Courtney v. Courtney

• Decision Date: 25 October 1938
• Docket Number: 27213.
• Citation: 87 P.2d 660,184 Okla. 395,1938 OK 538
• Parties: COURTNEY v. COURTNEY.
• Court: Oklahoma Supreme Court

87 P.2d 660

184 Okla. 395, 1938 OK 538

COURTNEY v. COURTNEY.

No. 27213.

Supreme Court of Oklahoma

October 25, 1938

Rehearing Denied Feb. 21, 1939.

Application for Leave to File Second Petition for Rehearing Denied March 7, 1939.

Syllabus by the Court.

1. Under the Constitution and Statutes of Oklahoma, a married woman may maintain an action to recover damages suffered from negligent as well as intentional wrongs inflicted upon her by her husband regardless of cohabitation.

2. Under the Constitution and Statutes of Oklahoma, a married woman may testify in her own behalf in a tort action instituted by her against her husband.

Appeal from District Court, Canadian County; Lucius Babcock, Judge.

Action by Lucille A. Courtney against R. G. Courtney, her husband to recover for injuries sustained while riding in his automobile. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Application for leave to file second petition for rehearing denied GIBSON, J., dissenting.

RILEY WELCH, CORN, and GIBSON, JJ., dissenting.

Rittenhouse, Webster & Rittenhouse, of Oklahoma City, for plaintiff in error.

J. A. Rinehart, of El Reno, and W. P. Morrison, of Oklahoma City, for defendant in error.

DAVISON Justice.

This action was brought by the defendant in error, as plaintiff, to recover damages against the plaintiff in error, or defendant, for personal injuries that she received when the defendant's automobile in which she was riding with him, overturned on Northwest 10th Street in Oklahoma City.

The defendant was driving said auto and the alleged cause of the accident is his negligence in the operation of same. The parties are husband and wife and were living together as such when the accident occurred and the case was tried.

At the trial, after the jury was empanelled, an objection was interposed on behalf of the defendant to the introduction of any evidence on the ground that the opening statement of the plaintiff's counsel revealed that she was the wife of the defendant and for that reason not entitled to maintain the action. This objection was overruled and exception taken to said ruling. Thereupon the trial proceeded and when the plaintiff was called as a witness in her own behalf the defense counsel objected to her being allowed to testify, on the ground that being the defendant's wife, she was not a competent witness. The trial court overruled this objection, allowed an exception to said ruling and proceeded to hear the testimony of the plaintiff. Her testimony is the only evidence that was introduced in her behalf concerning the negligence of the defendant.

At the close of the plaintiff's evidence the defense counsel demurred thereto but said demurrer was overruled and exception taken to said ruling. When the evidence was all in the defense counsel moved for a directed verdict but this motion was also overruled and exception thereto allowed.

Upon the submission of the cause to the jury, a verdict was returned in favor of the plaintiff and the judgment of the trial court was rendered in accordance therewith.

Thereafter, the defendant filed a motion for a new trial and after the motion was overruled perfected his appeal to this court. Many alleged errors of the trial court are contained in the petition in error, but the only questions submitted to this court for adjudication are the following: (1) Can the plaintiff being the wife of the defendant and living with him at all times involved, maintain this action; and (2) can the plaintiff be a competent witness in this tort action against her husband?

The plaintiff's counsel submit our decision in the case of Fiedler v. Fiedler, 42 Okl. 124, 140 P. 1022, 52 L.R.A.,N.S., 189, as determinative of the first question involved and argue that there is no legal distinction between the rights of a wife to sue for a wilful injury and her right to sue for a negligent injury. Defense counsel contend that the Fiedler Case is distinguishable from the present one on the ground, first, that it involved a malicious assault and battery, and for the further reason that the parties to that action had been divorced. Though the present case involves a negligent tort rather than a wilful one between parties whose marital relations have not been disturbed, we find no basis imbedded in the law for applying herein legal principles different from those which controlled the Fiedler Case. Since the underlying reason advanced by the majority of the courts for holding that an action for tort cannot be maintained between spouses is the so-called substantive principle that no cause of action accrues because of the unity of their persons and, because of the further fact that no procedural prohibition upon the maintenance of an action by one spouse without the joinder of the other exists in this state to be removed by a dissolution of the marriage, it is immaterial that the spouses are not cohabiting at the time the action is brought. See, 43 Harv.L.Rev. 1032, 1042; Clark v. Clark, 2 Cir., 11 F.2d 871; Main v. Main, 46 Ill.App. 106; Abbott v. Abbott, 67 Me. 304, 24 Am.Rep. 27; Libby v. Berry, 74 Me. 286, 43 Am.Rep. 589; Bandfield v. Bandfield, 117 Mich. 80, 75 N.W. 287, 40 L.R.A. 757, 72 Am.St.Rep. 550; Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S.W. 628, L.R.A.1916B, 881, Ann.Cas.1917C, 901; Schultz v. Christopher, 65 Wash. 496, 118 P. 629, 38 L.R.A.,N.S., 780; Sykes v. Speer, Tex.Civ.App., 112 S.W. 422. This view is aptly expressed in the latter case by the following language [page 424]: "That a wife cannot sue her husband for torts committed by him against her person * * * is not an open question * * *. The reason for this holding is that there is no liability, not merely that the wife is incapable of maintaining an action against her husband; for even if she should be divorced on the next day after the injuries were inflicted, and even if the result of the injuries should be perpetuated long after the time of their infliction and after her rights as a feme sole had been fully restored, still she would not be allowed a recovery for such injuries."

Whatever cause of action the wife has accrues when the wrong is committed; and the fact of divorce subsequently granted cannot make that a cause of action which was not so at the time the legal injury occurred, and conversely such a fact will not, of course, destroy a cause of action where one arose at the time of the injury.

Nor can the difference in the nature of the torts committed be considered seriously from a legal standpoint. See Wait v. Pierce, 191 Wis. 202, 209 N.W. 475, 210 N.W. 822, 48 A.L.R. 276, 286; Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479; Woltman v. Woltman, 153 Minn. 217, 189 N.W. 1022; 43 Harv.L.Rev. 1032, 1046, and authorities there cited. In the case of a negligent tort, the wife has suffered a wrong for which the law should provide a remedy, just as in the case of wilful tort. See 24 Mich.L.Rev. 618; 10 Minn.L.Rev. 439; 4 Ford.L.Rev. 475, 479; 11 Minn.L.Rev. 79; Bushnell v. Bushnell, 103 Conn. 583, 131 A 432, 44 A.L.R. 785. There is no element to distinguish one wrong from the other in the determination of whether a remedy therefor should be allowed and we find that the courts have made no valid distinction in such determination. See 26 Col.L.Rev. 895, 7 Tenn.L.Rev. 63, 65; Madden on Domestic Relations, 223. But, see the dissenting opinion in Katzenberg v. Katzenberg, 183 Ark. 626, 627, 37 S.W.2d 696, 697, which appears never to have been followed. In Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L.R.A.,N.S., 185, Ann.Cas.1915D, 70, the following question was formulated [page 891]: "If [the wife] may sue * * * for a broken promise, why may she not sue * * * for a broken arm?" We say that if the wife is to be allowed a civil action against her husband for a broken arm, how can it be defeated merely by the absence of intent or malice on the part of her wrong-doing spouse?

In anticipation of our perception that any distinction between the case at bar and Fiedler v. Fiedler, supra, is more apparent than real, the defense counsel charge the decision in that case with being contrary to the numerical weight of authority and for that reason they say that it should be examined closely to determine whether or not it shall be continued in force. It must be conceded that this court is among the pioneering minority in allowing a tort action between husband and wife, but there are many reasons why this fact does not seem to us unfavorable. When the historical background, as well as the wording of legislative enactments on the subject of married women's rights in the states whose decisions comprise the majority of judicial opinion on the subject is examined together with the reasons given for refusing one spouse a tort action against the other, the weight of such authorities diminishes under the scrutiny of calculating logic and reason. The weight of authority to which we refer and to which our attention has been directed is that a married person has been refused a cause of action in damages against his or her spouse for a personal tort in the Federal Courts (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, Spector v. Weisman, 59 App.D.C. 280, 40 F.2d 792; Clark v. Clark, supra); in California ( Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A.,N.S., 699); in Delaware (Plotkin v. Plotkin, 2 W.W.Harr. 455, 125 A. 455); in Georgia (Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25); in Indiana ( Blickenstaff v. Blickenstaff, 89 Ind.App. 529, 167 N.E. 146); In Iowa (Heacock v. Heacock, 108 Iowa 540, 79 N.W. 353, 75 Am.St.Rep. 273); in Kentucky ( Dishon's Adm'r v. Dishon's Adm'r, 187 Ky. 497, 219 S.W. 794, 13 A.L.R. 625); in Louisiana ( ...