Aldrich v. Tracy
| Citation | 269 N.W. 30,222 Iowa 84 |
| Decision Date | 29 September 1936 |
| Docket Number | 43297. |
| Parties | ALDRICH v. TRACY. |
| Court | United States State Supreme Court of Iowa |
Appeal from District Court, Delaware County; A. B. Lovejoy, Judge.
Action at law by plaintiff, as administrator of the estate of Mabel B. Tracy, deceased wife of Reginald S. Tracy, for damages for injuries and death of his decedent caused by an attack made upon her by her husband, said Reginald S. Tracy. The defendant, Tracy, filed a demurrer, which, upon hearing, was sustained. The plaintiff stood upon the ruling, refused to plead further, and judgment was entered against him for costs. From such judgment the plaintiff appealed. The opinion states the facts.
Affirmed.
J. E Remley, of Anamosa, and H. J. Swift, of Manchester, for appellant.
Bronson & Ellis, H. J. Williamson, and Yoran & Yoran, all of Manchester, for appellee.
Reginald S. Tracy and Mabel B. Tracy were married in 1902 and lived together as man and wife until October 3, 1934, when she was murdered by her husband, Reginald S. Tracy, acting through an accomplice. Reginald S. Tracy was indicted for murder in the first degree, to which he pleaded guilty, and, under the judgment of the trial court, he was sentenced to be hanged. An appeal was taken from this judgment, and on the 27th day of February, 1935, pending such appeal, this action was instituted. In the petition the plaintiff, Roy L. Aldrich, as administrator of the estate of Mabel B. Tracy, deceased asked for damages against the defendant, Reginald S. Tracy in the sum of $15,000, because of burial and funeral expenses, loss of time and earning power, and mental pain and suffering that he alleged resulted from the wrongful attack upon and murder of the decedent. To this petition the defendant demurred on the following ground: Hearing was had upon this demurrer, and, on the 15th day of August, 1935, the demurrer was sustained. On the 21st day of August, 1935, the plaintiff elected to stand on the ruling, refused to plead further, and judgment was entered against him for costs. From this judgment the plaintiff, on September 6, 1935, perfected an appeal to this court.
In the meantime, the appeal taken by the defendant in the criminal action, in which he was sentenced to be hanged for the murder of his wife, had been submitted to this court and decision rendered on June 21, 1935, and, following the appeal in the case at bar, the defendant was executed on November 29, 1935. The abstract of record was filed by the appellant on September 19, 1935, and, on the 9th day of January, 1936, appellant filed in this court his brief and argument. Thereafter, on January 28, 1936, the attorneys who had appeared for the defendant and appellee, Reginald S. Tracy, prior to his execution, filed in this court an instrument denominated " special pleading and motion to dismiss," in which they designated themselves as amici curiæ . In this motion they set out a certified copy of the record in the case of State of Iowa v. Reginald S. Tracy, in which it is shown that said Reginald S. Tracy was executed and died on the 29th day of November, 1935, and that, for that reason, the appeal could not be prosecuted in the name of Reginald S. Tracy, appellee. They also set out the fact that the abstract was not filed within 40 days before the time fixed by this court for hearing of this appeal, and asked that the appeal be dismissed. To this motion to dismiss, the appellant filed a resistance and application for a continuance. On February 12, 1936, the appellee's motion to dismiss was overruled and appellant's motion for a continuance was sustained. Thereafter, in March, 1936, a will of the deceased, Reginald S. Tracy, was probated in the district court of Delaware county, Iowa, Bennie Worm was appointed as executor thereof, and by proper procedure was substituted as appellee in this case. On April 25, 1936, the appellee filed a new motion to dismiss, and a brief and argument on behalf of Bennie Worm, executor, substituted appellee. On May 2, 1936, the appellant filed a motion to strike the appellee's motion to dismiss, a resistance to said motion to dismiss, and a reply argument. The appellee's motion to dismiss, and the appellant's motion to strike and resistance to appellee's motion to dismiss were not ruled on prior to the submission of the case. We have examined these motions and resistance, and have considered the arguments and authorities cited in support thereof, and it is our ruling that the resistance to the motion to dismiss be sustained, and that the motion to dismiss be, and the same is, overruled.
On the merits of the case itself, one proposition only is presented for our consideration: Did the plaintiff, as administrator of the estate of Mabel B. Tracy, deceased, have the right to maintain an action against her surviving husband, Reginald S. Tracy, because of the wrongful injuries and death inflicted upon Mabel B. Tracy by the defendant, Reginald S. Tracy? The demurrer is based upon the single ground that no such right existed, for the reason that the petition shows that Reginald S. Tracy and Mabel B. Tracy were husband and wife at the time the tort sued upon was committed, and that, under the laws of this state, a wife cannot maintain a suit or obtain judgment against her husband for damages growing out of a tort committed upon her by him.
It is conceded that no such action could be maintained by the wife against her husband at common law. It is contended by the appellant, however, that the common-law restriction has been removed by statutory enactment in this state. The particular statute upon which the appellant relies in this case is chapter 214 of the Acts of the Forty-Fourth General Assembly, which appears in the Codes of 1931 and 1935 as section 10991-dl. Appellee, on the other hand, contends that, neither under the language of this section, nor under the decisions of this court, construing previous legislative enactments changing the common-law status of women, can the statute relied upon by the appellant be construed so as to entitle a married woman or her estate to maintain an action for damages for personal injuries or death against her husband. In the case of Peters v. Peters, 42 Iowa 182, a wife sought to maintain an action against her husband for tort consisting of various assaults and batteries made upon her by him. At that time there was a statute in this state (section 2204, Code 1873) which provided that: " Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried." There was a further statute (section 2211, Code 1873) which provided that: " A wife may receive the wages of her personal labor and maintain an action therefor in her own name, and hold the same in her own right; and she may prosecute and defend all actions at law or in equity for the preservation and protection of her rights and property, as if unmarried." This court held that these statutes did not so change the common law as to authorize the wife to maintain an action for tort against her husband.
Section 2562, Code 1873, provided that: " A married woman may in all cases sue and be sued without enjoining her husband with her, * * * and an attachment or judgment in such action shall be enforced by or against her as if she were a single woman." This provision was carried into the Code of 1897 as section 3477. By chapter 163 of the Acts of the Thirty-Fourth General Assembly, section 3477 of the Code of 1897 was repealed and section 3477-a of the 1913 Supplement to the Code was enacted in lieu thereof. This latter provision was carried into the Code of 1924, but in the recodification it was divided into sections 10462, 10463, and 10464. In 1928 this court had under consideration the case of In re Estate of Dolmage, 203 Iowa 231, 212 N.W. 553. This case involved a claim for damages by the administrator of the estate of Florence Dolmage, deceased, against the estate of her deceased husband, growing out of her wrongful death, which was caused by him. The particular provision of the statute which was relied upon in that case, and which it was claimed authorized the maintenance by a wife of a suit against her husband for wrongful injury or death, was section...
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