Emerson v. W. Seed & Irrigation Co.

• Decision Date: 10 November 1927
• Docket Number: No. 24849.,24849.
• Parties: EMERSON v. WESTERN SEED & IRRIGATION CO.
• Court: Nebraska Supreme Court

116 Neb. 180

216 N.W. 297

EMERSON

v.WESTERN SEED & IRRIGATION CO.

No. 24849.

Supreme Court of Nebraska.

Nov. 10, 1927.

Syllabus by the Court.

The statutes of this state enabling a married woman to sue do not authorize a suit by the wife against the husband to recover damages for injuries to the person.

Nor do these statutes permit a recovery against the husband's employer for damages caused by the husband's negligence, where the husband is liable to the employer.

Appeal from District Court, Dodge County; Button, Judge.

Action by Mae Elizabeth Emerson against the Western Seed & Irrigation Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Good, J., dissenting.

Abbott & Dunlap, of Fremont, for appellant.

J. C. Cook, of Fremont, for appellee.

Heard before GOSS, C. J., and ROSE, DAY, GOOD, THOMPSON, and EBERLY, JJ., and SHEPHERD and RAIT, District Judges.

RAIT, District Judge.

On rehearing of an affirmance, entered without opinion, of an appeal from dismissal by trial court following order sustaining demurrer to petition.

The petition states that the plaintiff was injured through the negligent driving by her husband of an automobile; that the automobile was the property of the defendant and was being operated in the conduct of its business by her husband as an employee and agent of defendant, and that defendant knew that she was accompanying her husband and consented thereto.

The question presented is whether an employer is liable to the wife, where the negligence of the husband and employee was the cause of her injuries.

This question is new in this state, but has been presented on many occasions in other courts and involves always the construction of local legislation respecting the purpose and scope of statutes granting new rights to or removing the common-law disabilities from married women. While purely a question of local law, the statutes of all the states have some similarity in language and clearly have a common object in the removal of the disabilities of married women and the placing of both sexes in equality respecting their rights and the manner of enforcing them.

[1] The Nebraska statutes are as follows (Compiled Statutes 1922):

Section 8529: “A woman may while married sue and be sued, in the same manner as if she were unmarried.”

Section 8530: “If a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also.”

Section 1241: “And any married woman may devise and dispose of any real or personal property held by her, or to which she is entitled in her own right, by her last will and testament, in writing, and may alter or revoke the same in like manner that a person under no disability may do, and subject to the same restrictions.”

Section 1509: “The property, real and personal, which any woman in the state may own at the time of her marriage, and the rents, issues, profits, or proceeds thereof, and any real, personal, or mixed property, which shall come to her by descent, devise, or the gift of any person except her husband, or which she shall acquire by purchase or otherwise, shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband, or liable for his debts: Provided, all property of a married woman not exempt by law from sale on execution or attachment, shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against the husband for such indebtedness has been returned unsatisfied for want of goods and chattels, lands and tenements whereon to levy and make the same.”

Section 1510: “A married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property.”

Section 1511: “Any married woman may carry on trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman, from her trade, business, labor, or services, shall be her sole and separate property, and may be used and invested by her in her own name.”

Section 1512: “Any woman who shall have been married out of this state, shall, if her husband afterwards becomes a resident of this state, enjoy all the rights as to property which she may have acquired by the laws of any other state, territory, or country, or which she may have acquired by virtue of any marriage contract or settlement made out of this state.”

Section 8837: “The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other, but they may in all criminal prosecutions be witnesses for each other: Provided, however, the wife shall be a competent witness against the husband in all prosecutions arising under section thirty-nine of the Criminal Code. (9584).”

These statutes have been interpreted by this court in the following cases: Aultman, Taylor & Co. v. Obermeyer, 6 Neb. 260;Dayton Spice-Mills Co. v. Sloan, 49 Neb. 622, 68 N. W. 1040;First Nat. Bank v. Havlik, 51 Neb. 668, 71 N. W. 291;Studebaker Bros. Mfg. Co. v. Welch, 51 Neb. 228, 70 N. W. 920;Godfrey v. Megahan, 38 Neb. 748, 57 N. W. 284;Trayer v. Setzer, 72 Neb. 845, 101 N. W. 989;Bohner v. Bohner, 46 Neb. 204, 64 N. W. 700;Dunn v. Bozarth, 59 Neb. 244, 80 N. W. 811;In re Estate of Cormick, 100 Neb. 669, 160 N. W. 989, L. R. A. 1917D, 265;Greene v. Greene, 42 Neb. 634, 60 N. W. 937, 47 Am. St. Rep. 724;Stenger Benevolent Ass'n v. Stenger, 54 Neb. 427, 74 N. W. 846;Kerner v. McDonald, 60 Neb. 663, 84 N. W. 92, 83 Am. St. Rep. 550;Smith v. Dean, 15 Neb. 432, 19 N. W. 642;Goken v. Dallugge, 72 Neb. 16, 99 N. W. 818, 101 N. W. 244, 103 N. W. 287, 9 Ann. Cas. 1222.

In other jurisdictions statutes somewhat similar have been construed:

Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 192, 116 Am. St. Rep. 387;Peters v. Peters, 42 Iowa, 182;Freethy v. Freethy, 42 Barb. (N. Y.) 641;Longendyke v. Longendyke, 44 Barb. (N. Y.) 366;Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287, 40 L. R. A. 757, 72 Am. St. Rep. 550;Main v. Main, 46 Ill. App. 106;Nickerson v. Nickerson, 65 Tex. 281;Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L. R. A. (N. S.) 699;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;Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 N. W. 628, L. R. A. 1916B, 881, Ann. Cas. 1917C, 901;Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27;Schultz v. Christopher, 65 Wash. 496, 118 P. 629, 38 L. R. A. (N. S.) 780;Keister v. Keister, 123 Va. 157, 96 S. E. 315, 1 A. L. R. 439;Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A. L. R. 1388;Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25;Woltman v. Woltman, 153 Minn. 217, 189 N. W. 1022;Oken v. Oken, 44 R. I. 291, 117 A. 357;Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70;Mathewson v. Mathewson, 79 Conn. 23, 63 A. 285, 5 L. R. A. (N. S.) 611, 6 Ann. Cas. 1027;Muller v. Witte, 78 Conn. 495, 62 A. 756;Fiedler v. Fiedler, 42 Okl. 124, 140 P. 1022, 52 L. R. A. (N. S.) 189;Gilman v. Gilman, 78 N. H. 4, 95 A. 657, L. R. A. 1916B, 907;Sykes v. Speer (Tex. Civ. App.) 112 S. W. 422;Maine v. Maine & Sons Co., 198 Iowa, 1278, 201 N. W. 20, 37 A. L. R. 161;Perlman v. Brooklyn City R. Co., 117 Misc. Rep. 353, 191 N. Y. S. 891;Harvey v. Harvey, 239 Mich. 142, 214 N. W. 305;Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, 210 N. W. 822, 48 A. L. R. 276;Prosser v. Prosser, 114 S. C. 45, 102 S. E. 787;Crowell v. Crowell, 181 N. C. 66, 106 S. E. 149;Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A. L. R. 1031.

An examination of the decisions of other jurisdictions discloses a great weight of opinion opposed to opening a field of litigation between spouses in tort actions by means of judicial interpretation and without unmistakable ...