Lillienkamp v. Rippetoe

• Decision Date: 26 October 1915
• Citation: 179 S.W. 628
• Parties: LILLIENKAMP v. RIPPETOE.
• Court: Tennessee Supreme Court

Page 628

179 S.W. 628

LILLIENKAMP v. RIPPETOE.

Supreme Court of Tennessee.

October 26, 1915.

Certiorari to Court of Civil Appeals.

Action by Sara A. Lillienkamp against W. T. Rippetoe. A judgment of dismissal was affirmed by the Court of Civil Appeals, and plaintiff brings certiorari. Affirmed.

Green, Webb & Tate, of Knoxville, and McCanless, Coleman & Taylor, of Morristown, for plaintiff. W. N. Hickey, of Morristown, for defendant.

BUCHANAN, J.

The only question necessary to be decided is whether a divorced woman can maintain against her former husband an action for damages resulting from an assault and battery committed by him upon her person after the passage of chapter 26 of the Acts of 1913, and while they sustained toward each other the relation of husband and wife; the action having been instituted after the divorce, and within one year after the date of the battery.

The case is before us on plaintiff's petition for certiorari, seeking to reverse the judgment of the Court of Civil Appeals, which affirmed the judgment of the circuit court by which plaintiff's suit was dismissed at the point of a demurrer interposed by defendant.

Beyond all question, under the common law as it was in force in this state prior to the passage of the act of 1913, supra, such an action as this could not have been maintained. It was a fundamental principle of the common law that by marriage husband and wife became one. Her existence as a legal unit became merged into that of the husband, and during the continuance of the coverture she was capable of suing or defending an action only with his concurrence, and in his name as well as her own. It has been held in this state that neither spouse could maintain an action against the other for torts committed by one against the other during coverture. The holding was said to rest in part upon their unity by virtue of the marriage, which was said to preclude one from suing the other at law, and in part it was said to rest upon the respective rights and duties involved in the marriage relation. McKelvey v. McKelvey, 111 Tenn. (3 Cates) 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130. This holding is supported by a practically unanimous current of authority. Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Schouler's Domestic Relations, § 52 (4th Ed.); Cooley on Torts (2d. Ed.) §§ 223-233; 21 Cyc. 1519, 1520; Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387, and note; Freethy v. Freethy, 42 Barb. (N. Y.) 641; Schultz v. Christopher, 65 Wash. 496, 118 Pac. 629, 38 L. R. A. (N. S.) 780; Schultz v. Schultz, 89 N. Y. 644; Peters v. Peters, 156 Cal. 32, 103 Pac. 219, 23 L. R. A. (N. S.) 699; Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287, 40 L. R. A. 757, 72 Am. St. Rep. 550; Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589; Phillips v. Barnett, 1 Q. B. D. 436 (English).

In some of the cases cited above the insistence was made that, the marriage relation having been terminated by the divorce, the right of action revived, having been merely suspended during coverture; but in reply it was said:

"That the error in this insistence was in supposing that a right of action ever existed; that there was no civil remedy either during or after coverture, because there was no civil right to be redressed." Phillips v. Barnett and Abbott v. Abbott, supra.

See, also, McKelvey v. McKelvey, supra.

We do not understand plaintiff's brief to question the rule of the common law, as above set out. Her insistence is that the rule of the common law was abrogated by the following statutes of this state:

"If any person commits an assault and battery upon his wife, for any cause whatsoever, he is guilty of a misdemeanor, and punishable accordingly." Shan. Code 1896, § 6470.

Chapter 26 of the Public Acts of the year 1913:

"A bill for an act to be entitled `An act to remove disabilities of coverture from married women, and to repeal all acts and parts of acts in conflict with the provisions of this act.'

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that married women be, and are, hereby fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effects on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married.

"Sec. 2. Be it further enacted, that all acts and parts of acts in conflict with the provisions of this act be, and the same are, hereby repealed.

"Sec. 3. Be it further enacted, that this act take effect from and after January 1, 1914, the public welfare requiring it.

"Passed February 20th, 1913."

The constitutionality of the act of 1913 was assailed in Parlow v. Turner, 178 S. W. 766, and on that point this court, speaking through its Chief Justice, said:

"It is said the act is...