hamil notwithstanding under coverture at common recent cases the Fulkerson, Mo., ton v. 285 S.W.2d and is a term used Coverture to de Mo., 549, in Truhitte, Ennis .2d 306 S.W scribe the condition or of a married state which that rule did cases it was held the whereby the civil existence the apply special circum not because of the many purposes merged those The Married stances cases. Diet., that of her husband. Bouv.Law Act been construed sev Women’s has Rawles Third Revision. Osborn v. authorizing actions not eral occasions as Horine, 124, 125, Supreme 19 Ill. the Court spouses. It torts between of Illinois described coverture as follows: that this court demonstrated has been very implies “The term coverture that she interpret legis the position a better is in is, during continuance, pro under the than the lative intent of these statutes husband, tection of her and the common in case that the courts decided will not anything allow her do which law It 1933. and the Willott may prejudice interests, with reach dif be that this court would well advice, approval.” out consent construing if it conclusion ferent general purpose Married Women’s day a modern statutes enacted in similar Act related statutes was the relieve say liberty to not at setting; but arewe wife from depend this condition of civil correctly do not prior these decisions that ency disability, and to free the hus of 1889. intent interpret legislative the liability from band for his wife’s torts. contention up plaintiff’s next the take We pub that declare this court should that In this case we are concerned supports longer policy of the state no lic right of a with the married woman to main rule, disapproving over thereby liability tain action but with her Willott, similar cases. ruling Rogers, capacity legal to be her husband negligence public policy plaintiff urges judgment action. If contrary public suit, is such a to the to main dismissal expressed clearly permitted the state section Motor tain Law, Responsibility Ch. resort derivative Vehicle RSMo 537.040 He contends Married V.A.M.S. sections Women’s Act to fact has the law contains no exclusion for ac- reference been made. which Section provides: civil between indicative “For all of a 537.040 tions Act of the Married Women’s construction changed

legislative trend decisions made and Willott na- overlooks policy. This contention immunity declared matrimonial provide purpose is to ture Its law. Rice v. arising those and referred to cases liabilities greater assurance Gray, Mo.App. 34 S.W.2d use ownership, maintenance out discharged. will be of motor vehicles assembly changed' general Where liability any new purport to create does not rule, aspect a common-law one in- policy here and does not affect un- generally courts have refrained volved. any remain- dertaking modification Cummings v. Illinois der of the rule. See precise While definition of Central R. public policy presents difficulty, term it is 513, wherein this 47 A.L.R.2d generally principle be that of law said to “Thus, legislature has court stated: lawfully which holds can do one rule change common law seen fit injurious tends view, respect. In our public good; dying dec- changes are to be effected —if synonymous “policy law” with the of the be made admissible are larations to and “the good”. Dille v. Luke’s St. and homicide criminal cases than 615, Hospital, 436, 355 Mo. 196 S.W.2d cases, certain (and similar) or in abortion 620(2). The of definition and the effect gen- types civil cases civil cases or in of extensively m also and is considered dis te.i erally changes should made —such Estate, 492, in In cussed re Rahn’s 316 Mo. of law-enacting branch legislature, the the 877, 291 A.L.R. S.W. 51 certiorari judiciary, the than government, rather 591, 274 denied 47 L.Ed. U.S. S.Ct. 71 also law-interpreting branch.” the 1325. S.W.2d Dunbar, 230 State 845, 848-849. judicial Both statutes and decisions proper ascertaining bearing the ambit the court’s have state, very on an important issue of but statutes are the this kind is both public policy bind and difficult to highest Benjamin delineate. Mr. evidence of N. County, Cardozo, ing judge highest appellate the Reed v. on courts. Jackson certi court New 865(1), jus- 142 York State and Mo. later Reed, Supreme 311 tice the denied Co. Court of United orari the Jackson States, recognized L.Ed. State great U.S. one of the S.Ct. Laboratories, develop- Inf. of Dalton Miles students authorities on the Inc., 574(15); ment and function of the common In law. Kemp, Spink his rel. treatise on The Nature of State ex The Ju- Process, 502, 529(40). general Judge dicial Cardozo made these extensively assembly legislated concerning has observations role of the the relation, legislator: marriage, judge as a must regard to the marital “We not throw consistency family responsibilities. advantages It to the winds the uniformity justice to do has a number of common-law dis in the in- removed incompetency p. “Each judge a hus stance.” 103. and the such abilities [the testify legislator] legislating in a criminal or a indeed is wife to within the band or competence. party which the limits of No doubt the case to other is civil pre judge in each limits the ITe instance narrower. although are communications. serves privilege Sections 491.020 and their confidential legislates open spaces in only between the law.” gaps. p. 113. He * “ fills the ^{[*] [*]} power to legislature has been declare the carries with While the law 546.260. power, duty, of marital and within limits general in the field re it the to active * * exists, lations, p. fit when none change not seen to the make law course, power, Missouri, have, including adhere to common- “Judges 124. addition, man- immunity. law rule of marital right, ignore to In though not permitted such Dis- statute, judgment actions in the and render are date of a though Columbia, On They power, England. have trict of despite Canada or it.of hand, walls beyond the the other twelve right, to travel annotation lists not the judicial rule, interstices, following minority per- the bounds set states as None mitting custom. for a by precedent and either the other innovation they states, vio- power, In Arizona less, by abuse two other “ * ** Ohio, there are p. incon- 129. decisions rather the law.” late they appear limit freedom but the minor- jural principles which clusive to follow ** states, judge, ity appears p. “The rule. that two other judge, wholly free, Wisconsin, North Carolina even when he still pleasure. aof innovate at statute authorized the maintenance free. He is roaming injury will knight-errant, is not a He beauty ofor pursuit ideal of other. his own inspiration draw his goodness. is to He legislature Illinois amended 1953 the principles. He is not from consecrated provide “neither husband its statute to sentiment, vague and

yield spasmodic nor wife sue the other p. 141. unregulated benevolence.” person Laws coverture.” assembly Illinois, 1953, p. 437, is not Obviously, general Smith-Hurd § Statutes, 1937when only equipped than this Ch. 1. In better Illinois develop pertinent facts Law York’s Relation investigate 57 of New Domestic public phase permit by of this changed to a a suit a determination was authority to in- policy greater has but also the for or wife other problem at the and particular juries, companion enacted deal with a was the problem policy related ones. “No or contract provides: same time the not an concerned is liabil- are with which we be to insure shall deemed many subjects touches on It of death of ity isolated one. an insured because dealt, such legislature has because with which the injuries to his or'her mar property his privileged to, communications injury as destruction for his liability provision re- persons, express husband’s ried unless or her ex medical in the support which includes included specifically wife’s thereto is lating York, inheritance rights of penses, children’s of New policy.” Laws Consolidated .and Also, insurance parents. Law, 3. from subd. their Insurance § interest, public with a affected business is Legal generally writers favored police state’s control of the subject to the rule, change in the al- some common-law extensively regulated. power has been and they complete though agreement are not Koon, 356 McKittrick v. State Inf. on and as to the extent nature of the modi- Leg Barker v. 284, 201 S.W.2d McCurdy Professor E. fication. William 836. Mo., gett, treatise on Torts Between Persons however, Assuming, Relation, this court is Domestic Harvard Law Re- In free change view, to declare the and discusses the considera- persuasive case, in this kind of influencing rule recogni- the courts for tions jurisdictions effect action of of the spouses other of the right denial tion or and related decisions of state should be for torts sug- sue each considered. Without undertaking to dis- possible gests ranging five solutions from holdings states, cuss in detail the in other no civil permitting permitting all they may be summarized means between though they actions annotation 632, published in A.L.R.2d strangers sole and unmarried. He appears 1955. It that twenty-nine states, prefers plan imposing a number of sub- spousal be- The common-law actions such rule

stantive limitations immunity In dis- parties. from suit for of the relation cause life period home been in disruption of existence entire cussing possible Professor collusion, more Missouri statehood. affects danger domestic It private all these “In than Hus McCurdy (p. 1053): rights, stated Am.Jur. pub- vague light band realm of should not things are in the Wife § we invade, ly appellant urges disturbed. The policy, dangerous for courts lic weapon only step rule is so with condi equipped “out of modern they are text- Among abrogated tions” priori reasoning.” should of a Torts, doing court. If We from so. subject Prosser refrain writers on the Harper requires be change, I interest pp. § 8.10, lieve, p. stated, Torts, reasons that it should James, Law assembly. liability general insurance be made On argued by some present in- effective record it has been demonstrat coverage cases is in such spouse be- ed that should the court act. defendant against a sulation sued; oth- while being unhappy about ing tend coverage would say insurance Sup ers Reply his Divisional spous- both claims since collusive to induce Brief, plaintiff presented plemental recovery benefit would es stand the com the first time his contention that Some morally offensive. which would be immunity marital violates mon-law rule of coverage insurance think that accident I, 14, Art. of Missouri Constitution liability insurance. preferable would V.A.M.S., remedy” in that “certain pecuni- is limited protection While injury This not afforded for on. losses, all accidental it covers ary presented was constitutional resulting automobile including those preserved trial nor upon human dependent accidents, is not required plaintiff’s for new motion trial as fault, couple put and does 3.23, 512.160(1) section Rule S.Ct. prerequisite position as adversary in an however, plaintiff, seeks V.A.M.S. The recovery. by invoking to have the contention decided Certainly Rule is not S.Ct. 3.27. recognized recently this Just plain manifest error in the sense it is an un- of the rule continued existence Elkins-Swyers Equip clear. Office parent to- emancipated cannot minor 448, ment 209 Co. Moniteau Mo. 357 al- damages for recover Buchanan, Quinn 130(2); 127, S.W.2d negligent by the been caused to have leged Mo., 413, Am. 417(5), 298 and 11 S.W.2d Wurth v. an automobile. operation of 1124-1126, Law 326. Constitutional § Jur. im- This Wurth, Mo., 322 S.W.2d 745. purview It is not within the of the rule upon same suit is based munity from designed prevent of a occurrence inas policy considerations of sort Fick, injustice. Rudy manifest Critcher v. Baker, 364 Mo. Baker v. bar. case at Inc., Mo., 421; 315 S.W.2d Johnson the Baker 29. Also in 453, 263 S.W.2d Mo., Fotie, 662; 308 S.W.2d In re Peter liability bar, of case, as in Mo., Estate, 295 sen’s S.W.2d 144. This This court has insured. the defendant appear further will the consideration immunity of rule of adhered also questions properly other constitutional of liability, institutions charitable raised. Schmiechen, 568, 264 364 Mo. Kreuger Hospital, plaintiff The Luke’s also asserts that judg- Dille v. St. S.W.2d 10, and of mu- ment of dismissal was in 196 S.W.2d violation of 355 Mo. § I, hospital Missouri, of nicipalities operating a a Art. Constitution while 1§ function, City 14 of Amendment of Schroeder Constitution of the governmental Louis, States, 228 S.W.2d 677. United in that he 360 Mo. was denied the St. of thereby right infringe upon in action to enforce his chose guaranties constitutional due of depriving property without process him of his and due unless process plaintiff’s passes of the regulation of law. The essence the bounds of reason process limitation arbitrary contention that the assumes due the character of any power. prevents re- imposing state from Bellerive Investment Kan- Co. v. upon City, liti- supra, striction based on marital sas status 634(2). spouses. neces-

gation between This would plaintiff also asserts sarily mean that as well as com- petition dismissal of his inwas violation of prohibited. The mon-law restrictions are I, Missouri, Art. Constitution of § says defendant there can be no constitution- 1 of Amendment 14 of the Constitution questions al rule the common-law because of the United States denied adoption he was immunity prior existed to enforce his chose in “be be- provisions. of the constitutional We cause of the parties” coverture there lieve, however, the should be decided issues him depriving equal op rights and grounds. on broader portunity equal protec under the law and In the tion of reasonable exercise the laws. The does not police power, may regulate the effect inequal state demonstrate unconstitutional ity marriage property rights and we have discovered none. parties qualification as well as the equal protection clauses parties, the contracting the formalities nec the state and federal constitutions do essary creation, for its the duties and ob subjects classification of the relation, ligations marriage incident to the legislation provisions and the constitutional grounds for its dissolution. 55 sufficiently are complied with if all within Marriage 2, p. C.J.S. Am.Jur. the same class are included and treated 187,Marriage 12.§ City, alike. Hammett v. Kansas Matrimonial status is still a matter 70, 72(1); 173 S.W.2d Ballentine v. concern; the state has a direct Nester, party and is in interest effect third (17). every marriage contract. Mar Parks v. Many statutory obliga and common-law shall, Mo. 595(7), privileges equally tions and distributed 835; Wagoner 62 A.L.R. v. Wagoner, 287 wife, between husband and such as the 1064, 1070(5). 229 S.W. family obligation support imposed on the husband, undoubtedly valid. The wis guaranties The constitutional dom and abolishing person deprived life, liberty, shall curtesy which inequality created an be property process law, without due tween husbands and wives and discrim deny any person state shall to inated the husband’s was held jurisdiction equal protection within its the to be a matter for legislative determination laws, were not intended to limit the by could not considered the courts. subjects upon police power which the 1001, O’Brien v. Sedalia Trust 319 Mo. may lawfully a state be exerted. Bellerive 74, 5 S.W .2d 76-77. The claims of un City, Investment Co. v. Kansas constitutionality are denied. ; 634(1) Valley Spring Hog Plagmann, Ranch Co. v. ruling trial The court’s was not errone- 1, 5(10), 15 220 S.W. A.L.R. 266. accordingly ous and judgment af- is firmed. regulation

A that is fairly refer police power

able to the of the state in that protect designed health, it is to safety, except All concur HOLLINGSWORTH, peace, general comfort and welfare, J., separate opinion who dissents C. filed. HOLLINGSWORTH, by “en- emancipating a woman Chief married Justice sued, ability sue and be

(dissenting). dowing to manage property, her own [and] opin- from the respectfully I must dissent earnings Claxton v. labor.” En adopted ion Court this case Pool, Mo.Sup., 197 L.R.A. S.W. well My doing reasons Banc. so 1918A, 512. While courts of the vari- in Division opinion in an submitted stated fairly ous inter- states are uniform C., which, by Stockard, omitting Two pretation they per- of these acts insofar as thereof, I, with paragraphs first and last property tain to interests of a married consent, opinion. my dissenting adopt as woman, divergence there is a wide It follows: opinion, language even when the same, substantially is statutes law undisputed that at common they whether authorize woman a married spouse an action maintain neither could by him to sue her husband or sued dur against the other for tort for what is referred to as Mo. Rogers, 265 ing coverture. Willott, Willott 177 S.W. terminology The married women’s 1084, 89 A.L.R. widely acts varies between the states. 114; 41 Husband Wife § per expressly C.J.S. Some actions for Therefore, Torts, James, Harper & 8.10. sonal torts between husband wife. See entitled if this case Chap. 68, 1, provide Ill.Ann.Stat. Others wife, against his maintain this action per that no between rule has be because the common-law must thereby sonal authorized. See § statute, appropriately changed been largest New 37:2— Jer.Stat.Ann. statute, because changed then classification of sim married women’s acts by this changed be or been should ply upon confers woman the married power inherent in the exercise to sue and be sued a feme sole. modify rules of ancient outmoded 475, and classifi 4 Fordham L.Rev. changed so common law reason various married cation there made of the Kollenborn, See State v. conditions. cial acts, col women’s and see also cases Mo.Sup., 304 S.W.2d 855. A.L.R.2d 632. lected and annotated at 43 variance group Within there is wide that neither common-law rule interpreting between the states the effect primarily was based sue the other provision. example, For of this the statu unity legal fiction of the historical provision “A while tory resulting with the con- wife husband and in the same man sue himself, person could not clusion ner as if was held to she unmarried” subsequent courts, particularly but the authorize a adoption what is as the mar- known occupation use and frequently acts, have based women’s ried estate, Skinner, separate Skinner v. real disability to sue the other but not Neb. 57 N.W. preserve promote public policy to on a personal injuries. Em authorize a suit for peace harmony and domestic marital Co., 116 Irrigation erson Western Seed & felicity. Husband Wife C.J.S. 180, 297, 56 216 N.W. A.L.R. 327. Neb. Patenaude, 396; v. 195 Minn. Patenaude hand, statutory provision the other On Fla., 546; Corren, Corren v. 523, N.W. 263 *** “may a woman sue that married Annotation, 774; 43 A.L.R.2d 47 So.2d sued, all in and be in matters law and adoption by the 632, The universal 661-662. made, any equity, and contract her women’s acts of the married states various done, wrong her as she or for many common- relieved wives unmarried,” authorized her her to sue disabilities, readily recog- it and was law Gilman v. Gil tort. the Missouri act had effect of husband that nized

817 L.R.A.1916B, separate 657, or malicious destruction man, N.H. 95 A. 78 unrewarding property plaintiff spouse, attempt Shewalter not shall 907. We 1127; in Wood, Mo.App., the cases that attempting to v. 183 S.W. reconcile task of spouse may sub either jurisdictions, but shall sue the other on con- various tract, Rudd, from other Rudd 2 sequently mention a few cases v. 318 Mo. 585; Cole, acts women’s 231

jurisdictions where married Cole 132 S.W. v. Mo. 734; con Rice, have been Sally, in v. similar to those this state Stix & Co. 176 right 398; Realty In- 75 & Regal in reference to S.W. strued Mo.Sup., tort. 188 spouse Gallagher, for a vestment sue the other Co. v. to 151; Greenwell, Mo.App. S.W. v. Hall 231 married provision of Missouri 150; v. Montgomery primarily we are act with which women’s Montgomery, Mo.App. 481, S.W. concerned, 451.- as section designated now that her in a wife sue husband may RSMo (all references to equity to property, recover her Hudson stated), V.A.M.S., otherwise unless Wright, that 204 Mo. S.W. it has in originally enacted was may a wife sue her conversion husband for except a unchanged for minor remained property, Mo.App., Smith, of her Smith material not to in 1939which is amendment apparent It is that the This presented sec- in this case. the issues specific in absence this statute of provides: “A woman shall tion married for one to sue other has far as to enable be a sole so deemed in deterred that holding the courts from femme carry business on her on and transact equity, prop- involving cases in those and in account, and be con- her own to contract erty rights, though the was one even suit with, sued, and to en- sue tracted tort, sounding the statute furnished prop- her against force have enforced necessary abrogate authority to the com- may erty judgments be rendered such mon-law than rule that such suits other her, may and be sue equity those in between could equity, law with or be maintained. ** party; being joined *.” husband presented In 1915 first to this was there is in of the com derogation This court the of whether reason law, unquestionably mon and it creates married women’s act one women new and it removes married could other for tort. sue the certain We note common-law disabilities. Rogers, 177 S.W. provides although that a married that sought woman but was may law or in sue and sued at denied the maintain a for dam- equity, provide specifically it does alleged ages her husband for an may or that hus sue husband wife imprisonment. The false court stated hand, may his On the other band sue wife. “definitely what is now section 451.290 exception any specific make does not for, purposes declares the the extent * * * language as general and all inclusive married woman] [a wife. Prior between suits husband sole,” a feme deemed but it shall it was enactment of section 451.290 authority for a not contain married woman a wife that in some held situations to sue husband equity. Rieper sue her husband Rie “it further stated has never per, 79 Mo. 352. After its enactment it held he been [the husband] personal tort” of this been held reason statute a his and what is 451.290, equity, section sue wife Abram now another statute Abramsky, repealed, attempt sky did “not S.W. now confer 1178; upon spouse may rights sue the of action greater that either other a married possessed replevin or for the in conversion willful woman than her or husband.” 818 question Rogers of the placed being on Peters v. as decisive was reliance

Considerable 219, sue 23 of entitled to Pa. whether one Peters, 103 156 Cal. v. personal tort com- held L.R.A.,N.S., 699, it was other wherein mitted during an action coverture. maintain could not husband wounding deliberately against his wife for Rog- Rogers v. be contended case of the Peters An examination him. point precise pertain to ers relied discloses that California sue her sought to here a wife because there stated go any farther than as on did not instead husband for a is, her case, “giving Rogers in justifiable way no other around. We see permitting separate property and right to cases attempt distinguish the reason to him,” there and that her to contract in on contained that basis. The in sec provision, comparable to was no but to only to is not section 451.290 451.290, that married woman tion sole. a feme equity be sued at law or in equity a feme in sue or be sued law or pertains problem here we have Rogers it was concluded sole. In the spouse to of one sue the act although married women’s during coverture tort committed * * * in “comprehensive this state was or plaintiff-spouse husband whether be * * * effecting married woman’s] [a con- determining wife. this emancipation bonds from matrimonial so Rogers only given sideration must be right to property rights far as her opinions two recent but also to contract and her husband with others court, now discuss. shall this which we concerned, by him to sue Fulkerson, supra, In Hamilton v. Sally, Mo. loc. at law Co. 176 (Rice, Stix her permitted to sue sought and was cases), to sue cit. S.W. on antenuptial tort an based alone tort for sustained operation automo- negligence of an through negligence (Elliott of others principally The decision turned bile. 627), City, v. Kansas 109 S.W. which, interpretation 451.250 of section implied in authority express there is or “All pertinent parts, is as follows: per him given act her to sue property, in- any personal real estate and ruling appears sonal at first tort.” This action, cluding belonging to rights in strictly interpre reading to based may have marriage woman at her or which statute, tation of but as language coverture, by be- gift, come to pointed Fulkerson, Mo. out Hamilton v. quest inheritance, by purchase with Sup., 285 S.W.2d “the reasons means, separate money or be due as statutory there prompting construction labor, separate wages of her or has possible plausible rather than made any * * * grown out of her violation construction, contrary considerations ” rights, remain her shall un ‘public policy.’ was the Whatever separate property and under her sole con- reached, there derlying basis for the result * * trol, In the Hamilton case [285 construction of the Missouri language it was held that the S.W.2d 645] consistently followed. women’s act has been plain,” this statute broad and “seems Gray, Mo.App. 34 S.W. Rice v. and that “even if the common-law rule that Willott, 567; Willott v. 2d marriage extinguished all of action 1084, A.L.R. Rosenblum another, spouse against and claims Rosenblum, Mo.App. 96 S.W.2d * * * be, specif- should in the absence of 1082; Mullally Langenberg Bros. Grain provision contrary, ic rec- Planck applied today Missouri, ognized Sec- Planck, Mo.Sup., 199 S.W. 1183. We necessary specific tion 451.250furnishes the individually these cases not discuss be need statutory authority abrogation for the they purported follow might apply all as it cause that rule otherwise * * * Mullally No dis- this court decision in case.” the facts of [that] appropriate Langenberg made, Bros. Grain was nor was cussion provisions that there facts, “recognized S.W.2d so under the do policy right public were no pertaining to considerations in section 451.250 come weighty enough prohibit a wife’s “which action the wife “has tort against personal which her husband for during her coverture” * * * personal marriage.” during her any grown out violation [285 appli- interpretation S.W.2d But the rights.” 647.] led to which section 451.250 cation of pointed out In the Hamilton case it was apparently Hamilton Fulkerson result in was that in no mention equal and effect apply force

would with what is given made of or consideration sought to wife situation where a the factual it was then 451.250, although now section for a action a cause of sue her husband on alsoWe in effect as RSMo 1909. during her personal “to tort which came Willott, supra, a note that in Willott any “out of arose coverture” which husband sought to sue her wherein a wife As we rights.” personal her violation of negligent injuries resulting held subsequently see this shall automobile, then operation what was of an Truhitte, Mo.Sup., S.W.2d Ennis v. now section RSMo and is person- husband commits that when a “it only 451.250deserved the comment of action right his wife a against al tort separate obviously so relates alone can sur- existence which- does come into property a married pre- death, necessarily and this vive his give it out intend to do not set rights. supposes personal a violation of her * * Mo. further notice [333 Specific given consideration was directly This comment is 62 S.W.2d 1084.] public question of Hamilton case to the interpretation in conflict policy, right of and its effect on the Hamilton Fulkerson. statute in against her hus- wife to maintain the suit supra, Truhitte, a woman Ennis v. In band, no “there are but it was held that against maintain action permitted to was policy” matters 647] [285 her husband for estate of deceased prohibit maintenance of would during coverture. personal occurring tort specific that case. facts of the suit under expressly wheth- opinion state does Therefore, even if it was not intended placed 451.250 section er reliance 451.290, as stated what now section 451.290, stated that but it was section Rogers, 177 S.W. Rogers v. [265 act, of which both women’s the married greater rights confer “to 384] part, be a does are considered to sections possessed upon a than are married woman deny expressly grant not either husband,” holds the Hamilton case for a right to sue husband wife the Legislature that the did confer on the terminology tort, “the but that right her husband for an ante- to sue permissively enough is broad the statutes nuptial personal tort whether the husband matter.” cover the 551.] [306 corresponding right or not. has appli- in its important feature this case addition, inescapable result us the matter now before cation to case, by interpre- reason of its Hamilton expressly held that a the court 451.250, must of section necessarily tation during the other by one be that wife give rise to a cause of ac- coverture “to her tort which came commenting on the fact that After tion. “ which arose “out coverture” ‘that one it is stated sometimes personal rights,” of her and that violation the other re- of action no would the action damages for caused cover ” other,’ because, case, stated “it stated in the Hamilton it was belies cause ly intentionally injures tort or a no other say there is reality that fact to intentionally personal come of action for that tort does either when the husband course, existence, into section 451.290 that Of injures wife.” negligently say permissively enough “broad cover to to and fact reality equally belie it would main- preclude the either matter” and it does not when the there is that no.tort by spouse her hus- injures against tenance of a suit one intentionally negligently tort; that personal the reasons in the Ennis It was band. held one tort, though prompting is sec- the construction of what was a even “If there against Rogers Rogers tion in spouse an action 451.290 v. could maintain not ac- “the courts the women’s wrong, the cause of should construe the other for the emancipation way course, time in tion, at the statutes such accrued capable disturbing possibility would damage avoid the injury or when the ‘is * * * * * * so, tranquility” (See v. domestic Hamilton ascertainment’ Fulkerson, supra, 644); page sur- being in S.W.2d at was ‘a cause of action there ” unquestionably the circum- Hamilton v. Fulkerson It vive.’ was concluded purports “infringe dispose “public policy stances in the Ennis case did court, question” by any its assertion that this policy,” and because reasons “preclude Mullally in Langenberg act Bros. Grain married women’s supra, “recognized maintained. no con- that there were the action” the suit could public policy enough weighty siderations of holding of necessarily that the follows prohibit against a wife’s suit her hus- S.W. Rogers Rogers [265 * * * personal band for a tort commit- tort personal that “an action for a 2d 384] course, during pub- marriage.” ted Of if a wife against husband prohibit lic does not a wife’s suit un maintained during coverture cannot be husband, personal against tort by the disapproved der our statutes” was does not such a suit preclude it would Ennis case insofar as against necessarily the wife. must We an action maintenance of such inescapable conclude that in view of the Also, it husband. estate of deceased implications arising from what was said inescapable language Rogers that the in done Hamilton v. Fulkerson to the effect that in event Truhitte, Ennis this court in effect a husband sue his wife for a could already disapproved the result in disapproved tort is insofar as Therefore, Rogers. prevent suit a husband construed directly have is whether we should now against the estate of wife for his deceased n disapprove it, inescap- or retract from the tort committed cover- implications able of these recent cases. ture. depends upon agree This whether we briefly present summarize the We permits section 451.290 a suit for situation as follows: 451.290does Section spouse other, one against the expressly spouse may state that one so, any impelling whether there purpose, not sue the other for but reasons, notwithstanding such authoriza- consistently the courts have held that this tion, public policy requires this supplies necessary statutory plaintiff deny the this case to abrogate common-law rule his wife for a sue spouses, prohibited suits between a it authorizes construction: lan- As to equity, and at the other law on 451.290 that guage of section protection contracts, prop- and for be deemed a feme woman shall sole so though sounding the action is one erty even as to enable and be far sued at tort; equity. Truhitte Ennis v. or in This statute law seems “to [306 plain negligent- that when one words can be as broad as make it.” holds 551] joining cases sue and be Ky., 262 Gosser, Brown v. husband, extent as if she were same 43 A.L.R.2d to unmarried. It was held: “The stat- entitled there unquestionably would be against ute cannot abrogate be construed to a hus- his cause maintain suit on unmarried, immunity by band’s common-law suit that if she were the defendant purposes, his wife sole, Legis for contract be con- the and is, a feme and if she were perpetuate immunity strued for the de an- unequivocally that said lature has purpose.” By fendant, woman, may be reason the sued broad married as a language by and unrestricted all inclu used The broad and a feme sole. as Legislature limited in section 451.290 it incon- is not is language of sive entirely directly support sistent and in the any respect, and it does not in say language he sued used it was intended that provide may by that she inference a may In married woman sue her husband everyone except Gil and her husband. be him Gilman, L.R.A. on a contract and for a 95 A. man v. N.H. property tort but 1916B, 907, not for a a statute tort. the court construed may holding We must and do “sue reaffirm the a woman and that married Ennis v. Truhitte sued, equity that the married in in law and women’s all matters * * * unmarried,” permit act does authorize mainte- it as if she were nance of a suit for given one language there held: “If this is spouse against the other. ordinary can main meaning, its she [wife] action, providing could main this she tain public policy: previously As to We woman; single if it were a tain she noted that the construction in * * * that, provides in terms the statute Rogers what is now 451.290was based may in sue and be sued all matters as she primarily upon considerations of ** * were though she unmarried. policy. language is section 451.290 the test to determine Therefore whether Kentucky comparable in the to that stat- plaintiff can maintain this action is to 404.020, ute, KRS which authorized a mar- inquire maintain whether she could single woman “to sue and be a ried sued as unmarried, inquire she woman,” Gosser, supra, in in Brown is, nor whether is defendant she who commenting provision that seeking property right.” a This enforce question, public policy it was stated interpretation reasoning applies equal- elementary “we are faced with the that still ly as well when is the husband who think, and, proposition we unanswerable plaintiff when it is the wife. There spoken Legislature has- on this nothing in section 451.290 to indicate public poli- subject. enunciated a determining whether married *** cy subject saying a on this may woman be sued the in- courts should may woman sue be sued -as plaintiff quire who the is. woman. It is not the function of the single contrary policy.” to enunciate a courts also nothing We see in the in- statute to escape We cannot inquire 484.] dicate courts should con- [262 conclusion, notwithstanding the result action, cerning nature cause Rogers, is, reached that our that whether it is on contract, a suit announced, without tort, property Legislature has also or for a Keller, any limitation as who Brandt v. 413 Ill. 109 N.E.2d type of action or provision the court or defendant or construed the public policy in purpose, (prior Illinois married act its women’s expressly prohibit- amendment which state is that married sued, our function that it is not ed suits between torts contrary policy though coverture, even Chap. enunciate see Ill.Ann.Stat.), agree that the provided may not announced in sub- could, agree with statement oi stance best. We that a married woman all ; opinion dissenting 461, 471-480; Harlan in the 10 Calif.L.Rev. 1052 Justice ; Thompson, Thompson U.S. 290 23 Mo.L.Rev. and the Ind.L.J. 111, 113, 114, 54 L.Ed. S.Ct. cases collected and annotated in 43 A.L.R. L.R.A.,N.S., Ann.Cas. 2d 661-664. the court the functions of “it is not within This Hamilton Fulkerson dis- the evils dangers to ward off the feared cussed in considerable detail the various simply by judicial construction threatened “public policy” arguments against the main- plainly-expressed will

that will defeat tenance of a department.” legislative other for antenuptial an tort. The same however, be con- arguments pro that it Assuming, apply equally and con to the in sec- contained spouse tended that maintenance a one suit other 451.290 for one the other tion during tort committed tort, coverture, including a any purpose, for burdening opin- this only, reason this permissive repetition for that ion with a of that discussion that such suits declare impelling why no find reasons conclu- permitted presented not be one should here sion Hamilton case this public policy, court in as a matter should now disapproved. We are in- effect, Fulkerson, has, al- Hamilton v. to agree clined statement considera- ready that there are no Mertz, stated Mertz v. 271 N.Y. 3 N.E.2d enough to policy weighty public tions of 108 A.L.R. made reference to prohibit one a the rule policy that should personal tort committed other for personal tort, suit between marriage. “the merely product rule exists as a judicial interpretation, vestigial frequently most advanced The reasons character, and policy embodies tenable argument support of morals or of social urge welfare. To bar one to suits constitute should survives because it is an aid to tort spouse against the other conjugal peace disregards reality. Con- destroy disturb suits would are that such peace jugal seriously jarred would be as accord; harmony and domestic marital action for contract, an breach or on claims; and collusive cause fraudulent promissory note, or for an injury to promote litigation; trivial encourage * * * property, all of which the law frequently asserted that It is also lawsuits. permits, one for injury.” spouse to sue other is not needed because the challenge There is no petition criminal laws afford ade- divorce than parties are husband complete For discussion quate remedy. For the forth, and wife. reasons above set policy argument” see Leach “public of this I am conviced v. Rogers and Leach, Ark. the cases have followed the result Keller, Gosser, supra; Brown v. overruled, Brandt there reached should be and that Thompson Thompson, supra; supra; petition judgment dismissing in this Torts, 8.10; James, Prosser on Harper & should be reversed and the cause re- Torts, ed., 43 Har.L.Rev. 2d manded for further proceedings.

Case Details

Case Name: Brawner v. Brawner

Court Name: Supreme Court of Missouri

Date Published: Sep 14, 1959

Citation: 327 S.W.2d 808

Docket Number: 46319

Court Abbreviation: Mo.