Ensminger v. Ensminger

• Decision Date: 24 January 1955
• Docket Number: No. 39426,39426
• Citation: 77 So.2d 308,222 Miss. 799
• Parties: Pauline ENSMINGER v. William E. ENSMINGER.
• Court: Mississippi Supreme Court

Page 308

77 So.2d 308

222 Miss. 799

Pauline ENSMINGER v. William E. ENSMINGER.

No. 39426.

Supreme Court of Mississippi.

Jan. 24, 1955.

Morse & Morse, Poplarville, for appellant.

Clay B. Tucker, Woodville, for appellee.

LEE, Justice.

Mrs. Pauline Ensminger filed a bill of complaint, in the Chancery Court of Wilkinson County, against her husband William E. Ensminger, to recover damages for personal injuries, including a broken back, which she sustained on account of the alleged negligence of her husband in the operation of his automobile. The bill showed that the parties were residents of East Baton Rouge, Louisiana; and it alleged that, on December 24, 1952, she and her husband were traveling in his automobile on Highway 24 in Wilkinson County, when he negligently drove the automobile to the left of the center lane and off the highway into a tree. For her injuries, she demanded damages in the sum of $60,000. Evidently for the purpose of showing that the public policy of neither Mississippi nor Louisiana would be breached by the maintenance of this suit, she also alleged that the defendant, at the time, had in effect, on the automobile, a liability insurance policy in the sum of $60,000.

On motion of the defendant, the cause was transferred to the circuit court, where the pleadings were reformed. The defendant demurred to the declaration on the ground that the plaintiff cannot maintain the action against the defendant because, in this State, a wife cannot sue or recover from her husband for a tort. The demurrer was sustained, and the plaintiff declined to plead further. A final judgment of dismissal was entered and Mrs. Ensminger appealed.

Counsel for the parties have filed able and exhaustive briefs.

The position of the appellee is that this Court settled this question adversely to the appellant in Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388, a tort case, when, in the interpretation and construction of Section 94 of the Constitution, emancipating married women from the disability of coverture, and Sections 2517 and 2518, Code of 1906, now Sections 451 and 452, Code of 1942, implementing the Constitutional provision, it was held that neither husband nor wife can sue each other for a tort. In addition that, as a sequel to that case, it was held on H. L. Austin v. Maryland Casualty Company, Miss., 1925, 105 So. 640, that: 'The trouble with Mrs. Austin's case is that there is no liability imposed by law upon her husband for the injury done her. The law gives her no cause of action, and it gives her none because under the law no legal wrong has been done her by her husband. Whatever wrong was done her, if any, was a moral wrong in the form of a tort. As between husband and wife, that was no ground of recovery.'

Besides, the above cases were followed in McLaurin v. McLaurin Furniture Company, 166 Miss. 180, 146 So. 877, and Scales v. Scales, 168 Miss. 439, 151 So. 551; and the principle was again recognized in Deposit Guaranty Bank & Trust Co. v. Nelson, 212 Miss. 335, 54 So.2d 476. In other words, thirty years ago it was held that a wife cannot sue her husband for a tort, and by the decided cases, there has been no departure from that principle, but, on the other hand, it has been strictly adhered to.

The appellant concedes that, if she is to prevail, Austin v. Austin, supra, must be overruled or modified. However, she maintains that it was wrong in the first instance. Much of the argument, offered in the able dissenting opinion by Jutice George Ethridge in that case, but to which a majority of the Court seemed impervious, is again made here. The majority opinion in that case said [136 Miss. 61, 100 So. 592] that, 'The divorce courts and the criminal c...