Fehr v. Gen. Accident Fire & Life Assur. Corp.

• Decision Date: 19 December 1944
• Citation: 246 Wis. 228,16 N.W.2d 787
• Court: Wisconsin Supreme Court
• Parties: FEHR v. GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, Limited.

246 Wis. 228

16 N.W.2d 787

FEHR

v.GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, Limited.

Supreme Court of Wisconsin.

Dec. 19, 1944.

Appeal from a judgment of the Circuit Court for Milwaukee County; John C. Kleczka, Judge.

Affirmed.

Fred Fehr commenced this action on August 11, 1943, against General Accident Fire and Life Assurance Corporation, Ltd., a foreign corporation, to recover for personal injuries caused by the negligent operation of an automobile by plaintiff's wife, who was insured by defendant insurance corporation. Defendant, answering, denied negligence on the part of insured, and also set forth in the answer that the insured is plaintiff's wife. Defendant moved for summary judgment, asserting plaintiff's incapacity to sue because defendant's insured is plaintiff's wife. From a judgment dated June 30, 1944, dismissing the complaint, plaintiff appeals.

Lecher, Michael, Spohn & Best, of Milwaukee (Thomas S. Stone, of Milwaukee, of counsel), for appellant.

Lines, Spooner & Quarles, of Milwaukee (Charles B. Quarles, of Milwaukee, of counsel), for respondent.

BARLOW, Justice.

Three questions are presented upon this appeal: (1) Under the laws of this state may a husband maintain an action against his wife for injuries to his person proximately caused by the negligent operation of an automobile by the wife? (2) May a husband maintain an action against his wife's insurer when such action is based on the tort committed by the wife? And (3) is a summary judgment proper in this case?

The questions presented will be considered in the above order. At the common law husband and wife are regarded as one. They cannot enter into contracts with each other, nor are they liable for torts committed by one against the other. Wisconsin adopted the common law of England, not inconsistent with our constitution, until altered or suspended by the legislature. Sec. 13, art. 14, Wisconsin Constitution. We must, therefore, find authority in the statutes if plaintiff is to prevail.

Nearly every state in the union, including Wisconsin, has adopted legislation enlarging the rights of married women, but there is no uniformity in the rights which have been granted nor the language used in granting such rights. With this true we are unable to obtain much assistance by examining the decisions of other jurisdictions. The Wisconsin statutes involved are secs. 246.07 and 6.015. Sec. 246.07 provides:

‘Every married woman may sue in her own name and shall have all the remedies of an unmarried woman in regard to her separate property or business and to recover the earnings secured to her by sections 246.05 and 246.06, and shall be liable to be sued in respect to her separate property or business, and judgment may be rendered against her and be enforced against her and her separate property in all respects as if she were unmarried. And any married woman may bring and maintain an action in her own name for any injury to her person or character the same as if she were sole. She may also bring and maintain an action in her own name, and for her own benefit, for the alienation and the loss of the affection and society of her husband. * * *'

Sec. 6.015 provides:

‘(1) Women shall have the same rights and privileges under the law as men in the exercise of suffrage, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, and in all other respects. * * *'

The history of the origin of these statutes and the enlargement by amendments is fully set forth in Wait v. Pierce, 1926, 191 Wis. 202, 209 N.W. 475,210 N.W. 822,48 A.L.R. 276, and no useful purpose would be served in a restatement. Appellant strongly urges that secs. 6.015 and 246.07, Stats., as construed in Wait v. Pierce, supra, and Dovi v. Dovi, 1944, 245 Wis. 50, 13 N.W.2d 585, have destroyed what he chooses to term ‘the legal fiction of unity’ of husband and wife, and placed the husband and wife on a basis of complete equality before the law in every respect. We fail to find such language in the statutes, and certainly hesitate about legislating by inference. The statutes in question were passed to enlarge the rights and privileges of married women and not to create and enlarge liabilities except as specifically provided.

It is argued that when this court held in Wait v. Pierce, supra, that the statutes in question granted the wife the right to recover from the husband for injuries to her person proximately caused by the negligence of the husband, it necessarily follows that the wife has no superior right to that possessed by her husband, and that by inference at least it was said the husband has this same right. We are unable to agree with appellant's contention. The question of the right of the husband to sue in an action of this kind was not before the court in Wait v. Pierce, supra. The statutes in question were passed for the specific purpose of establishing the rights and privileges of a married woman. We are unable to find where the legislature changed the common law and enlarged the liability of the wife for damages to her husband caused by her negligence, and this is especially true where it has no reference to her separate property or business, which is not claimed in this action. Whether the plaintiff could recover if this injury had been caused in the regular course of business of plaintiff's wife is not before the court, and therefore not decided. That the legislature did not intend to grant to a married woman all remedies of an unmarried woman was determined in Singer v. Singer, 1944, 245 Wis. 191, 14 N.W.2d 43, 47, where it was held that the actions which she could commence against her husband were limited by statute, and that the right to join him as a party defendant with others in a conspiracy action was not included.

Conceding that the legislature has the power to authorize the husband to bring actions against his wife for injuries to his person as though they were strangers, it would have been easy to express that intent in terms that are clear and leave no doubt. It must be presumed that the legislators were not unmindful of the radical changes in the policy of centuries which such legislation...