Conley v. Conley

• Citation: 92 Mont. 425
• Decision Date: 21 November 1932
• Docket Number: No. 6937.,6937.
• Parties: CONLEY v. CONLEY.
• Court: United States State Supreme Court of Montana

92 Mont. 425

CONLEY
v.
CONLEY.

No. 6937.

Supreme Court of Montana.

Oct. 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 identityof 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...