Harvey v. Harvey

• Decision Date: 06 June 1927
• Docket Number: No. 42.,42.
• Citation: 214 N.W. 305,239 Mich. 142
• Parties: HARVEY v. HARVEY.
• Court: Michigan Supreme Court

239 Mich. 142

214 N.W. 305

HARVEY

v.HARVEY.

No. 42.

Supreme Court of Michigan.

June 6, 1927.

Error to Circuit Court, Manistee County; Hal L. Cutler, Judge.

Action by Susan Harvey against John W. Harvey, Jr. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before the Entire Bench.

Howard L. Campbell, of Manistee, for appellant.

Cornelius Hoffius and Dorr Kuizema, both of Grand Rapids, for appellee.

WIEST, J.

Plaintiff is the wife of defendant and brought this suit to recover damages for injuries she received while riding in an automobile driven by her husband. In the circuit judgment passed for defendant on the ground that a wife cannot maintain an action against her husband to recover damages for an injury occasioned by his negligence. Plaintiff reviews by writ of error.

The question here presented was decided adversely to plaintiff in Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287,40 L. R. A. 757, 72 Am. St. Rep. 550, but counsel for plaintiff points to an amendment of the statute after that decision and claims right to maintain the action by virtue of section 12357, C. L. 1915, which provides:

‘Whenever a cause of action shall accrue to, or arise against any married woman, she may sue or be sued in the same manner as if she were sole.'

It is conceded that at common law no such action could be brought and that the common-law rule still prevails, unless abrogated by the quoted statute.

The circuit judge, in construing the statute, said:

‘It is my thought that the statute section 12357 relied upon by plaintiff authorizes suits, only, when the cause of action, if any ‘shall accrue to her.’ Plaintiff cannot invoke the aid of that statute in this case because under the common law no cause of action can or did ‘accrue’ to her under like circumstances. There is no statutory authorization for such cause of action in Michigan either express or implied, hence none exists.'

Plaintiff contends for the minority rule supported by Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785;Brown v. Brown, 88 Conn. 42, 89 A. 889,52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70;Roberts v. Roberts, 185 N. C. 566, 188 S. E. 9,29 A. L. R. 1479;Fiedler v. Fiedler, 42 Okl. 124, 140 P. 1022,52 L. R. A. (N. S.) 189;Gilman v. Gilman, 78 N. H. 4, 95 A. 657, L. R. A. 1916B, 907;Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832,187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772;Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A. L. R. 1031;Harris v. Harris, 211 Ala. 222, 100 So. 333;Prosser v. Prosser, 114 S. C. 45, 102 S. E. 787;Wait v. Pierce (Wis.) 209 N. W. 475.

Defendant contends for the majority rule adopted by this court in Bandfield v. Bandfield, supra, and supported by 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; Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589; Maine v. James Maine & Sons Co., 198 Iowa, 1278, 201 N. W. 20, 37 A. L. R. 161;Rogers v. Rogers, 265 Mo. 200, 177 S. W. 382;Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S. W. 628, L. R. A. 1916B, 881, Ann. Cas. 1917C, 991;Schultz v. Christopher, 65 Wash. 496, 118 P. 629,38 L. R. A. (N. S.) 780;Butterfield v. Butterfield, 195 Mo. App. 37, 187 S. W. 295,197 S. W. 374;Dishon v. Dishon, 187 Ky. 497, 219 S. W. 794, 13 A. L. R. 625;Strom v. Strom, 98 Minn. 427, 107 N. W. 1047,6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387; Woltman v. Woltman, 153 Minn. 217, 189 N. W. 1022;Keister v. Keister, 123 Va. 157, 96 S. E. 315, 1 A. L. R. 439;Peters v. Peters, 156 Cal. 32, 103 P. 219,23 L. R. A. (N. S.) 699;Oken v. Oken, 44 R. I. 291, 117 A. 357;Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A. L. R. 1388; In Matter of Badger, 286 Mo. 139, 226 S. W. 936, 14 A. L. R. 286;Faris v. Hope, 298 F. 727;Schultz v. Schultz, 89 N. Y. 644;Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25; Smith v. Smith, 29 Pa. Dist. R. 10.

Much learning has been devoted to this question and the decisions contain all that can be said on the subject. By legislation common-law disabilities of the wife have been largely lifted, but lifting a disability does not operate to grant a right of action theretofore nonexistent between husband and wife.

In Austin v. Austin, supra, the action was by the wife against the husband for injuries she received while riding as a guest in an automobile driven by her husband. The court, after listing some of the common-law disabilities of coverture, said:

‘There was no right of action in either the husband or the wife for a personal tort of the other. The wife was without right of action against her husband for any wrong against her estate. The wife's disability to sue the husband was not alone for the lack of a remedy. That was merely incidental. It was for the lack of any cause of action. Therefore, in order to remove any disability of coverture affecting her right to sue, it was necessary to confer a right of action on her. Giving her a remedy to sue was not sufficient.'

The Mississippi statute (Hemingway's Code, § 2052), involved in that case provided: ‘Husband and wife may sue each other.’ Of this statute the court said that it ‘confers on neither any right of action against the other. Its purpose was to authorize suits by husband and wife against each other where there existed a cause of action.'

The court also pithily remarked:

‘At common law there was no right of action either by husband or wife against the other for a personal tort. There was absolute equality in that respect. Therefore there was no occasion to emancipate the wife with reference to such torts, because the husband was under the same sort of disability as the wife.

‘If appellant's contention were sound, we would have the novel situation of the wife having a cause of action against her husband for a personal tort, while the husband would have no such right against his wife; for there is nothing either in our Constitution or statutes which gives any such right to the husband.'

This graphically points out the unsoundness of the assertion that, granting the wife right to sue as though a femme sole, gives her a right of action not accorded the husband. Surely the Legislature, in conferring equality of right to sue, did not confer a right of action never possessed by husband or wife at common law. While Married Women's Acts of the various states differ somewhat in phraseology, they are quite alike in purpose and effect.

In Wait v. Pierce, supra, the court, in holding that the Married Women's Act gave a wife a right of action against her husband for a tort, made this observation:

‘It is only when the ideal family relation has for some reason been disrupted that rights under the statute are asserted.'

We can conceive of circumstances where liability insurance, carried by the husband, might prove the moving factor and not at all disrupt connubial bliss in collecting from an insurance company.

In Maine v. James Maine & Sons, supra, a suit by a wife to recover damages occasioned by personal injuries she received while riding in an automobile driven by her husband, the court made the following pertinent observation:

‘The occasion for a controversy of this character between parties so related and associated may be found in the fact, shown in evidence, that the appellant company carried a policy protecting it against liability for damages caused by the automobile in question.'

In Keister v. Keister, supra, the court stated that the statute of Virginia (Acts 1899-1900, c. 1139) provides:

‘* * * A married woman may contract and be contracted with, sue * * * in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by * * * her, shall have accrued before or after the passage of this act. * * *'

And, in holding the statute does not confer upon a married woman a...