Boutell v. Shellaberger

• Decision Date: 02 March 1915
• Citation: 174 S.W. 384,264 Mo. 70
• Parties: MINNIE A. BOUTELL v. EDWARD F. SHELLABERGER, Appellant
• Court: Missouri Supreme Court

174 S.W. 384

264 Mo. 70

MINNIE A. BOUTELL v. EDWARD F. SHELLABERGER, Appellant

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Jackson Circuit Court. -- Hon. James E. Goodrich, Judge.

Reversed.

Marley & Marley for appellant.

(1) The husband can only be jointly held with his wife, for the simple or personal torts of the wife. Merrill v. St Louis, 83 Mo. 244; Flesh v. Lindsay, 115 Mo. 1; Writ v. Dinan, 44 Mo.App. 589; Bruce v Bombeck, 79 Mo.App. 231; Rowe v. Smith, 45 N.Y 230; Ball v. Bennett, 21 Ind. 427; Mahoney v. Roberts, 86 Ark. 130; Roberts v. Lisenbee, 86 N.C. 136; Woodmen v. Barnes, 46 Vt. 332; Keen v. Hartman, 48 Pa. St. 497; Komisky v. Goldberg, 44 Ark. 401; Wolf v. Lozier, 68 N. J. L. 103; Kowing v. Manly, 49 N.Y. 198; Schuler v. Henry, 42 Colo. 367; Strouse v. Leipf, 101 Ala. 433; Curtis v. Dineen, 4 Dak. 245; Graham v. Tucker, 56 Fla. 307; Braunnell v. Carr, 76 Vt. 174; Edwards v. Wissinger, 65 S.C. 161; Prentis v. Paisley, 25 Fla. 927. (a) The husband and wife must be sued jointly. Flesh v. Lindsay, 115 Mo. 1; Merrill v. St. Louis, 83 Mo. 244; Baker v. Young, 44 Ill. 42; Ball v. Bennett, 21 Ind. 427; Enders v. Beck, 18 Iowa 86; Heckle v. Lurvey, 101 Mass. 344; Flannigan v. Tiner, 53 Barb. 587; Marshall v. Oakes, 51 Me. 308; Wheeler S. M. Mfg. Co. v. Heil, 115 Pa. St. 487; Mahoney v. Roberts, 83 Ark. 130; Smith v. Taylor, 11 Ga. 20; Carlton v. Haywood, 49 N.H. 314; Dicey on Parties to Actions, rule 107. (b) The husband's liability at common law, for the wife's simple or personal torts does not rest upon the fact that in contemplation of law, he is the party guilty of the tortuous act. Kominsky v. Goldberg, 44 Ark. 402; Kowing v. Manley, 49 N.Y. 192; Rodke v. Schmidt, 30 Ind.App. 213; Capelle v. Powell, 112 E. C. L. 744; Schuler v. Henry, 42 Colo. 367; Drury v. Dennis, Yelv. 106. (c) A judgment against the husband alone, for the wife's torts, will be reversed. Flesh v. Lindsay, 115 Mo. 20; Gruen v. Bamberger, 11 Mo.App. 261; Wisdom v. Newberry, 30 Mo.App. 241; Gage v. Reed, 15 Johns. 403; Gray v. Thatcher, 4 Ala. 136; Grennlief v. Beebe, 80 Ill. 520; Mahoon v. Colment, 51 Miss. 60; Bacon v. Bevan, 44 Miss. 293; Roberts v. Lisenbee, 86 N.C. 136; Hutchison v. Henson, 7 Term. Rep. 348; Dure v. Thorne, Alyn. 72; Angel v. Felton, 8 Johns. 149; Platner v. Patchin, 19 Wis. 333; Dicey on Parties to Actions, rule 69. (2) The husband is not liable for the torts committed by his wife in the management of her separate estate. Staley v. Ivory, 65 Mo. 74; Gillies v. Lent, 2 Ab. Prac. (N. S.) 455; Quilty v. Battie, 135 N.Y. 209; Peak v. Lemon, 1 Lansing, 297; Fisk v. Bailey, 51 N.Y. 150; Baum v. Mullen, 47 N.Y. 577; Rowe v. Smith, 45 N.Y. 230; Lansing v. Holdrige, 58 How. Pr. 449; Eagle v. Swayze, 2 Daly, 140; Magan v. Peck, 111 N.Y. 401; Choen v. Porter, 66 Ind. 196; Wolff v. Lozier, 68 N. J. L. 103; Eliazon v. Draper, 8 How. Pr. 395; Graham v. Tucker, 56 Fla. 307; Mayhem v. Porter, 103 Ind. 328; Russell v. Phelps, 73 Vt. 393; Gustin v. Westenberger, 224 Pa. St. 455; Schuler v. Henry, 94 P. 360; Shane v. Lyons, 172 Mass. 199; Walker v. Swayze, 3 Abb. Pr. 136; Hinds v. Jones, 48 Me. 349; Martin v. Robson, 65 Ill. 137; Greenlief v. Beebe, 80 Ill. 520; Madden v. Gilmer, 40 Ala. 637; Mahoon v. Colment, 51 Miss. 60; Bacon v. Bevan, 44 Miss. 293; Harvey v. Johnson, 133 N.C. 352; Pomeroy on Code Remedies, 222; Bliss on Code Pleadings, sec. 86. (3) The Enabling Act completely emancipates the married woman. Kirkpatrick v. Pease, 202 Mo. 490; Lyons v. Reynolds, 184 Mo. 693; Bank v. Hageluken, 165 Mo. 449. (4) Rosa Shellaberger, in the management of her own property, being as a stranger to her husband, to hold him liable in this action would be a taking of his property without due process of law. Camp. v. Rogers, 44 Conn. 296; Railroad v. Parsons, 100 Ala. 666; Ziegler v. Railroad, 58 Ala. 598; Railroad v. Outcault, 2 Colo.App. 398; Railroad v. Vaughn, 3 Colo.App. 465; Wadsworth v. Railroad, 18 Colo. 611; Catril v. Railroad, 2 Idaho, 578; Railroad v. Parks, 32 Ark. 131; Bielenberg v. Railroad, 8 Mont. 271; Jensen v. Railroad, 6 Utah, 253; East Kingston v. Towle, 48 N.H. 57; Jolliffe v. Brown, 14 Wash. 159; Railroad v. Lackey, 78 Ill. 56; Bowe v. The Reflector Co., 36 Hun, 407; Sunberg v. Babcock, 61 Iowa 602; Coster v. Water Co., 18 N.J.Eq. 55; Madland v. Benland, 24 Minn. 379; Railroad v. Polt, 34 U.S. Sup. Rep. 301; Railroad v. Wynne, 224 U.S. 354; Adair v. U.S. 208 U.S. 161; Dewey v. Des Moines, 173 U.S. 202; Railroad v. Cleveland, 204 U.S. 117; Smith v. Bivens, 56 F. 353; Shaver v. Railroad, 71 F. 932; Johnson v. Hudson, 96 Tenn. 630. (5) And is also a denial of the equal protection of the law. Wadsworth v. Railroad, 18 Colo. 611; Railroad v. Westby, 178 F. 621; Sams v. Railroad, 174 Mo. 53; Cotting v. Stock Yards Co., 183 U.S. 102; Railroad v. Swanger, 157 F. 783; Michigan Tax Cases, 185 F. 638; Yick Wo v. Hopkins, 118 U.S. 366; Railroad v. Ellis, 165 U.S. 151. (6) The ordinance through which the plaintiff attempts to fix a liability on the appellant here, is void, as no civil liability between persons can be created by a municipal ordinance. Fath v. Railroad, 105 Mo. 537; Moran v. Pullman Co., 134 Mo. 641; Eisenberg v. Railroad, 33 Mo.App. 85; Sluder v. Railroad, 189 Mo. 113.

Brewster, Kelly, Brewster & Buchholz and Hogsett & Boyle for respondent.

(1) Plaintiff is entitled to recover from defendant for injuries caused by the tort of defendant's wife. (a) A person injured by the tort of the wife in the management of propery owned by her, has a cause of action against both the husband and the wife for such tort. Flesh v. Lindsay, 115 Mo. 1; Nichols v. Nichols, 147 Mo. 408; Taylor v. Pullen, 152 Mo. 434; Bruce v. Bombeck, 79 Mo.App. 236; Merrill v. St. Louis, 83 Mo. 244, 12 Mo.App. 466. (b) The plaintiff having a cause of action against both Rosa R. Shellaberger and Edward F. Shellaberger, and being entitled by law to one satisfaction therefor, had the right to bring suit thereon jointly against both or against either, as plaintiff might think proper. Sec. 1734, R. S. 1909; Badgley v. St. Louis, 149 Mo. 122; Noble v. Kansas City, 95 Mo.App. 171; Hutchinson v. Safety Gate Co., 247 Mo. 110; Winn v. Railroad, 245 Mo. 412. (2) The defendant by demanding a trial before his wife could be summoned into court, waived the right to object to her nonjoinder. Mancuso v. Kansas City, 74 Mo.App. 138; State ex rel. v. Chemical Works, 249 Mo. 721; Johnson v. United Railways, 247 Mo. 358; White v. Railroad, 202 Mo. 561; Hanson v. Neal, 215 Mo. 270; Hudson v. Wright, 204 Mo. 424; Paddock v. Somes, 102 Mo. 235; Aley v. Railroad, 211 Mo. 460; Schulenburg v. Werner, 6 Mo.App. 296. (3) The judgment in this case does not deprive defendant of his property without due process of law. Hulett v. Railroad, 145 Mo. 35; State ex inf. v. Shepher, 177 Mo. 243; State ex rel. v. Mercantile Co., 184 Mo. 183; St. Joseph v. Truckenmiller, 183 Mo. 16; Holmes v. Murray, 207 Mo. 418; Matthews v. Railroad, 121 Mo. 298, 165 U.S. 1; Levick v. Norton, 51 Conn. 461; Bidwell v. Murray, 40 Hun, 190; Darlington v. New York, 31 N.Y. 164; Champaign County v. Church, 62 Ohio St. 318; Bertholf v. O'Reilly, 74 N.Y. 509; Dugan v. Neville, 49 Ohio St. 462; Mullen v. Peck, 49 Ohio St. 447; Railroad v. Zernecke, 183 U.S. 582; Clark v. Russell, 97 F. 900. (4) Defendant has not been denied the equal protection of the laws. State v. Brodnax, 228 Mo. 44; Matthews v. Railroad, 121 Mo. 298; Railroad v. Matthews, 165 U.S. 1; Campbell v. Railroad, 121 Mo. 340; Adams v. Railroad, 138 Mo. 242; Insurance Co. v. Railroad, 149 Mo. 165; Hines v. Railroad, 86 Mo. 629; Kingsberry v. Railroad, 156 Mo. 379. (5) The violation of the ordinance requiring a competent elevator operator, constituted actionable negligence. Sluder v. Railroad, 189 Mo. 113; Jackson v. Railroad, 157 Mo. 621; Wendler v. Furnishing Co., 165 Mo. 527; Hirst v. Real Estate Co., 169 Mo. 194; Purcell v. Shoe Co., 187 Mo. 289; Johnson v. Railroad, 203 Mo. 400; Holland v. Railroad, 210 Mo. 350; Laun v. Railroad, 216 Mo. 578; King v. Railroad, 211 Mo. 1; Stafford v. Adams, 113 Mo.App. 721; Steinmann v. Transit Co., 116 Mo.App. 673; Stotler v. Railroad, 200 Mo. 120; Shellaberger v. Fisher, 143 F. 937.

BLAIR, J. Woodson, J., concurs in separate opinion.

OPINION

BLAIR, J.

Respondent lived with her minor son in an apartment house in Kansas City, and the son was injured by the alleged negligence of the operator of an elevator maintained in the building by the owner for the use of the occupants. Appellant's wife owned the building. Under our statute it was her statutory separate property, having been acquired in 1899, and was leased and managed by her, through her agent, independently of her husband.

This action for damages was begun against appellant and his wife. No service having been had upon the wife the case proceeded to judgment against the husband alone and he appealed.

This record presents the question whether a husband is liable for the torts of his wife committed by her in the management of her separate real property, the husband neither being present, directing nor otherwise participating therein.

This question has been passed upon in many jurisdictions. In practically all of them it is held that in circumstances like those in this case the husband is not liable. The question has never been squarely decided by this court.

The decisions in other jurisdictions fall into several classes First, those under statutes expressly exempting the husband from liability. These are not in point here because founded upon such statutes. Second, those which hold that the effect of statutes, substantially like ours, affecting married women, has been to sweep away all liability of the husband for the wife's torts. Third, those holding...