Drake v. Drake
| Decision Date | 30 April 1920 |
| Docket Number | 21,706 |
| Citation | 177 N.W. 624,145 Minn. 388 |
| Parties | CHARLES L. DRAKE v. ALBERTHA DRAKE |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to restrain defendant from interfering with and annoying plaintiff in the lawful enjoyment of his business and private affairs. Defendant's demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action was sustained, Molyneaux, J. From the order sustaining the demurrer, plaintiff appealed. Affirmed.
Husband cannot maintain suit to restrain wife from commission of tort.
1. The husband cannot maintain against his wife an action in equity to restrain and enjoin the commission of acts towards him which amount to nothing more than a tort or series of torts.
Rule applies to nagging.
2. The rule applies to acts and conduct on the part of the wife commonly known as nagging.
Married Woman's act inapplicable -- case followed.
3. The Married Woman's Act (G.S. 1913, § 7142), was not intended to vest in either husband or wife a right of action of that kind. Strom v. Strom, 98 Minn. 427, followed and applied.
Eugene S. Bibb, for appellant.
Brady Robertson & Bonner, for respondent.
The parties in this action are husband and wife, though they have not lived together as such since November, 1918; plaintiff having separated from defendant because, as he claims, of her abusive conduct toward him. Her conduct in that respect according to the allegations of the complaint, has been so oppressive, persistent and long continued, as to become injurious to plaintiff's health and comfort, and he seeks by this action to have her restrained by injunction from further acts and conduct of the kind.
The complaint alleges that since the year 1916 defendant has carried on a systematic campaign against plaintiff of cruel and inhuman treatment, by annoying and otherwise making life miserable for him; that she goes to his office and there in the presence of others charges him with being an immoral man, and heaps upon him all sorts of abuse by false and untrue accusations; that she has attempted to drive him into bankruptcy, and has practically ruined his health; that by false and untrue charges she has caused societies to which he belonged to cancel his membership therein; that when she meets him on the public streets she creates a scene by calling to him in a loud voice to attract the attention of passersby, causing plaintiff great annoyance and embarrassment; that she creates like scenes in the church to which plaintiff belongs; that on August 29, 1919, she employed private detectives to waylay and beat him up, which would have resulted seriously had not third persons interfered for his protection, and finally, that unless restrained defendant will continue like acts of misconduct to the annoyance, chagrin and irreparable injury of plaintiff.
A general demurrer was interposed to the complaint which was sustained and plaintiff appealed. The single question presented is whether under our statutes the husband may maintain a suit in equity against the wife to restrain conduct of the character stated and charged in the complaint. We answer it in the negative.
The allegations of the complaint, somewhat indefinite in several respects, taken as a whole charge acts of misconduct on the part of defendant amounting to what is commonly known and understood as nagging, constituting in law nothing more than a series of personal torts, involving neither a breach of contract nor specific property right. The action then sounds in tort, and that it cannot be maintained seems settled by the decision in Strom v. Strom, 98 Minn. 427, 104 N.W. 1047, 6 L.R.A. (N.S.) 191, 116 Am. St. 387. That was a similar action, one for an alleged assault and battery committed by the husband on the wife, and was brought by the wife, and not by the husband as in the case at bar. The court, in disposing of the case, recognized and referred to the common-law disability of either spouse to maintain such an action against the other, and held that in the enactment of the so-called Married Woman's Act (G.S. 1913, § 7142),...
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