Fitzmaurice v. Fitzmaurice, 6014.

• Decision Date: 30 April 1932
• Docket Number: No. 6014.,6014.
• Parties: FITZMAURICE v. FITZMAURICE.
• Court: North Dakota Supreme Court

62 N.D. 191

242 N.W. 526

FITZMAURICE

v.FITZMAURICE.

No. 6014.

Supreme Court of North Dakota.

April 30, 1932.

Syllabus by the Court.

1. The questions of negligence and of contributory negligence become questions of law only when reasonable men can draw but one conclusion respecting them from the evidence. Held, for reasons stated in the opinion, that whether there was negligence or contributory negligence in the instant case were questions of fact for the jury.

2. Under section 4411, Comp. Laws 1913, providing: “Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which the other might, if unmarried. The wife after marriage has with respect to property, contracts and torts the same capacity and rights and is subject to the same liabilities as before marriage, and in all actions by or against her she shall sue and be sued in her own name”

-a married woman may maintain an action against her husband for damages for personal injuries suffered by her because of his negligence.

Appeal from District Court, Renville County; W. J. Kneeshaw, Judge.

Action by Mary Fitzmaurice against Thomas Fitzmaurice. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Robert H. Bosard, of Minot, for appellant.

J. E. Bryans, of Mohall, H. E. Johnson, of Minot, and Thomas F. Clifford, of Minneapolis, Minn., for respondent.

NUESSLE, J.

This is an action brought by a wife to recover damages from her husband for personal injuries alleged to have been suffered by her because of his negligence.

The case was tried to a jury. At the close of the plaintiff's case and again at the close of the whole case, defendant moved for a directed verdict on the ground that the evidence failed to establish negligence on the part of the defendant; that the plaintiff was herself guilty of contributory negligence; and that an action by a wife to recover damages for personal injuries resulting on account of the negligence of her husband does not lie under the statutes of the state of North Dakota. This motion was resisted and denied. Plaintiff had a verdict. Thereafter defendant moved for judgment notwithstanding the verdict or for a new trial. This motion was denied, and judgment was entered on the verdict. Hence this appeal.

In September, 1930, plaintiff accompanied her husband, the defendant, to town. He drove an automobile. On their return it was necessary to cross a line of railroad. As they approached the railroad from the south, it was possible to see easterly along the track for a long distance, excepting for some five or six hundred feet just before they reached the track, whence the view to the east was obstructed by a grain elevator and by a string of box cars. At this crossing there were three tracks. First on the south, the house track, on which were the box cars, then a passing track, and last, to the north, the main track. The main track and the house track were about thirty-five feet apart. The defendant was driving at a rate of about twenty-five miles per hour. He drove past the box cars and discovered a gasoline propelled train approaching the crossing from the east. The operator of the train sounded a warning signal just as defendant passed the box cars. Before that neither defendant nor plaintiff had seen or heard the train. Plaintiff saw the approaching train first, screamed, and called defendant's attention to it. It is inferable from the record that the defendant believed the train was approaching on the passing track and that he could cross ahead of it, so he increased the speed of his automobile. He reached the passing track, and then discovered that the train was on the main track. It was too late to stop, so he continued across and the train hit the rear end of his car as it passed over the main track. The plaintiff was very severely injured. If either plaintiff or defendant had looked as they approached the crossing and before the view became obstructed they would have been able to see the approaching train. However, neither of them looked. Both were acquainted with the crossing. The train made very little noise, and of course no smoke arose from it. Defendant contends that under these circumstances it must be said, as a matter of law, either that there was no negligence on his part, or, though there was, that since the plaintiff had the same opportunity as he had to look and discover the approaching train and was acquainted with the crossing and knew the danger attendant on passing over it, she was, in any event, guilty of contributory negligence.

[1][2] Questions of negligence and of contributory negligence are questions of fact for the jury, unless there can be no reasonable division of opinion respecting them. Martin v. Parkins, 55 N. D. 339, 213 N. W. 574. It seems to us that under the facts as disclosed in the instant case both these questions were for the jury. Certainly the question of the defendant's negligence was. And it does not follow, as the defendant argues, that if he was negligent, plaintiff also must have been. Plaintiff was not driving. While she knew of the crossing and the possible dangers attendant on passing over it, she had no control of the automobile. She may have believed that after crossing the house track there would still be time to stop if there were any danger. So whether failure to look when she was more than five or six hundred feet from the crossing was negligence, was for the jury to determine. On the other hand, when she discovered the approaching train, she immediately called the defendant's attention to it. He apparently thought he could cross ahead of the train, and attempted to do so. Possibly he then could have stopped had he tried to do so. Since plaintiff was not operating the automobile, she cannot be charged with his fault. She called his attention to the train. She could do no more. Accordingly, these questions were properly submitted to the jury. This was the view that the trial court took, and accordingly he refused to grant defendant's motion as based on those grounds.

[3] But the principal ground urged by the defendant in the lower court, and the one on which he now chiefly relies, is that the plaintiff has no cause of action; that under the law of this state plaintiff, as the wife of the defendant, cannot recover against him on account of his negligence which resulted in her injury.

It is conceded that at common law the wife might not sue her husband in tort. “At the common law the husband and wife were regarded as one,-the legal existence of the wife during coverture being merged in that of the husband; and, generally speaking, the wife was incapable of making contracts, of acquiring property or disposing of the same without her husband's consent. They could not enter into contracts with each other, nor were they liable for torts committed by one against the other.” 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. See, also, King v. Hanson, 13 N. D. 85, 99 N. W. 1085. In the absence of legislative enactment, the common law is in effect in North Dakota. Sections 4328, 4331, C. L. 1913. Plaintiff, however, insists that the Legislature has spoken in this behalf, and that the statute, section 4411, C. L. 1913, providing: “Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which the other might, if unmarried. The wife after marriage has with respect to property, contracts and torts the same capacity and rights and is subject to the same liabilities as before marriage, and in all actions by or against her she shall sue and be sued in her own name”-clothes her with both the right and the capacity to recover damages against her husband on account of his torts. Section 4331, provides: “In this state there is no common law in any case where the law is declared by the codes.”

And plaintiff insists that pursuant to this statute and section 4411, supra, the common-law rule is abrogated and must be wholly disregarded. While section 4411 does control, nevertheless in its construction and application some regard must be paid to the common law. “Manifestly civil statutes must be regarded as they have always been construed to be, but continuations, affirmances, modifications, or repeals of basic common law governing principles, and to be interpreted in the light of the common law as has been done for generations.” Reeves & Co. v. Russell, 28 N. D. 265, 277, 148 N. W. 654, 658, L. R. A. 1915D, 1149.

While the question now presented is novel in this jurisdiction, it has been considered by the courts elsewhere many times. Counsel on both sides have searched diligently for precedent and authority to sustain their respective contentions, and in that behalf have cited a multitude of cases. It would needlessly lengthen this opinion to enumerate all of these cases here, but they may be found cited in the following cases and in the notes appended thereto. As sustaining the defendant's contention, are Thompson v. Thompson, supra; Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L. R. A. (N. S.) 699;Maine v. James Maine & Sons Co., 198 Iowa, 1278, 201 N. W. 20, 37 A. L. R. 161;Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462, 32 L. R. A. 848;Dishon's Adm'r v. Dishon's Adm'r, 187 Ky. 497, 219 S. W. 794, 13 A. L. R. 625;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, 1048, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387;Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A. L. R. 1388;Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N. W. 297, 56 A. L. R. 327;Schultz v. Schultz, 89 N. Y. 644, reaffirmed (two judges dissenting) in Allen v. Allen, 246 N. Y. 571, 159 N. E. 656;Schubert v. Schubert Wagon Co., 249 N. Y. 253, 164 N. E. 42, ...