Bandfield v. Bandfield

• Decision Date: 17 May 1898
• Citation: Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287 (Mich. 1898)
• Court: Michigan Supreme Court
• Parties: BANDFIELD v. BANDFIELD.

75 N.W. 287

117 Mich. 80

BANDFIELD v. BANDFIELD.

Supreme Court of Michigan

May 17, 1898

Error to circuit court, Ionia county; Frank D. M. Davis, Judge.

Action by Emma S. Bandfield against Charles A. Bandfield.From a judgment sustaining a demurrer to the declaration, plaintiff brings error.Affirmed.

R. A. &amp W. E. Hawley, for appellant.

F. C Miller, for appellee.

GRANT C.J.

The 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 the negative in the case of Wagner v. Carpenter 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 circuit judge, for the reason that the wife could not maintain the suit against her husband.The wife 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 opinion was written.But the sole and identical question there involved 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. Ann. St. �� 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 conferring rights upon a married woman over her separate property not conferred by the common law, have thus far, without exception, denied the right of a wife to sue her husband for personal wrongs committed during coverture.No such right is conferred 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 of the common law.Courts should not be left to construction to sustain such bold innovations.The rule is thus stated in 9 Bac. Abr. tit."Statutes," I, p. 245: "In all doubtful matters, and when the expression is in general 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 statutes are not presumed to make any alteration of the common law, further or otherwise than the act expressly declares.Therefore in all general matters the law presumes the act did not intend to make any alteration; for, if the parliament had that design, they should have expressed it in the act."

The result of plaintiff's contention would be another step to destroy the sacred relation 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 on the ground of public policy.This court has gone no further than to support the wife, under the married woman's act, in protecting her in...