Koenigs v. Travis

• Decision Date: 02 March 1956
• Docket Number: No. 36719,36719
• Citation: 246 Minn. 466,75 N.W.2d 478
• Parties: Irene KOENIGS, same person as Eileen Koenigs, Plaintiff, v. Margaret TRAVIS and Richard W. Travis, Defendants and Third-Party Plaintiffs, Appellants, and Arnold Koenigs and Marvin J. Koenigs, Third-Party Defendants, Respondents.
• Court: Minnesota Supreme Court

Page 478

75 N.W.2d 478

246 Minn. 466

Irene KOENIGS, same person as Eileen Koenigs, Plaintiff, v. Margaret TRAVIS and Richard W. Travis, Defendants and Third-Party Plaintiffs, Appellants and Arnold Koenigs and Marvin J. Koenigs, Third-Party Defendants, Respondents.

No. 36719.

Supreme Court of Minnesota.

March 2, 1956.

Syllabus by the Court.

1. The defendant may implead for contribution if it appears he will be obliged to pay and payment is not a requisite to his action for contribution.

2. The right given a litigant to implead another is not necessarily an absolute right since it rests in the discretion of the trial court.

3. The common-law rule as to marital immunity where torts against the person are involved is in force in this state, and the wife cannot during coverture maintain a suit against her husband for a tort committed by him against her person whether the tort was committed before or after the marriage, nor can she, either before or after a divorce, maintain a civil action against her busband for a personal tort committed by him against her during coverture.

4. Where contribution is sought, the party seeking contribution is held to the rule that common liability is the very essence of an action for contribution.

5. A right of contribution does not accrue between tortfeasors unless they were cotortfeasors or joint wrongdoers in the sense that their tort, or torts, imposed upon them a common liability to the injured party.

6. A party compelled to discharge a liability for a tort cannot recover contribution from another unless his participation in the tort gave the injured party a cause of action against him.

7. In this state contribution has been extended to joint tortfeasors by the common law and this extension has since invariably been attended by common-law liability restrictions.

8. Liability for antenuptial torts is extinguished by marriage in this state under the common-law rule of marital immunity, and that rule is likewise inherent in the policy of contribution as between tortfeasors.

Bang, Nierengarten & Hoversten, Austin, for appellants.

Rodney A. Dunnette, Austin, for respondents.

NELSON, Justice.

Plaintiff was a passenger in an automobile owned and operated by Marvin J. Koenigs when it was involved in an accident with another automobile owned and operated by Richard W. Travis. The accident occurred on October 18, 1953, at a street intersection in the city of Austin. On October 27, 1953, plaintiff, whose name was formerly Irene Durben, and Marvin J. Koenigs were married. Plaintiff subsequently commenced an action against Margaret Travis and Richard W. Travis as defendants. Later the defendants were granted leave to commence an action as third-party plaintiffs against Arnold Koenigs and Marvin J. Koenigs and to make them third-party defendants. Said third-party defendants moved the court for summary judgment in their favor; the motion was granted; and this appeal is from the judgment dismissing the third-party action.

The defendants and third-party plaintiffs, in their assignments of error on appeal, contend that the court erred in directing entry of summary judgment in favor of the third-party defendants on the grounds: (1) That the third-party action had been prematurely commenced, and (2) that a third-party action in indemnity or contribution would not lie because of the marriage of the plaintiff to the third-party defendant Marvin J. Koenigs subsequent to the accident but before instituting the original negligence suit.

The issues on appeal were stated as follows:

'1. May a tort-feasor bring a third-party action in contribution or indemnity against a co-tort-feasor in the same accident before the first tort-feasor has paid any or all of the claim brought against him by the injured party?'

'2. If a female passenger in an automobile involved in a two-car collision marries the driver-owner of the car in which she was a passenger Subsequent to such accident in which she is injured and prior to her suit against the drive-owner of the second car in such collision, can the driver-owner of the second car bring a third-party suit in indemnity or contribution against her then husband?'

1--2. Whether a tortfeasor may bring a third-party action in contribution or indemnity against a cotortfeasor in the same accident does not present the important question here. Such impleader became possible under M.S.A.1949, § 540.16, by amendment, L.1947, c. 152. Under Rule 14.01 of Rules of Civil Procedure, superseding § 540.16, a defendant is authorized to implead a party 'who is or may be liable to him for all or part of the plaintiff's claim against him.' The purpose of this rule is to permit the defendant to assert an independent claim against such third party which he otherwise would assert in another action, thus preventing a multiplicity of suits. This is a rule of procedure and does not create any substantive right. Neither does it abridge, enlarge, or modify the substantive rights of any litigant. A prerequisite to the use of the rule is that some substantive basis for a third-party claim be found to exist whether the basis be one of indemnity, subrogation, contribution, warranty, or other substantive right. This right given a litigant to implead another is not necessarily an absolute right since it rests in the discretion of the trial court. ¹ As might be surmised from the above statement of the rule, contribution is predicated on common liability. Payment by defendant is not a prerequisite to his action for contribution. A defendant may implead for contribution if it appears he will be obliged to pay. 4 Dunnell, Dig. (3 ed.) § 1920; Anderson v. Kenosha Auto Transp., D.C.Minn., 6 F.R.D. 265.

While the method of impleading the third-party defendants on the basis of contribution may in the instant case have been perfectly proper under the rules of procedure, that feature of the case, which is one in pleading, does not present the determinative question here. The determinative question presents itself in the second of the legal issues.

3. We are confronted with the well-established common-law rule that a married woman cannot maintain an action against her husband for damages claimed to have been suffered by her through the negligence of her husband prior to her marriage to him. In this state the courts have adhered to the rule that, whether the tort is committed during coverture Or prior to their marriage, a wife cannot maintain an action against her husband, nor a husband against his wife, for a tort committed by one against the other.

In the case of Patenaude v. Patenaude, 195 Minn. 523, 263 N.W. 546, the wife as plaintiff sued to recover damages for personal injuries suffered by her claimed to have been caused by the negligence of the defendant in operating an automobile on a public highway. In that case the accident causing the injury happened on August 7, 1934. Plaintiff and defendant were married on January 17, 1935. Their marriage relation continued, and action was thereafter commenced by the wife against the husband to recover for her injuries on the grounds of negligence committed by him. Plaintiff in that case based her claim on her right to sue under Mason St.1927, § 8616, entitled 'Separate legal existence.' ² This court answered in the negative and said that 'The fact that, Prior to their marriage, plaintiff commenced an action against defendant for the same cause, which action she thereafter dismissed, does not create any estoppel or entitle her to any relief in the present suit.' (Italics supplied.)

This court referred therein to Drake v. Drake, 145 Minn. 388, 391, 177 N.W. 624, 625, 9 A.L.R. 1064, 1066, wherein this court said:

'* * * But the welfare of the home, the abiding place of domestic love and affection, the maintenance of which in all its sacredness, undisturbed by a public exposure of trivial family disagreements is so essential to society, demands and requires that no new grounds for its disturbance or disruption by judicial proceedings be engrafted on the law by rule of court Not sanctioned or made necessary by express legislation.' (Italics supplied.)

A majority of the courts adhere to the common-law rule that the wife cannot during coverture maintain a suit against her husband for a tort committed by him against her person, and other jurisdictions have held, as this court held in the Patenaude case, that the rule applies whether the tort was committed Before or after the marriage. Spector v. Weisman, 59 App.D.C. 280, 40 F.2d 792; Wolfer v. Oehlers, 8 N.J.Super. 434, 73 A.2d 95; Kennedy v. Camp, 14 N.J. 390, 102 A.2d 595; Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320; Newton v. Weber, 119 Misc. 240, 196 N.Y.S. 113; Kujek v. Goldman, 9 Misc. 34, 29 N.Y.S. 294; Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263; Webster v. Snyder, 103 Fla. 1131, 138 So. 755; Henneger v. Lomas, 145 Ind. 287, 44 N.E. 462, 32 L.R.A. 848; Gottliffe v. Edelston, (1930) 2 K.B. 378. ³

The question came squarely before this court in the Patenaude case as to whether the statute providing for 'Separate legal existence' of women permitted tort actions by one spouse against the other. The court held that the statute did not so modify or change the common-law rule as to permit a suit for any tort against the person by one spouse against the other where the wrong was committed during coverture and that for this court then to hold that the statute intended to modify the common law to the extent of permitting such suits, Where the wrong was committed before marriage and suit was brought after marriage, would be illogical; that nothing contained in the statute indicated any such legislative intent; and that the language of the statute could not be construed to show that such partial modification of the common law as to suits in tort by one spouse against the other was intended or made. Mr. Justice I. M. Olsen, speaking for this court, said, 195 Minn. 526, 263 N.W. 548:

'* * *...