Norris v. Corkill

• Decision Date: 09 October 1884
• Parties: LAVINA NORRIS v. MARSHA CORKILL, et al
• Court: Kansas Supreme Court

4 P. 862

32 Kan. 409

LAVINA NORRIS v. MARSHA CORKILL, et al

Supreme Court of Kansas

October 9, 1884

Error from Sedgwick District Court.

ACTION for slander, brought by Lavina Norris against Marsha Corkill and T. D. Corkill. The petition (court and title omitted) is as follows, to wit:

"The plaintiff, Lavina Norris, complains of the defendants, Marsha Corkill and T. D. Corkill, and for cause of action states that the said Marsha Corkill and T. D. Corkill are husband and wife, and were so at the time of the alleged grievances hereinafter mentioned; that on or about the 23d day of November, 1883, at and in the county of Sedgwick, state of Kansas, the defendant Marsha Corkill, intending to injure this plaintiff in her good name, fame and credit, and to bring her into public scandal and disgrace, and to cause it to be suspected and believed by her neighbors and other citizens of the vicinity that the plaintiff was guilty of the offenses and misconduct hereinafter mentioned and charged upon her, in a certain discourse which said defendant Marsha Corkill [in the presence and hearing] of divers persons falsely and maliciously spoke of the plaintiff the defamatory words following, that is to say, (having immediately previous thereto called one Ella Daugett a whore): 'What better are you?' (meaning the plaintiff,) 'you are nothing but an old whore yourself; we don't keep the house that you do;' (meaning a house of ill-fame;) 'you pretend to be a good religious woman, don't you?' (spoken in an ironical manner, and intended to cast upon the plaintiff a disreputable character.) By means of the speaking of which false, malicious and defamatory words, the plaintiff has been and is greatly injured in her good name and credit, and brought into public scandal and disgrace among her neighbors and the public.

"Wherefore the plaintiff, Lavina Norris, prays judgment against the defendants, Marsha Corkill and T. D. Corkill her husband, for the sum of $ 5,000 damages, together with costs of this suit."

The defendant T. D. Corkill demurred to the petition as not stating facts sufficient to constitute a cause of action against him. At the February Term, 1884, the court sustained the demurrer and dismissed the case as to T. D. Corkill, to which ruling the plaintiff excepted, and brings the case here.

Judgment affirmed.

G. W. C. Jones, and O. H. Bentley, for plaintiff in error.

Stanley & Wall, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The question presented in this case is, whether the husband is liable for the slanderous words spoken by his wife when he is not present and in which he in no manner participates. The rule of the common law makes the husband liable for the torts of his wife committed during coverture. The reason assigned for this liability is, that the husband is entitled to the rents and profits of the wife's real estate during coverture, and to the absolute dominion over her personal property in possession. Another ground of this liability at common law, sometimes given, is that the wife, by her marriage, is entirely deprived of the use and disposal of her property and can acquire none by her industry; that her person, labor and earnings belong unqualifiedly to the husband. (Reeves's Domestic Relations, 3; Tyler on Infancy and Coverture, § 233.)

Again, the husband by common law might give the wife moderate correction, for, as he was to answer for her misbehavior, the law thought it reasonable to intrust him with this power of restraining her by domestic chastisement in the same moderation that a man is allowed to correct his apprentices or children, for whom the master or parent is also liable in some cases to answer. (1 Blackstone's Com., Wendell's ed., 444, 445.)

Under the provisions of our statute, the reasons assigned for the liability of the husband for the torts of his wife no longer hold good, and therefore, in our opinion, under the changes made by the statute, the liability no longer exists. It is a part of the common law that where the reason of the rule fails, the rule fails with it.

At common law the husband...