Kellar v. James
| Decision Date | 10 December 1907 |
| Citation | 59 S.E. 939,63 W.Va. 139 |
| Parties | KELLAR v. JAMES et al. |
| Court | West Virginia Supreme Court |
Submitted September 6, 1907.
Syllabus by the Court.
Statutes in derogation of the common law are strictly construed.
[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 320; vol. 10, Common Law, § 12.]
The rule requiring liberal construction of certain classes of statutes does not warrant an extension of them to the suppression of supposed evils or effectuation of conjectural objects and purposes, neither referred to nor indicated by any terms used, nor clearly within the spirit of the legislation.
[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Statutes §§ 316-320.]
The husband is not relieved from liability for the torts of the wife by the statutes of this state, known as the married women's laws.
[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 694-700.]
A wife is not jointly liable with her husband for a wrong perpetrated by him, in the doing of which she did not actually participate. She cannot be made liable by her mere prior or subsequent consent to, or approval of, the tortious act of the husband, or command or direction for the commission thereof.
A declaration against a husband and wife, charging the utterance of a slander by the husband on one occasion, and by the wife on another, pursuant to a conspiracy previously formed, to injure the plaintiff in respect to character, is demurrable for misjoinder of actions.
Error from Circuit Court, Tucker County.
Action by Verna Kellar against Nancy E. James and another for slander. From a judgment of dismissal, plaintiff brings error. Affirmed.
Cunningham & Stallings, for plaintiff in error.
Chas. D. Smith and Jas. P. Scott, for defendants in error.
In the circuit court of Tucker county, a demurrer was sustained to the declaration of Verna Kellar, alleging against the defendants, Nancy E. James and George McClellan James, slander and defamation of the character of the plaintiff, and to the consequent judgment of dismissal she obtained a writ of error.
The defendants were husband and wife, and the declaration charges, first, the utterance of slanderous language by the husband in the presence of certain persons named as well as others; second, the utterance of the same language by the wife in the presence of certain other persons named; and third, the utterance of the language by both defendants in pursuance of a conspiracy, previously formed between them, and the speaking and publication of the false, scandalous, malicious, defamatory, and insulting words, by collusion and conspiracy, with intent to defame and disgrace the plaintiff among her friends and neighbors and the citizens of the state, and to bring into disgrace and disrepute her good name, fame, and character. In reply to the view that the declaration sets up two causes of action, one against the husband alone for his wrongful act, and the other against both husband and wife for the wrongful act of the latter, and so is open to the objection of misjoinder of actions, it is urged that all the matters alleged constitute one cause of action, founded upon the charge of conspiracy, and this argument is supplemented by the contention that such a conspiracy between the husband and wife may now exist because of the supposed change in the status of the wife, wrought by our married women's statutes. These statutes, very similar in character and form to those adopted in other states, relate, for the most part, to the separate property of the wife, her rights and powers respecting the same, and freedom thereof from the control of the husband, and liability for his debts, and the enlargement of the rights and powers of married women respecting contracts and enforcement of the same. To a certain extent, they also free the husband from liability for the debts of the wife. Though not in exact conformity with the terms or scope of similar statutes of other states, the respects in which our statutes differ from them are relatively slight and unimportant. The primary object and general scope thereof are the same as those of modern married women's laws in other jurisdictions. In some states the courts have exonerated the husband from liability for the torts of the wife, without any warrant therefor in the letter of the statute, on the presumption of legislative intent to do so, arising out of deprivation of the husband of the control of the wife's property, and relief of the same from liability for his debts. These statutes are construed, in the jurisdictions in which such effect is given them, as if they had declared that a married woman should be deemed in all respects, as regards her power to contract, own, control, and manage property and liability for her acts and conduct, wrongful or otherwise, as if she were a feme sole. In doing so, the courts admit an interpretation which goes far beyond the letter of the statute. They set aside the common law in respect to matters as to which the statute is wholly silent, notwithstanding the rule requiring strict construction of all statutes in derogation of the common law. Moreover, they assume that the only reason for the husband's common-law liability for the wife's torts is found in the control which that law gave the husband over her property, notwithstanding the existence of other common-law principles and considerations which may reasonably be said to form, at least, a part of the ground of such liability. For many purposes, the wife's existence was deemed by that law to have been merged in that of the husband. She had no separate existence in law, and they were considered one person. In respect to the commission of many crimes, and wrongs not amounting to crime, done by the wife in the presence of her husband, she was deemed to have acted under his coercion, and was not liable either civilly or criminally. 21 Cyc. 1355. Our statute makes no reference to her liability or that of the husband for her wrongs. This branch of the law remains wholly untouched by any terms of the statutes. It seems to us that the application to them of the liberal rule of construction would not carry them into this untouched portion of the domain of law relating to...
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