Goken v. Dallugge

• Decision Date: 18 May 1904
• Docket Number: 13,404
• Citation: 99 N.W. 818,72 Neb. 16
• Parties: AHLRICH GOKEN ET AL. v. ELLA M. DALLUGGE. [*]
• Court: Nebraska Supreme Court

99 N.W. 818

72 Neb. 16

AHLRICH GOKEN ET AL. v. ELLA M. DALLUGGE. ^[*]

No. 13,404

Supreme Court of Nebraska

May 18, 1904

ERROR to the district court for Butler county: SAMUEL H SORNBORGER, JUDGE.Reversed.

REVERSED.

Arthur J. Evans, C. M. Skiles, C. H. Aldrich and E. C. Strode, for plaintiffs in error.

L. H Hastings, Matt Miller and A. M. Walling, contra.

AMES C. LETTON and OLDHAM, CC., concur.

OPINION

AMES, C.

This is an action in which the defendant in error, as plaintiff in the court below, recovered a judgment in an action for damages against a husband and wife for an assault committed by the latter in the presence of the former, but without his instigation or consent and in disobedience to his expressed wishes.In the view we have taken of the case, it is not necessary to state the facts in greater detail.The verdict and judgment were for the plaintiff, and there was a joint motion for a new trial, and also separate motions by each of the defendants and separate petitions in error.Afterwards, the court entered an order overruling "the motion of the defendants Ahlrich Goken and Antje Goken to set aside the verdict, and for a new trial."It is insisted that this record, because of the use of the singular number of the word "motion" does not show that the separate motions of the defendants were called to the attention of the court and ruled upon, and that therefore no error can be availed of in this court that does not affect both defendants.We think that this would be a too liberal interpretation of the record.All the motions were filed at the same time, several months before the order overruling them was made, and it seems to us more probable that the clerk should have committed the very slight mechanical oversight of omitting a final letter from one word, than that the defendants should have been at all their care and labor, without calling their motions to the attention of the court and procuring rulings upon them.It appears to us fair to infer from the record that, when the court denied the defendants a new trial, he consciously denied it to each as well as to both of them.

The first and most important question presented is, whether a husband is liable jointly with his wife for torts committed by her in his presence, but without his instigation and against his expressed wishes and protest.We think the answer should be in the negative.We are not clear, as counsel urges, and some of the authorities cited by him assert, that the husband's liability in such cases, at the common law, grew solely out of the marital rights which he enjoyed with respect to his wife's property, and her disabilities as respected a separate estate and the obligation of contracts.There is equal reason to suppose, we think, that it had its origin, in part at least, in the personal relations of the parties, in the indissolubility of the marriage, and in the idea of guardianship of the husband over his wife's person, and his right to chastise her moderately and restrain her of her liberty; from which his responsibility for her conduct, especially in his presence, would have been almost a necessary inference.But laws and customs, and prevailing sentiments, have as effectually abolished these latter mentioned incidents of the marriage, as have statutes enabling her to have and enjoy a separate estate, trade and business, and to contract concerning it, removed the former.The wife may now be "the head of the family" as respects homestead rights and exemptions, she is equally entitled with her husband to the guardianship of the offspring of the marriage, in case of separation, and she may have an absolute divorce with alimony, almost for the asking, because of "extreme cruelty," which falls far short of personal chastisement or restraint of liberty.Even if not divorced, public sentiment will not tolerate that she be compelled to abide with him, although she be destitute of provocation or excuse for doing otherwise; and his criticism of her conduct must not exceed approval by the refined manners of "polite society."We think that so nearly a complete "emancipation" of the wife must in an equal degree emancipate the husband also, and free him from obligations that were incident to a state of law and society that has vanished before the progress of modern ideas.As this court say in Kerner v. McDonald, 60 Neb. 663, 84 N.W. 92:

"The old common law idea of the oneness in the relation of husband and wife is fast disappearing.The identity of the woman is not lost in the husband; she is no longer under his domination or control.On the contrary, in law, husband and wife are now considered as equals.* * * The reason for the law of entirety having ceased, with the reason, the law itself is no more.It would seem clear that, taking the modern view of the marriage relation, there is no reason for the doctrine for estates in entirety."

And so as it is said in Martin v. Robson, 65 Ill. 129:

"The intention of the legislature to abrogate the common law rule to a great degree, that husband and wife were one person, and to give the latter the right to control her own time, to manage her separate property, and contract with reference to it, is plainly indicated by these statutes.While they do not expressly repeal the common law rule, that the husband is liable for the torts of the wife,...