Howard v. Howard

• Decision Date: 15 November 1921
• Citation: 115 A. 259
• Parties: HOWARD v. HOWARD.
• Court: Maine Supreme Court

115 A. 259

HOWARD

v. HOWARD.

Supreme Judicial Court of Maine.

Nov. 15, 1921.

Exceptions from Supreme Judicial Court, Oxford County, at Law.

Action by Ada R. Howard against John L. Howard. Defendant's motion to dismiss was sustained, and plaintiff brings exceptions Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Matthew McCarthy, of Rumford, for plaintiff.

George A. Hutchins and Nathan G. Foster, both of Rumford, for defendant.

CORNISH, C. J. This is an action for alienation of the affections of her husband brought by the plaintiff against her father-in-law. The presiding justice sustained the defendant's motion to dismiss, and the plaintiff alleged exceptions.

The only question involved is whether such an action can be maintained by a married woman against a man. In the very recent case of Farrell v. Farrell, 118 Me. 441, 108 Atl. 648, this court has held that such a suit cannot be maintained against a male defendant, but the plaintiff in the pending suit frankly asks the court to overrule that decision, as well as the preceding decisions upon which that is based as being opposed to both reason and authority. This we are not inclined to do.

The course and scope of legislation and judicial decision on the point at issue may be briefly reviewed. An exhaustive discussion of the progress of legislation on the general subject of the legal rights of married women may be found in Haggett v. Hurley, 91 Me. 542, 551, 40 Atl. 561, 41 L. R. A. 362.

It is conceded that at common law a wife would have no standing in court in such a case. The earlier statutes in this state empowered a married woman to maintain an action in her own name for the preservation and protection of her property and the recovery of wages for personal labor not performed for her own family. These various acts are condensed in R. S. 1857, c. 6, § 3.

But it was held that these statutes did not give the wife the right to sue in tort in her own name, as, for instance, in an action for malpractice (Ballard v. Russell [1851] 33 Me. 196, 54 Am. Dec, 620) nor of malicious prosecution (Laughlin v. Eaton, 54 Me. 156). Ten years later the right was extended so that the former statute as amended by P. L. 1876, c. 112, reads as follows:

"She may prosecute and defend suits at law or in equity, either of tort or contract, in her own name, without the joinder of her husband, for the preservation and protection of her property and personal rights, or for the redress of her injuries, as if unmarried, or may do it jointly with her husband."

This language has continued unchanged to the present time and is now R. S. 1916, c. 66, § 5.

Upon this section the plaintiff rests her claim in the case at bar, contending that it is sufficiently broad to authorize the pending suit.

It is a familiar principle that statutes in derogation of the common law should be strictly construed. The court is to go no faster and no farther than the Legislature has gone. Mindful of this principle, our court has had occasion to construe the meaning and scope of the section under consideration.

In Hobbs v. Hobbs, 70 Me. 381, it was held that a wife could not maintain an action of assumpsit against her husband while the marriage relation was still subsisting. In construing the force and effect of the enlarging statute of 1876, the court say:

"It relates to cases when, by the very assumption, the husband may be a party with the wife or not, at her election. The design is to protect her from all marital interference in suits commenced by the wife alone or jointly with her husband, and to prevent his maintaining alone any action respecting his wife's property."

The same statute came under consideration again in Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589, where it was held that a woman after divorce could not maintain an action of tort against her former husband for an assault committed during coverture. The language of the court is this:

"According to the construction already given to the act of 1876, it does not so far modify the common law as to authorize a civil action by the wife against the husband to recover damages for an assault, nor against those who act with the husband and under his direction in doing such a wrong. It only authorizes her to maintain alone such actions as previously could be sustained when brought by the husband alone or by the husband and wife jointly. It enlarges not her right of action, but her sole right of action. It does not enable her to maintain suits which could not have been maintained before, but to bring in her own name those which before must have...