Curtis v. Ashworth
| Decision Date | 25 February 1928 |
| Docket Number | 6065. |
| Citation | 142 S.E. 111,165 Ga. 782 |
| Parties | CURTIS et al. v. ASHWORTH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A husband, under Civil Code, § 4413, and existing statutes enlarging the rights and functions of married women, is not liable for an independent tort committed by the wife in the operation of an automobile not furnished by him to the wife and not used in the husband's business, but operated without his consent, command, or participation in any way.
Certiorari from Court of Appeals.
Action by W. H. Ashworth against O. W. Curtis and others. Judgment for plaintiff was affirmed by the Court of Appeals (36 Ga.App. 783, 138 S.E. 286), and defendants bring certiorari. Reversed.
Harris & Harris, of Rome, for plaintiffs.
Willingham Wright & Covington, of Rome, for defendant.
Is a husband and his wife jointly liable in this state for her independent tort committed by the wife in negligently driving and operating an automobile, not in the business of the husband, but without his consent, command, or participation there being no allegation in the petition brought by the injured party against both the husband and wife, to recover damages, that the automobile belonged to the husband, and the alleged liability of the husband being based solely upon the ground of his marital relation? He was so liable by the common law. Smith v. Taylor, 11 Ga. 20, 22; 30 C.J. 786, § 4141(c). This principle was embodied in Code 1863, § 2904, and is there stated as follows:
"Every person shall be liable for torts committed by his wife, and for torts committed by his child, or servant or slave by his command, or in the prosecution, and within the scope of his business whether the same be by negligence or voluntary."
That Code as a whole was adopted by an act of the Legislature. The principle announced in the section cited has appeared in totidem verbis, with the omission of the words "or slave," in all the succeeding Codes: 1868, § 2910; 1873, § 2961; 1882, § 2961; 1895, § 3817; 1910, § 4413.
The Codes of 1895 and 1910 were adopted by acts of the Legislature. This being so, it is urged that the principle, that every person is liable for torts committed by his wife, is now of force as if specifically enacted by statute in these years. The argument is that the acts of the Legislature adopting the Codes of 1863, 1895, and 1910 had the effect of adopting this principle as the statute law of this state, the same as if it had been adopted in separate statutes. So it is contended that this principle is now of full force and effect, without alteration or modification, although there may have been enacted since the first Code, and after the adoption of the present Code, statutes affecting the status of married women, the effect of which would be to do away with the reasons upon which this principle is based, and to thus change, modify, or abolish it. The argument that this principle is now one of statutory law in this state, with all its original vigor and meaning, because three of the Codes in which it appears were adopted by acts of the Legislature, is based upon the decision in Central Railway Co. v. State, 104 Ga. 831, 31 S.E. 531. We do not think that decision supports this contention and argument. It was held that "the effect of this act [adopting the Code] is to make a part of the law of the state all new matter embodied in the Code of 1895 which could be constitutionally enacted by the Legislature," and "that an act, though unconstitutional as originally passed, on account of containing matter different from what was expressed in its title, if otherwise constitutional, became valid law by its incorporation in the" Code of 1895, upon the passage of the adopting act. This court did not mean to hold that every proposition contained in the Code so adopted had the same effect as if it had been adopted by a separate statute passed as of the date of the adopting act; and that such proposition should not be construed in connection with new matter embraced in the several Codes since its appearance in the first Code. The Code of 1868 was adopted by the convention which framed the Constitution of that year; but in spite of this fact this court held that such adoption of the Code of 1868 did not ratify any unauthorized change made in codifying legislative acts. McDaniel v. Campbell, 78 Ga. 188. So in Kiser v. State, 89 Ga. 421, 15 S.E. 495, this court held that, after a given section of the Code has been amended, a subsequent section which by its language and subject-matter forms a context thereto is generally to be interpreted as though the amended section had originally read as it does after being modified by the amendment.
It is a well-settled rule of construction, when there is a conflict between two parts of a single act, that the latest in position will be declared to be the law, as from its position it is presumed to be the last expression of the Legislature. Gilbert v. Georgia Railroad etc., Co., 104 Ga. 412, 30 S.E. 673; Lamar v. Allen, 108 Ga. 158, 164, 33 S.E. 958. In the case last cited it was contended that this rule should apply to a Code adopted by legislative act. This court held that the reason of this rule had been stated to be that, in the reading of a bill, matter near the close may be presumed to have received the last consideration, and, if assented to, was a later conclusion; but Judge Cobb, who delivered the opinion in that case, said:
"If such is the reason, the rule should not be applied in all its strictness when the provisions of a Code of laws are under consideration, as such a body of laws is rarely, if ever, read in the General Assembly."
It was further held that, where there are two conflicting sections in a Code, that section prevails which is derived from a source which can be considered as the last expression of the lawmaking power. So we cannot give to an act of the Legislature adopting a Code the same effect as we give to an act dealing with a single subject-matter and promulgating a single principle of law. So a legal proposition appearing in a section of the Code which has been adopted by an act of the Legislature cannot be construed in the light of the section alone, but must be construed in the light of all sections which furnish a context to the sections which are to be construed. Furthermore, statutes in pari materia should be considered as forming one homogeneous and consistent body of laws, and each of them may explain and illustrate every other part of the common system to which it belongs. This rule applies with peculiar force to sections of our Code relating to the same subject-matter, and codified at the same time, because they must be construed, if possible, to harmonize with each other. Thomason v. Fannin, 54 Ga. 361; Bealle v. Southern Bank, 57 Ga. 274; Georgia Penitentiary Co. v. Nelms, 65 Ga. 67; Mitchell v. Long, 74 Ga. 96.
In determining whether the section with which we are dealing has been changed, modified, or abolished by subsequent acts relating to the status of married women, we must first refer to the reason upon which the principle is based. Various reasons for this rule have been given by different courts. Some of the decisions hold that it rests upon the fact that the husband took all the wife's property and was entitled to all her earnings, and that, as she had no estate out of which a judgment against her could be satisfied, he should be held answerable for her wrongs. Others hold that the rule rests upon a merger of her civil existence in his. Still others state that the rule has been adopted because the husband, at common law, had the power of correcting his wife, and that therefore he was responsible for her conduct. Still others give as a reason for the rule, that, as the wife could not be sued alone, the injured party would be without redress unless the husband were held liable with her. 13 R.C.L. 1229, § 264. In this case it is strongly urged that the reason upon which the principle is based is that the civil existence of the wife is merged in that of the husband. Our Civil Code, § 2992, declares that:
"Her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit, or for the preservation of public order."
This principle appeared in the same language in each preceding Code: 1863,§ 1700; 1868, § 1743; 1873, § 1753; 1882, § 1753; 1895, § 2473; 1910, § 2992. It cannot reasonably be held that this principle now has the same force and effect that it had when embodied in the Code of 1863 because the Codes of 1895 and 1910 were adopted by acts of the Legislature. It must be conceded that, though announced in the same language in all the Codes, it has been greatly changed, modified, and partially, if not totally, repealed by subsequent legislation. The first change was brought about by the woman's property act of 1866, which declared that, from and after its passage:
"All the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife; and all property given to, inherited, or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband." Acts 1866, p. 146.
This principle was codified (Code 1868, § 1744), and has likewise appeared in all subsequent Codes: 1873, § 1754; 1882, § 1754; 1895, § 2474; 1910, § 2993. It was embodied in the Constitutions of 1868 and of 1877. Code 1868,§ 5219; Code 1910, § 6456. In Huff v. Wright, 39 Ga. 41, it was said:
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