Benevides v. Kelly
| Decision Date | 10 February 1960 |
| Docket Number | No. 9970,9970 |
| Citation | 90 R.I. 310,157 A.2d 821 |
| Parties | Lillian BENEVIDES v. Leo KELLY. Ex. |
| Court | Rhode Island Supreme Court |
John Quattrocchi, Jr., Providence, for plaintiff.
Carroll & Dwyer, Joseph G. Miller, John G. Carroll, Providence, for defendant.
This action of trespass on the case for negligence arose out of an accident occurring on February 11, 1956, in which the plaintiff, while a passenger in the defendant's automobile, was injured allegedly as a result of his negligence. Subsequent to the accident the parties were married and at the time suit was instituted, January 16, 1958, were living together as husband and wife. The defendant filed a special plea to the plaintiff's declaration, praying judgment primarily on the ground that he and the plaintiff were husband and wife at the time of the bringing of the suit. The plaintiff filed a replication setting out that the action ought not be barred, first, because the tort occurred prior to her marriage to the defendant, and second, because an insurer is the party defendant. The defendant's demurrer to this pleading was sustained, and the case is before us on the plaintiff's exception to such ruling.
At common law neither spouse could maintain an action against the other. Comstock v. Comstock, 106 Vt. 50, 169 A. 903; Patenaude v. Patenaude, 195 Minn. 523, 263 N.W. 546. It is not necessary to a decision in this case to discuss the philosophy underlying this common-law doctrine. It suffices to say that the validity, if any, of the doctrine was based on the concept of the identity of husband and wife in the unity of marriage and on the basis that public policy required that such suits be barred as disruptive of the marital relationship. It is well established that, so far as it was applicable to the pertinent conditions and circumstances, the common law of England was imported into our jurisprudence. Bloomfield v. Brown, 67 R.I. 452, 25 A.2d 354, 141 A.L.R. 170. In Oken v. Oken, 44 R.I. 291, 117 A. 357, this court by clear implication accepted as the law of this state the common-law rule of interspousal immunity from suit.
It is clear that plaintiff here as a married woman has a separate property right in the cause of action which accrued to her by reason of defendant's tortious act prior to her marriage to him. This cause of action did not abate by reason of her marriage. General Laws 1956, § 15-4-1, provides, 'The real estate, chattels real and personal estate, which are the property of any woman before marriage, or which may become the property of any woman after marriage, or which may be acquired by her own industry, including damages recovered in suits or proceedings for her benefit and compensation for her property taken for public use, and the proceeds of all such property, shall be and remain her sole and separate property free from control of her husband.'
The word 'property' in the statute has been construed as having been used in a broad sense and to include a chose in action owned by the woman at the time of her marriage. Cooney v. Lincoln, 20 R.I. 183, 186, 37 A. 1031. Since it is concluded that the plaintiff has a separate property right in the cause of action, there remains the question whether she is without a remedy by reason of the common-law rule being still the law of this state.
The plaintiff's primary argument, as we understand it, is that G.L.1956, § 15-4-14, should be construed as having abrogated the common-law rule. That section reads, 'In all actions, suits and proceedings, whether at law or in equity, by or against a married woman, she shall sue and be sued alone.' The effect of statutes identical with or similar to § 15-4-14 has been considered by the courts of other jurisdictions with varying conclusions. In Bloomfield v. Brown, supra, 67 R.I. at page 461, 25 A.2d at page 358, this court stated, that because of the varied language used in married women's acts in other jurisdictions and the different constructions therein given to those acts, it would confine its consideration of the issue in that case to the effect, if any, of our own act and cases decided thereunder. We reaffirm our adherence to this policy.
From an examination of our own decisions, it would appear that this court has in the past been of the opinion that the common-law rule has been partially abrogated or modified by the statute. Some of the earlier members of this court in opinions written by them not long after the advent of the married women's acts into our statute law, in obiter dictum indicated that they were of the opinion that such legislation was intended to fully emancipate married women and give them the status of a feme sole.
In the case of McElroy v. Capron, 24 R.I. 561, at page 564, 54 A. 44, at page 46, the court said that the evident legislative intent in enacting such laws was to 'place a married woman upon practically the same basis or plane, with regard to legal rights and liabilities, as if she were sole and unmarried.' In Smith v. Smith, 20 R.I. 556, 40 A. 417, we held that a married woman under the statute could maintain an action against her husband for the conversion of her property. With reference to this statute the court stated that it was intended to give to married women entire control of their property, free from any control or interference by their husbands, and 'to place them in that respect on the same footing as single women in the management of their property.' In Cooney v. Lincoln, supra, the court held that a married woman could legally execute a general release to a third party tort feasor without being joined therein by her husband.
However, in Oken v. Oken, supra, where the action was brought by the wife for a tort committed during coverture, this court, speaking of what is now § 15-4-14, said, ...
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Klein v. Klein
...310(3); Corren v. Corren (1950, Fla.) 47 So.2d 774, 776; Wright v. Wright (1952, 85 Ga.App. 721) 70 S.E.2d 152, 154(1); Benevides v. Kelly (1960, R.I.) 157 A.2d 821, 824 (4, 5); cf. Shumway v. Nelson (1961, 259 Minn. 319) 107 N.W.2d 531, 532(1). Indeed, judicial interference in this sensiti......
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...that law has been modified by our General Assembly. Traugott v. Petit, R.I., 404 A.2d 77, 79 (1979); Benevides v. Kelly, 90 R.I. 310, 312-13, 316, 157 A.2d 821, 822, 824 (1960); Lombardi v. California Packing Sales Co., 83 R.I. 51, 54, 112 A.2d 701, 702 (1955). See also Bloomfield v. Brown,......
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Digby v. Digby, 77-108-A
...Oken v. Oken, 44 R.I. 291, 117 A. 357 (1922), even when the wrong causing the injuries occurs prior to marriage. Benevides v. Kelly, 90 R.I. 310, 157 A.2d 821 (1960). The rule has persisted in this state notwithstanding the adoption in the 19th century of statute law conferring property rig......