Ebel v. Ferguson

• Decision Date: 10 April 1972
• Docket Number: No. 57125,57125
• Citation: 478 S.W.2d 334
• Parties: Randalin Ferguson EBEL, Plaintiff-Appellant, v. Stephen N. FERGUSON et al., Defendants-Respondents.
• Court: Missouri Supreme Court

Page 334

478 S.W.2d 334

Randalin Ferguson EBEL, Plaintiff-Appellant, v. Stephen N. FERGUSON et al., Defendants-Respondents.

No. 57125.

Supreme Court of Missouri, En Banc.

April 10, 1972.

Robert L. Shirkey, Shirkey, Morris & Cox, Kansas City, for plaintiff-appellant.

George T. O'Laughlin and Miller & O'Laughlin, Kansas City, for defendants-respondents.

DONNELLY, Judge.

Plaintiff, Randalin Ferguson Ebel, and defendant, Stephen N. Ferguson, were married December 22, 1961. On May 1, 1966, while a passenger in an automobile operated by her husband, plaintiff was injured when a collision occurred with another automobile. Plaintiff and defendant Ferguson were divorced March 1, 1967. Plaintiff filed this suit on October 3, 1969. The trial court sustained Ferguson's motion for summary judgment. An appeal was taken to the Kansas City Court of Appeals and the case was transferred by said Court to this Court 'because of the general interest in and importance of the question of plaintiff's right to maintain this action.'

The question presented is whether, after divorce, a former wife may recover damages from her former husband for a wrongful act committed during marriage.

V.A.M.S. § 1.010, first enacted January 19, 1816, in substantially its present form, reads as follows:

'The common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First, of a general nature, which are not local to that kingdom and not repugnant to or inconsistent with the Constitution of the United States, the constitution of this state, or the statute laws in force for the time being, are the rule of action and decision in this state, any custom or usage to the contrary notwithstanding, but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.'

'At the common law the husband and wife were regarded as one.' (Thompson v. Thompson, 218 U.S. 611, 614, 31 S.Ct. 111, 54 L.Ed. 1180.) As a result, at 'common law, a tort committed by one spouse against the person or character of the other does not give rise to a cause of action in favor of the injured spouse.' (41 Am.Jur.2d, Husband and Wife, § 522.)

In Rogers v. Rogers, 265 Mo. 200, 204, 208, 177 S.W. 382, 383, 384 (1915), this Court held that a wife cannot maintain a civil action against her husband for a wrongful act committed by him against her during coverture.

The Rogers holding has been followed consistently by this Court in cases involving wrongful acts committed, and claims asserted, while plaintiff and defendant were husband and wife. Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084; Brawner v. Brawner, Mo.Sup., 327 S.W.2d 808; and Deatherage v. Deatherage, Mo.Sup., 328 S.W.2d 624.

In Hamilton v. Fulkerson, Mo.Sup., 285 S.W.2d 642, this Court held that a wife could maintain an action against her husband during marriage, for a wrongful act committed prior to marriage.

In Ennis v. Truhitte, Mo.Sup., 306 S.W.2d 549, this Court held that a widow could maintain an action against the administrator of the estate of her deceased husband for a wrongful act committed by him during marriage.

Plaintiff urges that her marriage was as effectively terminated by divorce as, in Ennis, the marriage was terminated by death; and that Ennis should control our disposition of this case. Plaintiff's contention demands reexamination of the law in Missouri.

In 15 Modern Law Review 133, at 140 and 141 (1952), Professor O. Kahn-Freund of the University of London observed:

'It is apposite, as in the case of contracts, to distinguish between the substantive and the procedural aspects of the doctrine of unity at common law. Two rules, it is submitted, should be clearly kept apart:

'(1) No act committed by one spouse against the other during marriage could be a tort. (Phillips v. Barnett (1876) 1 Q.B.D. 436.)

'(2) Neither spouse could sue the other during marriage or continue, during marriage, proceedings started before.

'The first of these rules precluded any claim in respect of a wrongful act alleged to have been committed during marriage by the husband against the wife or by the wife against the husband, no matter when the claim was raised. It made it impossible for the husband to claim, against his deceased wife's estate, damages for a tort alleged to have been committed by her, even in so far as the case would have come within those exceptions which the common law had grafted upon the rule actio personalis moritur cum persona. The same would have been true of a similar claim made by the widow against the husband's estate, or by the personal representative of either spouse against the surviving spouse. The present writer has been unable to find an actual decision to this effect, but the matter is put beyond all doubt by Phillips v. Barnett where a woman's attempt to sue her husband after divorce for an assault alleged to have been committed during the marriage was defeated by the rule of the common law against tortious liability between husband and wife. It was the substantive rule alone and not the procedural rule which determined the matter, because the action was not one between husband and wife.

'The second, i.e., the procedural, rule made it impossible for either spouse to sue the other in tort as long as they were married, irrespective of whether the tort was alleged to have been committed before or during marriage. It is impossible to say whether marriage destroyed, as a matter of substantive law, the right to recover damages for a pre-nuptial tort which at the time of the marriage was vested in either spouse against the other. The question did not arise because the procedural principle sufficed to determine the issue.'

In Rogers, and subsequent cases, this Court has spoken of maintaining an action, of spousal immunity as though equated with parent-child immunity and charitable immunity, and of changing public policy.

We must acknowledge that the language used in our cases is misleading insofar as it (1) fails to recognize that, at common law, on the basis of the concept of 'unity of the spouses,' no cause of action came into existence as the result of the commission of a wrongful act by one spouse against the other; (2) as a result, projects and treats the question of 'tort' liability between spouses as one of procedural law and not of substantive law; and (3) leaves the inference that the question is one of 'immunity,' procedural in nature, which this Court created 'for the public good' and can now abrogate 'for the public good.'

This Court, on occasion, will fashion a remedy. We are extremely reluctant to create a cause of action not recognized at common law. (Cf. Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73; and Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920.) V.A.M.S. 1.010, by adopting the common law, implants in Missouri the common law concept that a wrongful act between spouses does not give rise to a cause of action. The General Assembly may, of course, change the law. If it does, it must do more than provide a remedy. It must create a cause of action.

The Rogers, Willott, Brawner, and Deatherage cases reached a correct result, in denying recovery, because the wrongful acts involved were committed during the marriage and, under the common law, no cause of action came into existence. The Hamilton case reached a correct result, in permitting recovery, because the wrongful act involved was committed prior to the marriage, a substantive cause of action existed prior to marriage, and a statute (V.A.M.S. § 451.250) furnished procedural authority to maintain the action. The Ennis case reached an incorrect result, in permitting recovery, because the wrongful act involved was committed during the marriage, and no cause of action came into existence during the marriage. The death of the husband could not create a cause of action in the widow when none existed before the death.

We hold that, after divorce, a former wife may not recover damages from her former husband for a wrongful act committed during marriage. The Ennis case, supra, should no longer be followed.

There is nothing novel about the position we take today or the basis for it. In Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637, 638 (1948), the Supreme Judicial Court of Massachusetts said:

'That no cause of action arises in favor of either husband or wife for a tort committed by the other during coverture is too well settled to require citation of authority. Recovery is denied in such a case not merely because of the disability of one spouse to sue the other during coverture, but for the more fundamental reason that because of the marital relationship no cause of action ever came into existence. That this is so is revealed by the fact that it has uniformly been held that even after divorce no action can be maintained by either spouse for a tort committed by the other during coverture. Phillips v. Barnet, 1 Q.B.D. 436; Abbott v. Abbott, 67 Me. 304, 24 Am.Rep. 27; Bandfield v. Bandfield, 117 Mich. 80, 75 N.W. 287, 40 L.R.A. 757, 72 Am.St.Rep. 550; Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A.,N.S., 191, 116 Am.St.Rep. 387; 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.'

The judgment is affirmed.

FINCH, C.J., and HOLMAN, J., concur.

MORGAN, J., concurs in result in separate concurring opinion filed.

HENLEY, J., concurs in result and concurs in separate concurring opinion of MORGAN, J.

BARDGETT, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents and concurs in...