Culmer v. Wilson

• Decision Date: 26 March 1896
• Docket Number: 654
• Citation: 13 Utah 129,44 P. 833
• Court: Utah Supreme Court
• Parties: WILLIAM H. CULMER, APPELLANT, v. R. G. WILSON AND BELLE WILSON, HIS WIFE, RESPONDENTS

44 P. 833

13 Utah 129

WILLIAM H. CULMER, APPELLANT, v. R. G. WILSON AND BELLE WILSON, HIS WIFE, RESPONDENTS

No. 654

Supreme Court of Utah

March 26, 1896

Appeal from the district court of the Third judicial district Territory of Utah, Hon. S. A. Merritt, Judge.

Action by William H. Culmer against R. G. Wilson and Belle Wilson his wife, for contribution for damages paid by plaintiff as joint tort feasor in a case in which he, as naked trustee for Belle Wilson, had been sued jointly with her and with her former husband, by name of Tompkins, for trespass committed by them in the execution of an unlawful judgment, rendered by a United States commissioner who had no jurisdiction in a case brought by plaintiff solely at the instigation of the said Belle Wilson. Plaintiff paid the damages awarded against him, and to this action for contribution against Belle Wilson and her husband, R. G. Wilson, to whom she was married when this suit was brought, defendants demur. From a judgment on the demurrer, plaintiff appeals. Affirmed as to R. G. Wilson and reversed as to Belle Wilson.

Order and judgment of the trial court sustaining the demurrer of R G. Wilson affirmed, and order and judgment sustaining the demurrer of defendant Belle Wilson set aside and vacated with instructions.

Sutherland & Murphy, for appellant.

Respondent insists that as his wife was the wife of another man when this obligation of indemnity attached, he alone is liable as husband.

Tompkins, the former husband, was liable as such while his marital relations subsisted. On the divorce being granted dissolving that marriage Tompkins was discharged, and from that time it became and was the liability of the wife until her marriage to defendant Wilson. Bryan v. Doolittle, 38 Ga. 255; Parker v. Steed, 1 Lea, 206.

On that event the liability attached to him. 2 Kent's Com. 143, 149; Schouler Dom. Rel. secs. 56, 75; Stewart on Husb. & W., secs. 448, 463; Handy v. Foley, 121 Mass. 259; Gray v. Thacker, 4 Ala. 136; 9 Am. & Eng. Ency. L., pp. 823-25; Prescott v. Fisher, 22 Ill. 390; Moon v. Lesaw, 18 Ala. 606; Angel v. Felton, 8 John. 140; Carl v. Wonder, 5 Watts. 97, 98; Platner v. Patchin, 19 Wis 333.

In Kent's Commentaries, above cited, it is laid down that:

"The husband is answerable for the wife's debts before coverture; but if they are not recovered during the coverture he is discharged."

Schouler says, section 56, above cited: "The husband remains liable for the debts of his wife, dum sola, only so long as the coverture lasts. As his liability originated in the marriage, so it ceases with it."

In Crane v. Van Dwyne, 9 N. J. Eq. 259, it was held that if a femme sole being an executrix or an administratrix wastes the goods of her testator or intestate, and then marries, her husband is liable as long as the coverture lasts.

The same is decided in Ferguson v. Collins, 8 Ark. 241.

In Capel v. Powell, 17 C. B., U.S., 743, it was held that a divorced husband was not liable to be joined in an action for a tort committed by his wife during coverture.

By the common law, the husband succeeded to his wife's personal property, chose in action, and possession of real property. But his liability for her ante-nuptial debts and torts did not depend on his obtaining any property by his marriage. Heard v. Stamford, 3 P. Will. 400; Schouler on Dom. Rel., sec. 56; Alexander v. Morgan, 31 Ohio St. 546.

He is also entitled to her services. His liability for her ante-nuptial contracts or torts is not affected by any ante or post-nuptial agreement; nor do Married Women's Statutes destroy this liability unless they so provide in terms or by necessary implication. Conner v. Berry, 46 Ill. 370; Borley v. Rampacker, 5 Duer. 183; Alexander v. Morgan, 31 Ohio St. 546; Platner v. Pachin, 19 Wis. 333; Quick v. Miller, 103 Pa. St. 67.

In Illinois it was held that the statute having taken away all of a husband's pecuniary rights, the reason of his liability for his wife's ante-nuptial debts had ceased and therefore that liability had ceased. Martin v. Robson, 65 Ill. 129.

But as long as he was entitled to his wife's services, though he could claim no part of her property, he was held liable for her ante-nuptial debts and torts. McMurtry v. Webster, 48 Ill. 123.

Married Women's Acts, which do not expressly refer to and take away from the husband his right to his wife's earnings, do not change his common law right to them. 9 Am. & Eng. Ency. L. 819; Sietz v. Mitchell, 94 U.S. 580; Merrill v. Smith, 37 Me. 394; Glover v. Alcott, 18 Mich. 470.

The Utah statute does not deprive a husband of his wife's services. 2 C. L. sec. 2528.

C. S. Varian, for respondents.

The case is one where several parties are made to answer for a joint trespass. The judgment against them is conclusive of the liability of each, and, that they committed the wrong, intending to commit it, or did the act under circumstances fairly charging them with intending the consequences. Cooley Torts, 1st Ed. p. 133.

The general rule denies contribution or indemnity between tort feazors on the ground that no man can make his own misconduct the ground for an action in his own favor. Cooley, p. 144; Chicago v. Robbins, 2 Black, 424-425.

Exceptions to the rule have been variously stated. In a case in Ohio (for contribution) the court puts the right of contribution upon the ground of honest belief of the parties that they are doing a legal and proper act, and denies the right when they are conscious of doing a wrong. Acheson v. Miller, 2 Ohio St. 203.

But this is not accurate. The wrongdoer is not excused as against his co-tort feazor, where he is presumed to have known the act to have been unlawful. Bailey v. Bussing, 28 Conn. 453.

In this case the court defines the exception to be, where one innocent of an illegal purpose, "ignorant of the nature of the act, which was apparently correct and proper." P. 458.

Cooley also questions the accuracy of the statement by the Ohio court and approves the principle laid down in the Connecticut case and as stated by an English court. Cooley, pp. 145-146-7-8; Adamson v. Jains, 4 Bing. 66-73; Betts v. Gibbins, Ad. & El. 57-74.

The case of Avery v. Halsey, 14 Pick. 174, has been cited sometimes in aid of the claim made by this complaint. In that case there was an honest disagreement between persons as to the ownership of property. The plaintiff aided one party to remove a blacksmith shop upon the express promise to indemnify made by defendant. The promise to indemnify was held valid, because the plaintiff had reasonable ground to believe his employer was the true owner.

Defendant Belle only requested plaintiff to take proper proceedings. He did not bring the wrongful suit on her request, but on the advice of her attorney.

Here it appears that Belle Thompson only requested plaintiff "to take such proceedings as would prevent Anna Marks from maintaining her tortious possession, etc." Plaintiff after consulting his attorney selected his "proceedings" and the forum.

The rule is, that a principal cannot require an agent to perform an unlawful act, and if the agent performs an act, knowing it to be unlawful, or which he must be presumed to have known was unlawful, he can not have indemnity. Meachem on Agency, sec. 654; Coventry v. Barton, 17 Johns. 142; Coventry v. Barton, 8 Am. Dec. 376.

The concluding statement in the complaint that Culmer's acts were all done in the belief that they were legal, might well be considered in mitigation of damages in action against him (and probably were) but surely cannot cast a responsibility upon Mrs. Wilson, which she did not assume.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

The complaint in this case shows that the plaintiff held title to certain real estate in Juab county, merely as trustee for the use and benefit of the defendant Belle Wilson, who was then the wife of Harvey K. Tompkins; that plaintiff had no beneficial interest therein, and that in September, 1887, he conveyed the property to said Belle Wilson; that the plaintiff simply held the title for her in trust on account of the intemperate habits of her then husband; that prior to said conveyance to her, in 1887, the said Belle Wilson informed the plaintiff that one Anna Marks was wrongfully entering upon said property, by attempting to take possession of a portion of the same, and erect a house thereon, and that said acts were an interference with her rights in said property, and requested plaintiff to consult an attorney, and cause such proceedings to be taken as would prevent said Anna Marks from maintaining her tortious possession of said property; that plaintiff gave full credit to such statements and instructions, and in pursuance to said Belle Wilson's request, he, fully believing in the merits of her claim, consulted an attorney, and followed the instructions and advice of said attorney, and filed a complaint prepared by said attorney, with a commissioner appointed by the supreme court, and having jurisdiction of a justice of the peace, residing and holding his office at Provo City, Utah county, to commence an action in the name of Belle Tompkins (now Belle Wilson) against said Anna Marks, for forcible entry and detainer of the premises; that at such time the jurisdiction of a supreme court commissioner was not defined by law; that said plaintiff fully believed that said commissioner had jurisdiction to try said action; that, acting in concert with said attorney, and under his directions, and under the directions of the said Belle Wilson, he assisted in the prosecution of said suit to a judgment for a restitution of the premises, and a writ of restitution was issued by said commissioner, and placed in the hands of a constable at Eureka, ...