Austin v. Austin

• Decision Date: 16 June 1924
• Docket Number: 23874
• Citation: 100 So. 591,136 Miss. 61
• Court: Mississippi Supreme Court
• Parties: AUSTIN v. AUSTIN. [*]

100 So. 591

136 Miss. 61

AUSTIN v. AUSTIN. ^[*]

No. 23874

Supreme Court of Mississippi

June 16, 1924

APPEAL from circuit court of Hinds county, First District, HON. W H. POTTER, Judge.

(En Banc.)

HUSBAND AND WIFE. Neither husband nor wife can site the other for personal tort.

Section 94 of the Constitution of 1890, and sections 2517 and 2518 Code of 1906 (Hemingway's Code, sections 2051 and 2052) emancipating married women from the common-law disabilities of coverture, do not have the effect to remove the common-law disability of husband and wife to sue each other for a personal tort; therefore the common law stands, and neither husband nor wife can maintain such a suit.

ETHRIDGE and HOLDEN, JJ., dissenting.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First District, HON. W H. POTTER, Judge.

Suit by Mrs. Viola Austin against H. L. Austin. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Teat & Potter, for appellant.

The question here presented for the decision of this court is the construction of sections 2517 and 2518, Code of 1906, sections 2051 and 2052, Hemingway's Code. The states of Alabama, New Hampshire, Connecticut, Oklahoma, Arkansas and North Carolina, all support our contention that under statutes, either identical or similar to ours, a wife may sue her husband for a tort committed upon her. The New Hampshire statute and the Mississippi statute are almost identical. Johnson v. Johnson (Ala.), 77 So. 335, 201 Ala. 41, 6 A. L. R. 1031; Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L. R. A. (N. S.) 185. To the same effect are the cases of Fiedler v. Fiedler (Okla.), 140 P. 1022, 52 L. R. A. (N. S.) 189; Fitzpatrick v. Owen (Ark.), 186 S.W. 832, 187 S.W. 460, 124 Ark. 167, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772; Prosser v. Prosser (N. C.), 102 S.E. 787; Cromwell v. Cromwell, 105 S.E. 206, 106 S.E. 149.

In the court below, opposing counsel contended that although the Mississippi statute gave the wife the right to sue and be sued with all rights and liabilities incident thereto as if she were unmarried, and in express terms gave her the right of suing her husband, this action would not lie because no cause of action arose in her favor when the tort was committed upon her. If this is true the words of the statute are meaningless because under the common law no cause of action ever arose in favor of either spouse as against the other. The theory of unity prevailing and there only being one person in the eyes of the law, and that person being the husband, of course, no cause of action would lie. But can it be said in this enlightened age and in the state which enacted the first Married Woman's Act that this barbaric relic of antiquity still prevails.

If the wife is, in the eyes of the law, a separate being, endowed with her own identity and subject to all of the obligations imposed by law upon her, then the statute giving her a right to sue and be sued as if she were unmarried and giving her the further right in express terms to sue her husband, confers upon her the right to maintain this action.

In those cases supporting the contrary position, it is urged that it would be contrary to public policy to allow such actions to be brought; that the sanctity of the home would be invaded if the wife could sue her husband for real and fancied wrongs thereby destroying the granite pillars of civilization. Our answer to this contention is twofold: First, that this is a matter over which the courts have no concern. If the common-law fiction of unity does not prevail in Mississippi and if the legislature has decreed that the public policy of our state is that the wife may sue her husband there is nothing for the court to do but to carry out this announced public policy. The public policy of the state, of course, is fixed by the legislature, and the courts having determined the intention of the legislature are in duty bound to carry out that intention.

Our second answer to the defense of public policy is that it is no more scandalous, no more liable to destroy the sanctity of the home for the wife to sue her husband in a civil action than it is for her to testify in the divorce courts or in the criminal courts touching the same subject-matter. It was a proud boast of the common law that there was a redress for every wrong. There is no question that the plaintiff in this case was greatly damaged by reason of the negligent action of the defendant. There can be no doubt that in the enlightened public mind the old theory of unity has been abolished. A mere reading of the statute will convince the mind that the legislature has given the wife the right to sue her husband. All this being true, we contend that the demurrer to the defendant's replication should be sustained and that this case should be reversed and remanded.

Watkins, Watkins & Eager, for appellee.

For the thorough understanding of this question, it will be necessary to review the original common law upon the subject. At common law the husband and wife were considered one person. There was a complete unity of person and of interest. Marriage operated as a gift from the wife to the husband of all personal property, and the husband could do as he pleased with it; and likewise, the earnings of the wife went to the husband. See Magruder v. Steward, 4 How. 204; Kilcrease v. Kilcrease, 7 Howard, 311; Lyon v. Knott, 4 Cush. 548; Clarke v. McCreary, 12 S. & M. 347; Henderson v. Warmack, 5 Cush. 830; Armstrong v. Armstrong, 3 George, 279.

At common law, a married woman had no right to bind herself by contract, such contract being absolutely void. Davis v. Foye, 7 S. & M. 64. Suits for the recovery of her separate estate were brought in the name of her husband, down to 1857, when she was permitted to join with her husband but could sue alone if her husband refused to join. Winston v. McClendon, 43 Miss. 254; Blodgett v. Ebbing, 2 Cush. 245; 30 Corpus Juris, 495.

Mississippi Legislation. The injustice of this situation was early apparent to the lawmakers of the state of Mississippi. The original act dealing with the subject was that of 1836, and another one was in 1846. These acts were brought forward in the Mississippi Code of 1857, sections 335-336.

Notwithstanding this act, the wife still suffered other common-law disabilities. She could not contract with her husband and she could not bind her personal estate by engaging in business or trade. Sections 1778, 1779 and 1780 of the Code of 1871, however, contained all the provisions emancipating the wife, contained in the code of 1857, and in addition thereto provided that she could engage in business as a feme sole, and enter into contracts with her husband.

In the Code of 1880, sections 1167, 1168 and 1169, married women were completely emancipated, all common-law disabilities were removed in respect to their property, and it was provided that husband and wife might sue each other, and a married woman was permitted to dispose of her property by last will and testament.

Practically the same provision is found in chapter 61 of the Code of 1892; and the identical provisions are brought forward in chapter 35 of Hemingway's Code of the state of Mississippi.

The Issue Here. Our contention is that the acts of the Mississippi legislature emancipating woman in respect to her property and property rights did not completely revolutionize the marriage status and destroy the unity of husband and wife except as specifically provided by the statute; that the statutes providing remedies for the enforcement of existing rights, such as are expressly conferred, and that the statute permitting the husband to sue the wife and the wife to sue the husband created no liability not existing at the time or created by the statute. Such statutes are in derogation of common law, and that the unity of husband and wife will not be disturbed or destroyed to any greater extent than the statutes have provided. Griffin v. Miller, 29 Ga.App. 585, 116 S.E. 339; Viguere v. Viguere (La.), 63 So. 89; Bertles v. Nunan, 92 N.Y. 152, 44 A. R. 361.

Our position is that the unity of husband and wife is not completely destroyed. The husband was not liable to the wife nor was the wife liable to the husband, at common law, because they were the same person and the law could import no obligation on the part of one to the other. Our statutes have only changed the rule, and abrogated the unity of husband and wife, in respect to her property, and given her appropriate remedies for the enforcement of her property rights. In all other respects the unity of the husband and wife prevails to the fullest extent. Section 2051 of Hemingway's Code; Section 2052, Hemingway's Code. While we find no decision from this court directly in point. Hewlett v. Ragsdale, 68 Miss. 703, is strongly analogous.

We now invite the attention of the court to the following authorities in support of the appellee's theory of this case: 13 R. C. L., Subject "Husband and Wife," paragraphs 443-444; Thompson v. Thompson. (Court of Appeals, D. C. ), 14 A. & E. Ann. Cases 879; Thompson v. Thompson, 218 U.S. 611, 54 L.Ed. 1180; California: Peters v. Peters, 103 P. 219, 23 L. R A. (N. S.), 699; Georgia: Hyman v. Hyman, 92 S.E. 25; Iowa: Peters v. Peters, 42 Iowa 182; Kentucky: Dishon v. Dishon, 219 S.W. 794; Maine: Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Michigan: Bandfield v. Bandfield, 40 L. R. A. 757; Minnesota: Strom v. Strom, 107 N.W. 1047, 116 A. S. R. 387, Note 14, A. & E. Cas. 882; Missouri: Rogers v. Rogers, 177 S.W. 384; New York: Schultz v. Schultz, 98 N.Y. 644, and Newton v. Webber, 196 N.Y.S. 113; Pennsylvania: Smith v. Smith, 29 Pa. Dist. 10; Tennessee: Lillienkamp v. Rippetoe, 179 S.W. 628; Texas: Sykes v. Spear, ...