McKinney v. McKinney, 2217

Citation59 Wyo. 204,135 P.2d 940
Decision Date05 April 1943
Docket Number2217
PartiesMcKINNEY v. McKINNEY
CourtUnited States State Supreme Court of Wyoming

ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by Constance S. McKinney against Thomas M. McKinney to recover for injuries sustained by the plaintiff in an automobile accident. To review an adverse judgment, the plaintiff brings error.

Judgment affirmed.

For the plaintiff in error, there was a brief by E. E. Enterline and Madge Enterline, of Casper, Wyoming, and oral argument by E E. Enterline.

The case involves the legal right of a wife to maintain an action against her husband for damages for a personal tort committed by the husband against her. In the case of Christensen v McCann et ux., 41 Wyo. 101, this court held that the husband was not liable for damages for tort committed by the wife in the operation of an automobile driven by her, whereby a third person sustained injury and damage. In this case, the court quoted from 26-101, R. S., making the English common law the rule of decision in this state with certain exceptions, also from Sections 69-108 and 89-504, R. S relating to the same subject. The court also referred to Section 69-101-109, inc., R. S., referred to as the "Married Women's Acts." In the case of Naab et al. v. Smith, 55 Wyo. 181, it was held that the common law rule that the will of a woman is revoked by subsequent marriage was thereby abolished, although not repealed by any positive statute. We refer the court to the following constitutional and statutory provisions having a bearing upon this controversy, Art. I, Section 8, Art. VI, Section 1, Art. XIX, Section 9, and Section 89-1702, R. S. 1931. Also Section 8-102 and Section 97-205, R. S. We particularly direct the court's attention to Section 69-103, R. S. 1931, which provides that, "any woman may, while married, sue and be sued in all matters having relation to her property, person or reputation, in the same manner as if she were sole." In the case of Rains v. Rains, 46 P.2d 740, the Colorado Supreme Court upheld the right of the wife to sue her husband for a personal tort committed by him against her. Constitutional and statutory provisions on the subject in that state are almost identical with those of Wyoming. The Supreme Court of Oklahoma has likewise upheld the right of a wife to sue her husband for damages for assault and battery against her committed by her husband. Fiedeer v. Fiedeer (Okla.) 140 P. 1022. The constitution and laws of Oklahoma on the subject are identical with those of Wyoming. The Oklahoma case involved injuries sustained by a wife due to the negligent operation of an automobile by her husband. We consider this Oklahoma case to be a leading case on the matters involved in the present controversy, wherein plaintiff in error brought an action against her husband, the defendant in error, resulting from his negligent operation of an automobile in which they were riding. The Supreme Court of South Dakota in the more recent case of Scotvold v. Scotvold, 298 N.W. 266, has upheld the right of a wife to sue her husband for a personal tort, so that there are eleven states upholding such right at the present time. The opinion in the Oklahoma case is exhaustive, and contains a clear and complete review of the statutes of the various states and the decisions construing such statutes, and we believe it has completely and successfully answered every contention that can be urged against the wife's right to sue her husband in a tort action. We, therefore, urge that this court adopt the principles announced in the Colorado and Oklahoma courts and the cases cited in those opinions, which uphold the right of recovery and that the judgment of the court below be reversed.

For the defendant in error there was a brief by William B. Cobb and S. J. Lewis, of Casper, Wyoming, and oral argument by S. J. Lewis.

Plaintiff in error in her brief apparently concedes that the preponderance of decisions is to the effect that under the so-called "Married Women's Acts" adopted by the various states, a wife is not given a cause of action against her husband for damages resulting from tort. The Act did not create a cause of action. Its purpose, as indicated by its title, is to protect married women in their separate property and the enjoyment of the fruits of their labor. Chap. 82, C. L. 1876. It is true there is much inconsistency in the reported decisions construing so-called "Married Women's Acts." Annotations on the question are found in 6 A. L. R. 1038; 29 A. L. R. 1482; 33 A. L. R. 1406; 44 A. L. R. 794; 89 A. L. R. 118. The majority rule is stated in Cooley on torts, 4 Ed., Vol. 2, Sec. 169, Page 15. The majority rule denying the right is supported by: Thompson v. Thompson, 218 U.S. 611; Strom v. Strom, 107 N.W. 1047; Conley v. Conley (Mont.) 15 P.2d 922; Kelly v. Williams, 21 P.2d 58; Rogers v. Rogers, 177 S.W. 382; Butterfield v. Butterfield (Mo.) 187 S.W. 295; Austin v. Austin (Miss.) 100 So. 591; Emerson v. Co. (Nebr.) 216 N.W. 297; Mertz v. Mertz (N. Y.) 3 N.E.2d 597; Bushnell v. Bushnell, 131 A. 432; Harvey v. Harvey (Mich.) 214 N.W. 305; Lillienkamp v. Rippetoe (Tenn.) 179 S.W. 628; Lubowitz v. Taines, 198 N.E. 321; Leonardi v. Leonardi (Ohio) 153 N.E. 93; Oken v. Oken (R. I.) 117 A. 357; Heyman v. Heyman (Ga.) 92 S.E. 25; Osborn v. Keister (Va.) 96 S.E. 315; Maine v. Co. (Ia.) 210 N.W. 20; Dolmage's Estate (Ia.) 212 N.W. 553; Abbott v. Abbott (Me.) 24 Am. Rep. 27; Kozorowski v. Kalosinski (Pa.) 194 A. 663; Sargeant v. Fedor (N. J.) 130 A. 207; Broaddus v. Wilkenson (Ky.) 136 S.W.2d 1052; Schultz v. Schultz (Wash.) 118 P. 629; Nickerson v. Nickerson, 65 Tex. 281; Furstenburg v. Furstenburg (Md.) 136 A. 534; Blickenstaff v. Blickenstaff (Ind.) 167 N.E. 146. In each of the foregoing states, "Married Women's Acts" have been enacted giving marired women the right to sue and be sued for the protection of their persons and property. The so-called minority rule finds support in the following cases: Rains v. Rains (Colo.) 46 P.2d 740. In Colorado the so-called unity of husband and wife is a mere figure of speech without practical significance. Hedlund v. Hedlund, 209 P. 285. And estates by the entirety are not recognized. Whyman v. Johnston, 136 P. 76. This court has established a contrary view. Peters v. Dona, 49 Wyo. 306. Another case relied on by plaintiff in error is Courtney v. Courtney (Okla.) 87 P.2d 660. The Oklahoma "Married Women's Act" is somewhat broader than those generally found in other states. Fiedeer v. Fiedeer (Okla.) 140 P. 1022. North Dakota also permits an action for tort by a married woman against her husband. Fitzmaurice v. Fitzmaurice (N. D.) 242 N.W. 526. The statute in that state is identical in language with that of Oklahoma. The minority rule is established in Connecticut. Bushnell v. Bushnell (Conn.) 131 A. 432. Also in the state of New Hampshire. Gillman v. Gillman (N. H.) 95 A. 657, and in South Dakota. Scotvold v. Scotvold, 298 N.W. 266. North Carolina also follows the minority rule. Crowell v. Crowell (N. C.) 105 S.E. 206, in which there was a dissenting opinion. North Carolina follows South Carolina in permitting the maintenance of such action. Roberts v. Roberts (N. C.) 118 S.E. 9. In the state of Alabama, the minority rule is followed. Johnson v. Johnson (Ala.) 77 So. 335. In Arkansas, in a decision in which two of the judges dissented, the minority rule was established. Katzenberg v. Katzenberg (Ark.) 37 S.W.2d 696. A divided court in Wisconsin permits married women to sue their husbands for tort. Wait v. Pierce (Wisc.) 209 N.W. 475. In all of the Supreme Court decisions supporting the minority rule with the exception of Rains v. Rains and Fitzmaurice v. Fitzmaurice, supra, the decision was reached by a divided court. While Wyoming is a pioneer state in legislation pertaining to the emancipation of a married woman from the strictures of the common law, we respectfully submit that such emancipation has been by the legislature. Had our legislature intended that a married woman should have a cause of action against her husband for a tort, we believe it would have so stated in express terms. We believe the decision of the District Court is correct and that it should be affirmed.

RINER, Justice. BLUME, Justice. KIMBALL, Ch. J.

OPINION

RINER, Justice.

This case is hereby proceedings in error to review a judgment of the District Court of Natrona County in an action wherein Constance S. McKinney was plaintiff and Thomas M. McKinney was defendant. The party last mentioned was the husband of the plaintiff and still is. The parties will be subsequently mentioned as aligned in the District Court or by their marital relationship of husband and wife.

Summarized plaintiff's petition, after setting out certain preliminary allegations relative to the defendant's due compliance as owner of an automobile with the legal requirements necessary to obtain a registration number for this vehicle in Big Horn County, alleges that on September 4, 1938, about 5:30 in the morning, the defendant drove his car in a westerly direction upon United States Highway No. 20 to a "point about one mile east of Shoshoni, Wyoming. That at that time, and for some time prior thereto, there was and had been a pouring rain and that said Highway was in a slippery and dangerous condition, which facts were then known by the said defendant.

"That riding in said automobile with the said defendant upon invitation of the defendant and as his invited guest was the plaintiff, who then was, ever since has been and now is the wife of defendant.

"That the said defendant, at the time and place aforesaid, operated said automobile in a grossly negligent manner in this:

"That said defendant drove said automobile along and upon said Highway around a...

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