In re Dolmage's Estate

• Decision Date: 08 March 1927
• Docket Number: 37471
• Citation: 212 N.W. 553,203 Iowa 231
• Parties: IN RE ESTATE OF ADAM DOLMAGE. v. FRANK DOLMAGE et al., Executors, Appellees C. C. HOVEY, Administrator, Appellant,
• Court: Iowa Supreme Court

212 N.W. 553

203 Iowa 231

IN RE ESTATE OF ADAM DOLMAGE.

C. C. HOVEY, Administrator, Appellant, v. FRANK DOLMAGE et al., Executors, Appellees

No. 37471

Supreme Court of Iowa, Des Moines

March 8, 1927

Appeal from Iowa District Court.--RALPH OTTO, Judge.

Proceedings in probate of the estate of Adam Dolmage, deceased, for the establishment and allowance of a claim for damages. A demurrer filed by the executors of the Dolmage estate to the claim was sustained, and, plaintiff electing to stand upon his pleading, judgment dismissing the claim and for costs was entered against him. The plaintiff appeals.

Affirmed.

Bernard McNeny, Edward P. Cronin, and Wallace & Claypool, for appellant.

Havner Flick & Powers, T. A. Lane, and C. H. Murphy, for appellees.

STEVENS J. EVANS, C. J., and FAVILLE and VERMILION, JJ., concur.

OPINION

STEVENS, J.

Florence and Adam Dolmage, husband and wife, resided in Iowa County, and both died testate on the same day, as the result of gunshot wounds intentionally inflicted by the husband. The claim, which was filed by the administrator with will annexed of the estate of Florence Dolmage, was for damages to her estate as the result of the assault upon her by her husband. The sole question presented on this appeal, therefore, is: May the wife maintain an action against her husband for personal injuries negligently or willfully inflicted upon her by her husband? That no such action would lie at common law is conceded by all parties.

It is the contention of appellant that the rule of the common law has been abrogated by the statutes of this state, and that the status and rights of a married woman existing prior to her marriage have been fully restored to her. The particular provision of the statute relied upon is Section 10462, Code of 1924, which is as follows:

"When any woman receives an injury caused by the negligence or wrongful act of any person, firm, or corporation, including a municipal corporation, she may recover for loss of time, medical attendance, and other expenses incurred as a result thereof in addition to any elements of damages recoverable by common law."

Other pertinent provisions of the statute also require careful consideration. The Code of 1873 recognized the right of a married woman to sue and be sued in all cases without joining her husband with her, and that an attachment or judgment in such cases might be enforced by or against her, the same as if she were single. Section 2562, Code of 1873. Also, that the wife might receive wages for her personal labor, maintain an action therefor in her own name, hold the same in her own right, and prosecute and defend all actions for the preservation of her rights and property, the same as if unmarried. Section 2211, Code of 1873. And also that, should the husband or wife obtain possession or control of property belonging to the other prior to the marriage, the owner might maintain an action therefor or for any right growing out of the same in the same manner and to the same extent as if unmarried. Section 2204, Code of 1873.

These provisions of the statute have been retained and are Sections 10992, 10461, and 10448, respectively, of the Code of 1924. They have all been construed by this court.

The right of the wife to maintain an action against the husband for a tort committed during coverture was denied in Peters v. Peters, 42 Iowa 182, decided in 1875. Heacock v. Heacock, 108 Iowa 540, 79 N.W. 353, was an action brought by the wife against the husband, to recover upon a written contract. It was held that the action could not be maintained. The decision in Latcham v. Latcham, 195 Iowa 221, 191 N.W. 977, which was an action upon a promissory note, was decided upon the ground that the instrument was without consideration. There is in this opinion a parenthetical reference to the Heacock case, in which it is indicated that the court was not therein reaffirming or approving the earlier case on the point involved. It is obvious from the holding of the cases cited that none of the statutes enacted prior to Section 10462 have been considered by this court as intended to confer a right upon the wife to maintain an action against the husband for a tort committed against her.

Section 10462 has been construed in two recent decisions by this court. In Maine v. Maine & Sons Co., 198 Iowa 1278, 201 N.W. 20, the holding of the Peters and Heacock cases was reaffirmed. The court, however, in the course of the discussion said:

"No claim is made in this case of a right to recover based upon Section 3477-a [Section 10462, Code of 1924], and we have no occasion to consider that statute. In this connection, however, the discussion in the Heacock case, supra, is illuminative. See, also, Thompson v. Thompson, 218 U.S. 611 (54 L.Ed. 1180, 31 S.Ct. 111). "

This statute was carefully considered and construed in Gardner v. Beck, 195 Iowa 62, 189 N.W. 962, which was an action by the administrator for damages for the wrongfully caused death of a married woman. The defenses pleaded were a general denial and the statute of limitations. The precise question involved upon this appeal was not before the court in the Gardner case. It was, however, pertinent to the questions there, requiring decision to construe the statute in all of its phases. What is there said touching the question under discussion is applicable, if not controlling, in this case. In that case we said:

"We hold, therefore, that it does not purport to create a new cause of action, to accrue in the first instance to the administrator of a woman, but that it does create new elements of damages. In so far as these additional elements of damages arise for wrongful death, they attach to the original cause of action arising in the lifetime of the decedent. The cause of action which passes to the administrator includes, not only damages for wrongful death, but, relating back to the date of the injury, it includes all damages ensuing therefrom during the lifetime of the decedent, as well as for her wrongful death. Out of such injury, only one cause of action accrues."

If the foregoing construction of the statute is adhered to, then obviously no right is conferred upon the wife to sue the husband for damages to her person or property. Its only purpose was to add to the elements of damages recoverable by her against third persons in certain cases.

There is a sharp division of opinion in the courts of this country as to the force and effect of state statutes construed with reference to the question before us. All courts readily concede that it is the legislative tendency to establish, so far as possible, equality of rights in favor of those sustaining the marriage relation. This legislative tendency has not, however, indicated a purpose to confer greater rights...