Brawner v. Brawner

• Decision Date: 14 September 1959
• Docket Number: No. 46319,46319
• Parties: Marvin E. BRAWNER, Appellant, v. Mattie BRAWNER, Respondent.
• Court: Missouri Supreme Court

Page 808

327 S.W.2d 808

Marvin E. BRAWNER, Appellant, v. Mattie BRAWNER, Respondent.

No. 46319.

Supreme Court of Missouri, En Banc.

Sept. 14, 1959.

Joseph Langworthy, Pacific, for plaintiff-appellant.

Fred B. Whalen, James R. O'Connor, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.

STORCKMAN, Judge.

This is an action by a husband against his wife to recover damages in the sum of $30,000 for personal injuries alleged to have been caused by the negligence of the wife in the operation of her automobile. The trial court dismissed plaintiff's petition holding that the plaintiff husband could not maintain an action against his wife for a personal tort. The plaintiff has appealed.

The parties are and were at the time of the alleged injuries husband and wife, having been married for more than forty-seven years. The negligence charged is that the defendant failed to set the brakes properly when she parked her automobile on a private drive of the premises owned jointly by the parties, thereby permitting the automobile to roll backwards and strike and injure the plaintiff. The question presented is whether a husband can maintain a civil action for damages against his wife for personal injuries resulting from negligent acts committed by the wife during the marriage.

It is recognized by the parties that at common law neither the husband nor the wife could maintain a civil action against the other for a personal tort. Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382, and Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114, are the leading cases construing the Married Women's Act of 1889 and holding that it did not have the effect of permitting a wife to maintain a civil action against her husband for a personal tort. The first case was an action for false imprisonment and the latter was based on the negligent operation of an automobile. The plaintiff states that it may not be necessary to overrule Rogers and Willott in order to permit the maintenance of this action because there is stronger authority both statutory and judicial for the husband's right to sue. However, the plaintiff urges that Rogers and Willott should be overruled if necessary to permit the maintenance of the action and that to do otherwise would violate plaintiff's rights under the Constitution of Missouri and the Constitution of the United States.

The statutes upon which the plaintiff mainly relies are Sections 451.250, 451.290, 507.010 and 537.040 RSMo 1949, V.A.M.S. As we view the legal problem presented, it is unnecessary to construe again or discuss at length the effect of the Married Women's Act. The reason is that it was the wife and not the husband that was under coverture at common law.

Coverture is a term used to describe the condition or state of a married woman whereby the civil existence of the wife was for many purposes merged with that of her husband. Bouv.Law Dict., Rawles Third Revision. In Osborn v. Horine, 19 Ill. 124, 125, the Supreme Court of Illinois described coverture as follows: 'The very term coverture implies that she is, during its continuance, under the protection of her husband, and the common law will not allow her to do anything which may prejudice her rights or interests, without his advice, consent and approval.' The general purpose of the Married Women's Act and related statutes was to relieve the wife from this condition of civil dependency and disability, and to free the husband from liability for his wife's torts.

In this case we are not concerned with the right of a married woman to maintain an action but with her liability and legal capacity to be sued by her husband in a negligence action. If public policy does not prohibit such a suit, authority to maintain it is clearly permitted by section 537.040 without resort to the derivative sections of the Married Women's Act to which reference has been made. Section 537.040 provides: 'For all civil injuries committed by a married woman, damages may be recovered against her alone, and her husband shall not be responsible therefor, except in cases where, under the law, he would be jointly responsible with her, if the marriage did not exist.' If this section does not create, it at least recognizes the liability of a married woman for her torts; it also absolves the husband of responsibility for the wife's torts based on the marriage relation alone. State ex rel. McCrory v. Bland, 355 Mo. 706, 197 S.W.2d 669, 168 A.L.R. 929.

In the present state of the law, one spouse is not permitted to maintain this type of action against the other because of the common-law rule of immunity. Section 1.010 RSMo 1949, V.A.M.S. This is true notwithstanding the recent cases of Hamilton v. Fulkerson, Mo., 285 S.W.2d 642, and Ennis v. Truhitte, Mo., 306 S.W.2d 549, in which cases it was held that the rule did not apply because of the special circumstances of those cases. The Married Women's Act has been construed on several occasions as not authorizing actions for personal torts between spouses. It has not been demonstrated that this court is in a better position to interpret the legislative intent of these statutes than the courts that decided the Rogers case in 1915 and the Willott case in 1933. It may well be that this court would reach a different conclusion if it were construing similar statutes enacted in a modern day setting; but we are not at liberty to say that these prior decisions do not correctly interpret the legislative intent of 1889. We next take up the plaintiff's contention that this court should declare that the public policy of the state no longer supports the rule, thereby disapproving and overruling Rogers, Willott, and similar cases.

The plaintiff urges that the judgment of dismissal is contrary to the public policy of the state as expressed in the Motor Vehicle Responsibility Law, Ch. 303, RSMo 1949, V.A.M.S. He contends the fact that the law contains no exclusion for actions between spouses is indicative of a legislative trend and of a changed public policy. This contention overlooks the nature of the law. Its purpose is to provide greater assurance that liabilities arising out of the ownership, maintenance or use of motor vehicles will be discharged. It does not purport to create any new liability and does not affect the policy here involved.

While a precise definition of the term public policy presents difficulty, it is generally said to be that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good; it is synonymous with the 'policy of the law' and 'the public good'. Dille v. St. Luke's Hospital, 355 Mo. 436, 196 S.W.2d 615, 620(2). The definition and effect of the term is also extensively considered and discussed in In re, rahn's Estate, 316 Mo. 492, 291 S.W. 120, 122, 51 A.L.R. 877, certiorari denied 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325.

Both statutes and judicial decisions have a bearing in ascertaining the public policy of a state, but statutes are the very highest evidence of public policy and binding on the courts. Reed v. Jackson County, 346 Mo. 720, 142 S.W.2d 862, 865(1), certiorari denied Jackson Co. v. Reed, 311 U.S. 716, 61 S.Ct. 397, 85 L.Ed. 466; State on Inf. of Dalton v. Miles Laboratories, Inc., 365 Mo. 350, 282 S.W.2d 564, 574(15); State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 529(40). The general assembly has legislated extensively with regard to marriage, the marital relation, and family rights and responsibilities. It has removed a number of common-law disabilities such as incompetency of a husband or wife to testify in a criminal or a civil case to which the other is a party although the statute in each instance preserves the privilege of their confidential communications. Sections 491.020 and 546.260. While the legislature has been active in the general field of marital relations, it has not seen fit to change the construction of the Married Women's Act made by the Rogers and Willott decisions and the matrimonial immunity declared by those cases and referred to in Rice v. Gray, 225 Mo.App. 890, 34 S.W.2d 567.

Where the general assemply has changed one aspect of a common-law rule, the courts have generally refrained from undertaking any modification of the remainder of the rule. See Cummings v. Illinois Central R. Co., 364 Mo. 868, 269 S.W.2d 111, 121, 47 A.L.R.2d 513, wherein this court stated: 'Thus, the legislature has seen fit to change the common law rule in one respect. In our view, if any other changes are to be effected--if dying declarations are to be made admissible in criminal cases other than homicide and abortion (and similar) cases, or in certain types of civil cases or in civil cases generally--such changes should be made by the legislature, the law-enacting branch of government, rather than by the judiciary, the law-interpreting branch.' See also State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845, 848-849.

The proper ambit of the court's authority on an issue of this kind is both important and difficult to delineate. Mr. Benjamin N. Cardozo, a judge of the highest appellate court of New York State and later a justice of the Supreme Court of the United States, is recognized as one of the great students and authorities on the development and function of the common law. In his treatise on The Nature of The Judicial Process, Judge Cardozo made these observations concerning the role of the judge as a legislator: 'We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance.' p. 103. 'Each [the judge and the legislator] indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law.' p. 113. '* * * the power to declare the law carries with it the power, and within limits the duty, to make law when mone exists, * * *.' p 124. ...