Hamilton v. Fulkerson

• Decision Date: 12 December 1955
• Docket Number: No. 1,No. 44696,44696,1
• Citation: 285 S.W.2d 642
• Parties: JoAnn HAMILTON, a minor, by Florence Hamilton, next friend, Appellant, v. Frank FULKERSON, Respondent
• Court: Missouri Supreme Court

Page 642

285 S.W.2d 642

JoAnn HAMILTON, a minor, by Florence Hamilton, next friend, Appellant, v. Frank FULKERSON, Respondent.

No. 44696.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1955.

Opinion Modified on Court's Own Motion and Motion for

Rehearing or to Transfer to Court en Banc Denied

Jan. 9, 1956.

J. P. Morgan, Chillicothe, for appellant.

Kitt & Somerville, Ronald L. Somerville, Chillicothe, for respondent.

COIL, Commissioner.

JoAnn Hamilton, a minor, by her next friend, filed a suit on August 19, 1954, in which she sought damages for alleged personal injuries which she claimed resulted from the negligence of Frank Fulkerson when she was a passenger in his automobile. On August 21, 1954, JoAnn and Frank were married. Fulkerson's motion to dismiss the action was sustained and JoAnn appealed from the ensuing final judgment. The case is one of first impression in this state.

The present rule in Missouri, established by the cases of Rogers v. Rogers, 1915, 265 Mo. 200, 177 S.W. 382, and Willott v. Willott, 1933, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114, is 'that an action for a personal tort committed by a husband against a wife during coverture cannot be maintained.' 177 S.W. 384[1, 2]. The personal tort in the instant case was not committed during the coverture of the parties but, as noted, occurred prior to their marriage.

Initially, however, we should examine the Rogers and Willott cases to determine whether the reasons for their results are likewise applicable to and decisive of the facts of the instant case. Willott (which incidentally was an action for personal injuries sustained by a wife while a passenger in an automobile driven by her husband), without change or addition, affirmed Rogers in all respects. In each of those cases the same two sections of the married women's act were examined and construed, viz., Sections 1735 and 8304, RSMo 1909 (in Rogers) and Sections 704 and 2998, RSMo 1929 (in Willott). Section 1735 of 1909 (same as 704 of 1929, which became Section 855, RSMo 1939) was repealed by Laws 1943, p. 353, and what had been Section 855 of 1939 was merged in new Section 11 of the 1943 Laws and is now Section 507.010, RSMo 1949, V.A.M.S. That section provides for the prosecution of actions in the name of the real party in interest. Apparently it was believed that the language of the new section was broad enough to include actions by married women which previously had been treated by a separate section. It would appear that, by reason of the repeal of Section 855 of 1939, which was considered and construed in Rogers and Willott, and that by virtue of the fact that present Section 507.010, replacing former Section 855 of 1939 makes no reference to married women and does not treat them separately under the real party in interest section, we need not further concern ourselves with Rogers and Willott in so far as they construed that section.

Section 8304 of 1909, construed in Rogers and Willott (the same as 2998 of 1929), is now, without pertinent change, Section 451.290, RSMo 1949, V.A.M.S.: 'A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party; provided, a married woman may invoke all exemption and homestead laws now or hereafter in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property.'

It was said in Rogers and Willott that the foregoing statute declared the purposes for which a married woman would be deemed a femme sole; that because a husband's right to sue was a common-law right and because it did not include the right to sue his wife for a personal tort, there were stronger reasons why a wife whose rights were purely statutory should have no right of action against her husband for a personal tort, in the absence of express statutory language giving her that right or in the absence of clear language from which the conference of that right could be implied. And the court held that there was no express statutory language in present Section 451.290 conferring on the wife a right to sue her husband for personal tort, and, apparently, the court was of the opinion that there was no language in that section from which such right could be implied.

In commenting on the reason for the lack of the common-law right of a husband to sue his wife, the court in Rogers said: 'Whether the absence of this authority is due to the doctrine of the unity created by the marriage relation, or to an effort on the part of Legislatures and courts to promote harmony or at least lessen the cause of controversy between husband and wife, the nonexistence of the husband's right in this regard uniformly prevails.' 177 S.W. 384[1, 2]. We point out that close examination of the Rogers and Willott cases shows that, in so far as the decisive language of the opinions is concerned, they were based primarily upon the principle of statutory interpretation. But in Rogers, the quotation from 'Cooley on Torts (3rd Ed.) p. 474, and notes' and the cases cited in support of the result there reached, 177 S.W. 384, indicates that the reasons prompting the statutory construction there made rather than the possible and plausible contrary construction, were considerations of 'public policy'. It was thought that the courts should construe the women's emancipation statutes in such a way as would avoid the possibility of disturbing domestic tranquillity.

Important for present purposes is the fact that neither in Rogers nor Willott did the court consider the effect of present Section 451.250. In Willott the court pointed out that that section related only to the separate property rights of a married woman and, therefore, because the Willott case involved a personal tort committed during coverture, gave that section no consideration. Here, however, we are dealing with a personal tort committed by a spouse prior to marriage and consequently Section 451.250 may be pertinent. That section, Section 451.250 provides in pertinent part that 'any personal property, including rights in action, belonging to any woman at her marriage, * * * shall * * * be and remain her separate property and under her sole control, * * * and any such married woman may, in her own name and without joining her husband, as a party plaintiff institute and maintain any action, in any of the courts of this state having jurisdiction, for the recovery of any such personal property, including rights in action, as aforesaid, with the same force and effect as if such married woman was a femme sole * * *.'

There can be no doubt that 'rights in action,' as used in the foregoing section, includes any cause of action which was the property of a wife at the time of her marriage. Thus, when JoAnn's cause of action came into being, she was single and unmarried. That cause of action remained her separate property to be thereafter dealt with by her as if she were unmarried. If we were construing the meaning of the foregoing section, uninfluenced by the rationale of the statutory construction employed in Rogers and Willott, and uninfluenced by the results reached in other jurisdictions on facts identical with those of the instant case, we should have no doubt that Section 451.250 authorizes a married woman to sue her husband for a personal tort committed by him prior to their marriage. The language of the statute seems broad and plain. It provides that a woman's personal property, which, of course, includes a cause of action, woned by her at the time of her marriage, is to be and remain her separate property and under her sole control and that she may maintain any action for the recovery of that personal property as if she were unmarried. And we should have no hesitancy in holding that, even if the common-law rule that marriage extinguished all rights of action and claims by one spouse against another, 41 C.J.S., Husband and Wife, Sec. 396, p. 880; Staats v. Co-operative Transit Co., 125 W.Va. 473, 24 S.E.2d 916, should be, in the absence of specific statutory provision to the contrary, recognized and applied today in Missouri, Section 451.250 furnishes the necessary specific statutory authority for the abrogation of that rule as it might otherwise apply to the facts of the instant case.

It may be contended, however, that because there is no express language in Section 451.250 mentioning the right of a married woman to sue her husband for an antenuptial tort, that, therefore, Section 451.250 should, because of the construction theretofore given Section 451.290 in Rogers and Willott, be construed to the effect that the section conferred no right on a wife to maintain an action for an antenuptial tort because of the common-law rule that antenuptial claims between spouses were extinguished by marriage and that, therefore, by analogy to Rogers and Willott, Section 451.250 conferred no right on the wife which the husband did not have at common law. If such an argument is valid, we are compelled to answer that any logical reason for the existence of the common-law rule that marriage extinguished all antenuptial claims between spouses has ceased to exist and, therefore, the application of that rule should cease. Irrespective of statutes, any common-law rule based upon the fiction of the identity of husband and wife, long since contrary to the fact, should not be applied to any 'first impression' fact situation arising in this state.

In Claxton v. Pool, Mo.Sup.1917, 197 S.W. 349, L.R.A.1918A, 512, the court had before it the question of whether a husband was liable for his wife's torts. Under...