Kyle v. Kyle
| Decision Date | 25 April 1941 |
| Docket Number | No. 32749.,32749. |
| Citation | 210 Minn. 204,297 N.W. 744 |
| Parties | KYLE v. KYLE. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Dakota County; W. A. Schultz, Judge.
Action for personal injuries by Alice Kyle against Lee Kyle. From an order overruling his demurrer to the complaint, defendant appeals.
Reversed.
Fletcher, Dorsey, Barker, Colman & Barber and Charles F. Noonan, all of Minneapolis, for appellant.
Grannis & Grannis, of South St. Paul, for respondent.
Defendant's demurrer to the complaint was overruled with the certificate that the question presented was important and doubtful. Defendant appeals.
The complaint alleges that the parties during the time mentioned therein were and now are husband and wife; that on December 24, 1939, plaintiff was a passenger in defendant's automobile driven by him over a highway in the state of Wisconsin near Amery; that defendant so negligently drove and controlled the car that it left the highway, bruising and injuring plaintiff externally and internally to her damage in the sum of $8,000.
The action is maintainable in Wisconsin where it arose. Wait v. Pierce, 191 Wis. 202, 209 N.W. 475, 210 N.W. 822, 48 A.L.R. 276. The statute there construed is substantially the same as Mason Minn.St. 1927, § 8616. There was a vigorous dissent concurred in by three justices. It remains the law of Wisconsin. However, in 1906, prior to the decision in the Wait case, this court construed our married women's act, Mason Minn.St.1927, c. 72, particularly § 8616 thereof, and held in Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A.,N.S., 191, 116 Am.St.Rep. 387: "A married woman cannot, either before or after a divorce, maintain a civil action against her husband for a personal tort committed by him against her during coverture." She has the right to maintain suit against the husband for damage to her property by his tort. Gillespie v. Gillespie, 64 Minn. 381, 67 N.W. 206. The decision in the Strom case has been adhered to, in 1920, by Drake v. Drake, 145 Minn. 388, 177 N.W. 624, 9 A.L.R. 1064; in 1922 (an automobile injury action) by Woltman v. Woltman, 153 Minn. 217, 189 N.W. 1022; and in 1935, by Patenaude v. Patenaude, 195 Minn. 523, 263 N.W. 546. In Drake v. Drake, supra, the court called attention to the settled rule against the maintenance of a civil action by one spouse against the other except where permitted by statute. The Legislature has thus far not seen fit to make any change.
But plaintiff contends the cause of action pleaded being transitory, and, having accrued in the state of Wisconsin where it is maintainable, the rule of comity demands that it be enforced by the courts of this state. But the rule of comity does not prevail when opposed to a well-established law of the forum. And it appears to us that there is a well-established law of this forum that no wife can maintain a civil action against her husband for any tort committed against her person, without regard to the place where the tort was committed. In three states where, under statutes substantially like our own, the law has been declared that a wife may not maintain an action for a tort committed against her by her husband, it has been held that she can not there maintain such action even though maintainable in the state where the tort occurred. Kircher v. Kircher, 288 Mich. 669, 286 N.W. 120; Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, 108 A.L.R. 1120; Poling v. Poling, 116 W.Va. 187, 179 S.E. 604. We have been cited to no case, and have found none to the contrary. It may be noted that two justices dissented in the Mertz case, and that the Legislature has since changed their statute permitting a wife to sue her husband for personal injuries inflicted upon her by the husband's tort.
This so-called public policy doctrine touching the right of a spouse to sue the other for torts inflicted is clearly recognized by the court in Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342, where it was held that though the plaintiff had been injured in the state of Illinois through the defendant's negligent operation of his automobile in which she was a passenger, and she thereby had acquired a cause of action, it was lost when she after the injury returned to her home in Wisconsin and married the defendant; so notwithstanding the action was brought at their home in Wisconsin it could not be maintained because in Illinois a wife cannot maintain a civil suit against her husband for his torts. Plaintiff cites with some assurance Miller v. J. A. Tyrholm & Co., Inc., 196 Minn. 438, 265 N.W. 324; but a reading of that decision will readily convince an open mind that it is not determinative of the question now presented. Where the law of the forum permits a wife to maintain a civil suit against her husband for personal injuries through his wrongful or negligent acts there is no difficulty in the wife there suing if her cause of action is maintainable against the husband under the law of the state where the tort was committed. Dawson v. Dawson, 224 Ala. 13, 138 So 414; Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404; Howard v. Howard, 200 N.C. 574, 158 S.E. 101; Forbes v. Forbes, 226 Wis. 477, 277 N.W. 112. In the last-cited case it was deemed immaterial that the parties were domiciled in Illinois where the wife could not maintain the suit. So if this action had been instituted in the courts of Wisconsin, defendant could not have urged that the suit could not be maintained because in Minnesota, their domicile, such a suit was not maintainable.
Plaintiff refers to Chubbuck v. Holloway, 182 Minn. 225, 234 N.W. 314, 868; Kertson v. Johnson, 185 Minn. 591, 242 N.W. 329, 85 A.L.R. 1. But it is to be noted that each case was based on the survival statute in Wisconsin and that the cause of action was for death by wrongful act, which might be considered as involving property rights.
We are not unmindful of the fact that the growth of the motor vehicle traffic since the decision of Strom v. Strom, supra, has multiplied the hazards to life and limb to which all are exposed. This makes it necessary for every owner of such vehicle to carry insurance against loss occasioned by the negligence of the one he permits to operate the same. If such owner be married, no doubt he desires that his wife and children should be protected against his or his agent's negligent operation of his automobile. The suit against him and his insurer by his wife or child who has been injured by the negligent operation of his car would not tend to any disturbance in the family relation. But these and other considerations are for the Legislature. In Restatement, Conflict of Laws § 612, the rule is stated that "No action can be maintained upon a cause of action created in another state the enforcement of which is contrary to the strong public policy of the forum." We think there is a strong public policy in this state, as established by our decisions since Strom v. Strom, supra. This policy is forcefully expressed where a wife was charged with larceny from husband. State v. Arnold, 182 Minn. 313, 235 N.W. 373.
The order is reversed.
The "well established policy" of this state which forbids the maintenance of actions by one spouse against the other for personal torts arose in Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A.,N.S., 191, 116 Am.St.Rep. 387, from a reluctance of this court to hold that our married women's act modified the common-law rule as to personal torts. See 38 Harv.L.Rev. 383. We had previously held that a wife had a remedy for her husband's torts against her property. Gillespie v. Gillespie, 64 Minn. 381, 67 N.W. 206. Through subsequent expansion, the prohibition of Strom v. Strom, supra, progressed from assault and battery to persistent nagging in Drake v. Drake, 145 Minn. 388, 177 N.W. 624, 9 A.L.R. 1064, which the husband sought to enjoin; to negligence of the husband during coverture in Woltman v. Woltman, 153 Minn. 217, 189 N.W. 1022; and to negligence before coverture in Patenaude v. Patenaude, 195 Minn. 523, 263 N.W. 546. The foundation for this policy, which was neither mentioned nor intimated in Strom v. Strom, supra, first appeared in Drake v. Drake, supra, which said, in declining to aid the husband, that torts of this nature are so disruptive to "the welfare of the home, the abiding place of domestic love and affection," that relief should be denied on the ground that "if permitted to slumber in the home closet [they] would silently be forgiven or forgotten." 145 Minn. at page 391, 177 N.W. at page 625, 9 A.L.R. 1064.
Although there is no occasion now to reexamine the validity of the original rule, yet it might be noticed that Strom v. Strom, supra, ignored an earlier statement to the contrary where Mr. Justice Mitchell, in speaking of our married women's act, said its purpose was "to preserve the separate legal existence of a married woman in respect to all her rights of person and property, and, to the extent necessary to the full exercise and protection of these rights to give her in her own name all the remedies in the courts which she would have if unmarried." Gillespie v. Gillespie, 64 Minn. 381, 383, 67 N.W. 206, 207. Obviously, one of such rights of "person" of a person "unmarried" was the authority to proceed against another for a personal tort, whether intentional or unintentional.
Furthermore, the strict policy which is attributed to Strom v. Strom, supra, has not been followed, or deemed controlling, in two more recent decisions where occasion was presented for narrow adherence to this alleged policy. The first, Albrecht v. Potthoff, 192 Minn. 557, 257 N.W. 377, 379, 96 A.L.R. 471, did not refuse to allow an administrator to sue a negligent father under the wrongful death statute although the mother, who could not sue the father directly, was the sole beneficiary. There we went on record as not opposed to a wife's receipt of...
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