Austin v. Austin

Anderson, J.,

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 *69 and statutes are in the following language in the order stated above:

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 *70 bought and paid for it. He became the owner of her dioses in action, provided he reduced them to possession actual or constructive during; coverture. He was entitled to possession and control and the right to receive the rents and profits of her real estate during coverture, and under certain conditions this right was enlarged to an estate for life in said rents and profits. She could not make a will nor make a contract, nor could she sue or be sued alone. The earnings of the wife went to the husband. 'All suits in her behalf had to be brought in the name of her husband. The husband had to be joined in all suits against her. There was no right of action in either the husband or the. wife for a personal tort of the other. The wife was without right of action against her husband for any wrong against her estate. The wife’s disability to sue the husband was not alone for the lack of a remedy. That was merely incidental. It was for the lack of any cause of action. Therefore, in order to remove any disability of coverture affecting her right to sue, it was necessary to confer a right of action on her. Giving her a remedy to sue was not sufficient. Let us see if a right of action was conferred.

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 *71 to set out, in our opinion, wherein and in what respect the full emancipation granted in the first part of the section consists. It consists of the abolition of the disabilities of married women so far as property rights are concerned. By express terms of the statute she is given full right to acquire, own, and dispose of all kinds of property. And the right to make contracts and do all acts with reference to property which she could lawfully do were she not married. She is given the right to sue and to be sued as if she were single. There is nothing in the statute granting these specific rights which by any sort of construction could be made to include the right of the wife to sue the husband for a tort against her person. Section 2518, Code 0^1906, section 2052, Hemingway’s Code, providing that “husband and wife may sue each other,” confers on neither any right of action against the other. Its purpose was to authorize suits by husband and wife against each other where there existed a cause of action. Therefore, if any such right is conferred on the wife, it is by virtue of the second clause of section 94 of the Constitution and the first part of section 2517, Code of 1906 (2051 Hemingway’s Code), in the language quoted above: Married women are fully emancipated from all disability on account of coverture.” Clearly, if appellant is entitled to prevail in this case, it must be by virtue of that language.

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 *72 right to contract and be contracted with, and sue and be sued with reference to property and contract rights were the things aimed at. At common law there was no right of action either by husband or wife against the other for a personal tort. There was absolute equality in'that respect. Therefore there was no occasion to emancipate the wife with reference to such torts, because the husband was under the same sort of disability as the wife.

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 *73 on the subject. We cite some of them: Peters v. Peters, 156 Cal. 32, 103 Pac. 219, 23 L, R. A. (N. S.) 699; 13 R. C. L. Subject “Husband and Wife,” pars. 443 and 444; Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921; Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25; Peters v. Peters, 42 Iowa, 182; Dishon v. Dishon, 187 Ky. 497, 219 S. W. 794, 13 A. L. R. 625; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287; 40 L. R. A. 757, 72 Am. St. Rep 550; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387, 14 Ann. Cas. 882; Rogers v. Rogers, 265 Mo. 200, 177 S. W. 384; Schultz v. Schultz, 89 N. T. 644; Smith v. Smith, 29 Pa. Dist. R. 10; Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S. W. 628; Sykes v. Speer (Tex. Civ. App), 112 S. W. 422; Osborn v. Keister, 123 Ya. 157, 96 S. E. 315, 1 A. L. R, 539; Schultz v. Christopher, 65 Wash. 496, 118 Pac. 629, 38 L. R. A. (N. S.) 780; Phillip v. Barnett (England), 1 Q. B. D. 436.

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.