Ennis v. Truhitte

• Decision Date: 12 November 1957
• Docket Number: No. 45718,45718
• Citation: 306 S.W.2d 549
• Parties: Maxine ENNIS, by Next Friend, Vena Munday, Appellant, v. G. E. THUHITTE, Administrator of the Estate of Loye Gene Ennis, Deceased, Respondent.
• Court: Missouri Supreme Court

Page 549

306 S.W.2d 549

Maxine ENNIS, by Next Friend, Vena Munday, Appellant, v. G. E. THUHITTE, Administrator of the Estate of Loye Gene

Ennis, Deceased, Respondent.

No. 45718.

Supreme Court of Missouri, En Banc.

Nov. 12, 1957.

Edward V. Sweeney, Monett, Emory Melton, Cassiville, attorneys for appellant.

Herbert Douglas, Neosho, Arthur C. Popham, Sam Mandell, Kansas City, attorneys for respondent.

Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

BARRETT, Commissioner.

This is a suit by a wife, minor, against the administrator of the estate of her deceased husband. The action is in two counts, the first count seeks damages for negligence in the operation of an automobile in which the plaintiff wife was a passenger and the husband was the driver, and the second count also seeks damages, actual apparently, because the husband's conduct, in the circumstances, was so 'gross and reckless' as 'to impute willfulness and wantonness and intentional wrongdoing' to him. In general, the allegations of the petition are that the plaintiff wife was a passenger in an automobile driven by her husband on U. S. Highway 71, about 4:30 o'clock in the afternoon, July 15, 1955. The highway was undergoing repairs and the plaintiff's husband been stopped on the an automobile that had been stopped on the highway by a flagman. As to the first count, the charges of negligence were excessive speed, failure to have the automobile under control, failure to stop, slacken speed or change the course of the automobile, and failure to look. As indicated, as to the second count, it is alleged that the husband's negligence in these respects was so reckless as to constitute willfulness and wantonness. The plaintiff wife, Maxine Ennis, was injured on July 15, 1955, the husband, Loye Gene Ennis, died December 3, 1955, and this action against his administrator was instituted on May 10, 1956. The trial court sustained the administrator's motion to dismiss the petition for the reason that it did not state facts upon which relief could be granted and the plaintiff, by her mother as next friend, has appealed.

In sustaining the motion the trial court was of the view that the case stated in the petition fell within the prohibition of the majority general rule and our prior decisions which deny to one spouse the right to recover against the other for a personal tort committed during coverture. Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382; Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114; Annotation 43 A.L.R.2d 632, 636. It is not necessary here, except in a limited way, to attempt a re-examination of the rationale of this particular common-law doctrine, that has been done repeatedly and there is, at least in certain types of cases, a 'trend' against the common-law rule. 1 Harper & James, Torts, Sec. 8.10, pp. 643-647; Annotation, 43 A.L.R.2d loc. cit. 647. Some of the cases, for example, the instances in which a husband intentionally shoots or kills his wife (Apitz v. Dames, 205 Or. 242, 287 P.2d 585), demonstrate plainly enough the soundness of the trend, but Professor Prosser's vehemence to the contrary notwithstanding (Prosser, Torts, Sec. 101, pp. 674-675), the instances of the simple negligence cases are not so realdily persuasive and satisfying. See and compare the views and limitations suggested by one of the earlier, most thoughtful critics of the common-law doctrine. McCurdy, 'Torts Between Persons In Domestic Relation,' 43 Har.L.R. 1030, 1055 (1930). In this case, the husband being dead and the action having been instituted against his administrator, the reasons of policy upon which the rule is based, the fact of their being husband and wife, have vanished. 1 Harper & James, Torts, Sec. 8.10, p. 645; Prosser, Torts. Sec. 101, p. 674. Hamilton v. Fulkerson, Mo., 285 S.W.2d 642, which permits recovery for a pre-marital tort, inflicted two days before the marriage, bites further into the common-law rule and its basic theory than does this case in which there is no longer a marital relation to disturb.

One additional suggestion may be ventured. Generally the rule is stated to be 'that one spouse has no right of action against the other to recover damages for personal injuries caused by the other.' Annotation 43 A.L.R.2d loc. cit. 636; 27 Am.Jur., Secs. 589-594, pp. 191-197. When pushed to do so many of the courts, in applying the common-law rule, have said that it 'did not merely disable the wife to sue her husband for tort. It went further and held that actions which between strangers would be tortious, were not torts when committed by husband against wife. That is to say--disability was not procedural only. The wife at ancient common law had no cause of action on which to sue.' Apitz v. Dames, supra [205 Or. 242, 287 P.2d 590]; 43 Har.L.R., loc. cit. 1043. In one sense, of course, if one spouse may not sue that other there is no enforceable cause of action, but it belies reality and fact to say that there is no tort when the husband either intentionally or negligently injures his wife. In the contribution cases, where the judgment creditor is the spouse of one of the tortfeasors against whom contribution is sought, liability is denied because the injured person 'had no enforceable right of action against the latter.' Annotation 19 A.L.R.2d 1003. In the cases involving the liability of a parent for personal torts against a minor child it is said that the true theory of the cases denying the minor's right to recover 'seems to be that of disability to sue the parent rather than absence of violated duty.' Annotation, 19 A.L.R.2d 423, 426. In the Rogers case, an action for false imprisonment in causing the plaintiff to be confined in an insane asylum, the court did not say that there was no tort; the court, in discussint the married women's acts, said, '* * * we hold that an action for a personal tort committed by a husband against a wife during coverture cannot be maintained under our statutes.' Rogers v. Rogers, 265 Mo. loc. cit. 208, 177 S.W. loc. cit. 384. In the Willott case, a suit for personal injuries sustained in an automobile accident, the court, while purporting to follow the Rogers case, said, 'At common law neither husband nor wife had a cause...