Conley v. Conley

• Decision Date: 26 October 1932
• Docket Number: 6937.
• Parties: CONLEY v. CONLEY.
• Court: Montana Supreme Court

15 P.2d 922

92 Mont. 425

CONLEY v. CONLEY.

No. 6937.

Supreme Court of Montana

October 26, 1932

Rehearing Denied Nov. 21, 1932.

Appeal from District Court, Powell County; George B. Winston, Judge.

Action by Hildah Conley against Frank Conley. From judgment dismissing plaintiff's complaint on demurrer, plaintiff appeals.

Affirmed.

E. G Toomey, of Helena, and T. J. Walker, of Butte, for appellant.

R. F Gaines, of Butte, for respondent.

CALLAWAY C.J.

The plaintiff wife brought this action to recover damages from the defendant husband for personal injuries sustained by her caused, she alleges, by the negligence of defendant's chauffeur, while she was riding, at defendant's invitation, as a passenger in defendant's automobile. A demurrer to the complaint was sustained, and, plaintiff refusing to amend, judgment went against her. She has appealed from the judgment.

The question now presented, may one spouse sue the other for a personal tort, is one of first impression in this state. In order to answer it correctly it is necessary to recall familiar rules of the common law as a predicate to the proper construction of the statutes relied on by counsel for plaintiff.

By the common law the husband at the time of the marriage became entitled to the wife's personal property, and he was entitled to her earnings during coverture; likewise to the wife's chattels real as in the nature of an executory gift; also to a freehold in the wife's real estate--to an estate for life therein and to its beneficial enjoyment. Schouler on Marriage, Divorce, Separation, and Domestic Relations, §§ 145 et seq., 186, 187.

The legal existence of the wife during coverture was merged in that of the husband. Generally speaking, "the wife was incapable of making contracts, of acquiring property or disposing of the same without her husband's consent. They could not enter into contracts with each other, nor were they liable for torts committed by one against the other." Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921; 30 C.J. 955; 13 R. C. L. 1395.

With certain exceptions, not material here, a married woman "cannot sue at law, unless it be jointly with her husband, for she is deemed to be under the protection of her husband, and a suit respecting her rights must be with the assent and co-operation of her husband. (Mitf. Equity Pl., by Jeremy, 28; Edwards on Parties in Equity, 144, 153; Calvert on Parties, ch. 3, sec. 21, pp. 265, 274; 6 How.)" Barber v. Barber, 21 How. 582, 589, 16 L.Ed. 226.

"For injuries suffered by the wife in her person or property, such as would give rise to a cause of action in favor of a feme sole, a suit could be instituted only in the joint name of herself and husband. 1 Cooley, Torts (3d Ed.) 472, and cases cited in the note." Thompson v. Thompson, supra. At common law neither spouse could sue the other.

In the middle of the last century the common-law doctrine, an outgrowth of feudalism, which merged the wife's legal personality and property in the husband, gave way before the impact of modern thought, couched in statutes familiarly known as the Married Women's Acts. The primary purpose of these acts was to free the wife from the husband's domination in property matters; to accomplish that it was requisite to place the wife upon an equal footing with the husband as to the ownership, control, and enjoyment of property, and as to contractual rights in general, with an equal right to resort to the courts. The intention was, in these respects, to place husband and wife upon a parity. The aim, says Professor Schouler, was "to secure to the wife the independent control of her own property, and the right to contract, sue and be sued, without her husband, under reasonable limitations." Id., § 8.

The first territorial Legislature modified the common-law rule to some extent. Sections 7 and 8 of the first chapter of the Statutes of Montana (Bannack Laws, p. 43) read as follows: "Sec. 7. When a married woman is a party, her husband shall be joined with her, except when the action concerns her separate property, she may sue alone; when the action is between her and her husband, she may sue or be sued alone." "Sec. 8. If a husband and wife are sued together, the wife may defend for her own right."

In 1872 the legislative assembly passed an act exempting the property of a married woman from the debts and liabilities of her husband, unless for necessary articles procured for the use and benefit of herself and children under the age of 18 years, upon her filing a separate list of her property in the office of the county clerk. Revised Statutes 1872, p. 521.

In 1874 she was given the right to transact business in her own name by filing a declaration setting forth the nature of the business she intended to engage in and that she would be responsible in her own name for all the debts contracted by her in the conduct of the business. The law provided that, after filing the declaration, everything pertaining to the business should belong exclusively to her, and that she should not be liable for any debts of the husband; she was allowed all the privileges and made liable for all the legal processes provided by law against debtors and creditors. She was made responsible for the maintenance of her children. The husband was relieved of responsibility for any debts she might contract in the business unless his special consent be given in writing. Laws of Montana 1874, p. 93.

In 1887 the Legislature (Comp. St. 1887, div. 5, §§ 1439-1441) enacted "An Act to declare and protect the legal and personal identity of married women," repealing all laws or portions of laws inconsistent therewith, and declaring "that from and after the passage of this Act, women shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all of her rights as a woman, which her husband does as a man; and for any injury sustained to her reputation, person, property, character, or any material right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband can appeal in his own name alone. ***" (Section 1439.)

Chapter 3, tit. 1, pt. 3, div. 1, of the Civil Code of 1895 brought to our statutory law sections 210 to 257, inclusive, which supplanted all prror statutes on the subject, and these with the exception of those relating to dower now appear in the Revised Codes of 1921 as sections 5782 to 5812, inclusive, without amendment. The present statutes insure to the wife such property as she may own at the marriage and acquire afterwards, and give her the power to protect, control, and dispose of the same in her own name free from the interposition of her husband. Sections 5792, 5810, 5811. The spouses may hold real and personal property together, jointly, or in common. Section 5789. Either may enter into any engagement or transaction with the other or with any other person respecting property which either might, if unmarried, subject in transactions between themselves to the general rules which control the actions of persons occupying confidential relations with each other. Section 5786, Id. At this point it is apt to remark that throughout the chapter, unless it be in sections 5791 and 5809, quoted hereafter, there is not seen the slightest intention to disturb the marital unity except as to property rights; on the contrary, the maintenance of the family is regarded with the highest solicitude.

Marriage is a personal relation arising out of a civil contract. Section 5695. Husband and wife contract toward each other obligations of mutual respect, fidelity, and support. Section 5782. The husband is the head of the family. Section 5783. He may choose any reasonable place or mode of living, and the wife must conform thereto. Section 5783. He is bound to provide, according to his means and condition in life, for her maintenance and support; if he is unable to do so she must assist him as far as she is able. Section 5784. Neither husband nor wife has any interest in the property of the other, except as is made necessary by their mutual obligations of support, and neither can be excluded from the other's dwelling. Sections 5784, 5785. Labor performed by a married woman for a person other than her husband and children shall, unless there is a written agreement to the contrary, be presumed to be performed on her separate account. Section 5797. Husband and wife cannot, by any contract with each other, alter their legal relation, except as to property and except that they may agree, in writing, to an immediate separation, and may make provision for the support of either of them and of their children during such separation. Section 5787. Neither husband nor wife, as such, is answerable for the acts of the other or liable for the debts contracted by the other; provided, however, that the expenses for necessaries of the family and of the education of the children are chargeable upon the property of husband and wife, or either of them, and in relation thereto they may be sued jointly or separately. Section 5790.

Especially notable is section 5803, which declares: "The property rights of the husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations contrary thereto."

None of the foregoing statutes "takes from the husband his marital rights, except as they pertain to property, and none of them relieves him from responsibilities, except as they relate to the wife's contracts and debts. *** So far from an intent having been manifested on the part of the legislature to regard the family as simply a voluntary...