Pett-Morgan v. Kennedy
| Decision Date | 05 November 1895 |
| Docket Number | 9354-(44) |
| Parties | WILLIAM PETT-MORGAN v. WILLIAM KENNEDY and Wife |
| Court | Minnesota Supreme Court |
Appeal by defendant William Kennedy from an order of the district court for Ramsey county, Otis, J., overruling his demurrer to the complaint. Affirmed.
Order affirmed.
John L Townley and Theodore M. Holland, for appellant.
The common-law liability of a husband for his wife's torts was by necessary implication abrogated by Pub. St. 1858, c 61, § (106); Martin v. Robson (Freeman) 65 Ill 129; Norris v. Corkill, 32 Kan. 409, 4 P. 862; Bovard v. Kettering, 101 Pa. 181, 184; Harris v Webster, 58 N.H. 481. Such liability having been abolished, nothing short of a positive re-enactment could revive it. G. S. 1878, c. 69, § 6, was not such a re-enactment; nor was G. S. 1866, c. 69, § 5. See Quilty v. Battie, 135 N.Y. 201, 32 N.E. 47; Rowe v. Smith, 45 N.Y. 230; Fiske v. Bailey, 51 N.Y. 150; Baum v. Mullen, 47 N.Y. 577; Fitzgerald v. Quann, 62 How. Pr. 331, 109 N.Y. 441, 17 N.E. 354. Laws 1869, c. 56, § 6 (G. S. 1894, § 5536), is unconstitutional, for the reason that the subject was not expressed in the title of the act. Sutherland, St. Const. p. 94, § 87; Mississippi & R. R. B. Co. v. Prince, 34 Minn. 79, 24 N.W. 361; Matter of Application of Paul, 94 N.Y. 496, 506; In Matter of Sackett Street, 74 N.Y. 95. This section is also repugnant to the preceding sections of the act, and particularly to section 2. See, also, Laws 1887, c. 207 (G. S. 1894, § 5530). The words set out in the complaint are not actionable per se. See Holston v. Boyle, 46 Minn. 432, 49 N.W. 203; Cooley, Torts, 204, 205; Winchell v. Argus Co., 69 Hun, 354, 23 N.Y.S. 650; Pollard v. Lyon, 91 U.S. 225. The words must charge an indictable offense, involving moral turpitude and subjecting the person to infamous punishment. Newell, Defam. S. & L. 84; Cooley, Torts, p. 195; Pollard v. Lyon, supra; Redway v. Gray, 31 Vt. 292. So far as appears from the complaint, plaintiff was charged with misdemeanor punishable with a fine or imprisonment commutable to a fine. This is not an indictable crime, punishable with infamous punishment. Buck v. Hersey, 31 Me. 558; Warren v. Norman, Walk. (Miss.) 387; O'Hanlon v. Myers, 10 Richardson (S. Car.) 128; Broughton v. McGrew, 39 F. 672; Lemons v. Wells, 78 Ky. 117. The imputation does not involve moral turpitude. Seery v. Viall, 16 R. I. 517, 17 A. 552; Townshend, Slander & L. (4th Ed.) 163 et seq.
Frank P. Hopkins for respondent.
Acts similar to our married women act have been enacted in most of the states, and it has been held universally, except in Illinois, Kansas and New Hampshire, that these acts do not abrogate the common-law rule of the husband's liability for his wife's torts. Stewart, Husband & W. §§ 14, 15, and cases; Wheeler & W. M. Co. v. Heil, 115 Pa. 487, 8 A. 616; Fitzgerald v. Quann, 33 Hun, 652; affirmed, 109 N.Y. 441, 17 N.E. 354; Choen v. Porter, 66 Ind. 194; Ferguson v. Brooks, 67 Me. 251; Kowing v. Manley, 57 Barb. 479; Fowler v. Chichester, 26 Oh. St. 9; McQueen v. Fulgham, 27 Tex. 464; McElfresh v. Kirkendall, 36 Iowa 224; Zeliff v. Jennings, 61 Tex. 458; Luse v. Oaks, 36 Iowa 562; Seroka v. Kattenberg, 55 Law J. (N. S.) Q. B. D. 375; 23 Cent. Law J. 364. See, also, Dean v. Metropolitan E. Ry. Co., 119 N.Y. 540, 23 N.E. 1054. The words charged impute a crime. St. Martin v. Desnoyer, 1 Minn. 25 (41); West v. Hanrahan, 28 Minn. 385; Brooker v. Coffin, 5 Johns. 188. The charge involved moral turpitude. Wright v. Paige, 36 Barb. 438; Hoag v. Hatch, 23 Conn. 585; Todd v. Rough, 10 S. & R. 18; Torbitt v. Clare, 9 Ir. L. R. 86; Perdue v. Burnett, Minor (Ala.) 138; Cheadle v. Buell, 6 Ohio 67; Buckley v. O'Niel, 113 Mass. 193; Halley v. Gregg, 74 Iowa 563, 38 N.W. 416; Geary v. Bennett, 53 Wis. 444, 10 N.W. 602; Davis v. Carey, 141 Pa. 314, 21 A. 633; Brown v. Nickerson, 5 Gray, 1.
The paramount question presented by this appeal is whether a husband is liable for slanderous words uttered by his wife when he is not present, and in which he has not participated in any manner, -- in other words, has the common-law rule which makes the husband answerable in damages for the torts of his wife during coverture been abrogated by statute? Counsel for appellant does not claim that this rule has been wiped out by direct enactment, but earnestly insists that this is the inevitable result of legislation respecting married women and their property, their and its legal status. To determine this question, we are required to examine statutory enactments from the days of territorial legislation, keeping in mind the well-settled rules of construction that the common law will be held no further abrogated than the clear import of the language used in the statutes requires, and that an intention to change the common law will not be presumed from doubtful statutory provisions.
From the examination, we find that the earliest of our statutes relating to married women in their property, and in any way changing the common-law rules which theretofore prevailed, is found in Rev. St. 1851, c. 71, § 105, -- territorial legislation. This section appears in a chapter entitled "Issues, and the Mode of Trial," and as a part of the provisions respecting the issuance, levy, and satisfaction of executions in civil proceedings; and it seems to be a rearrangement and enlargement of the terms of chapter 375, Laws N.Y. 1849. We are unable to say more than this of its origin. It provided that all real or personal estate acquired by a female before her marriage, or to which she became entitled after marriage by inheritance, gift, grant, or devise, should be and continue hers after marriage, not liable for her husband's debts or liabilities, but liable for all of her debts contracted before marriage. We need not specially refer to the provisos, as they do not bear upon the question in hand. In Pub. St. 1858, this section, with a proviso added in 1858 (of no consequence here), appeared as section 106, c. 61, which chapter was also entitled "Issues, and the Mode of Trial." It is further to be noticed that it still retained its position among the provisions regulating the issuance, levy, and satisfaction of executions upon judgments in civil proceedings. While this statute was in force, it was assumed by this court that the common-law rule of a husband's liability still prevailed. Brazil v. Moran (1863) 8 Minn. 205 (236).
By G. S. 1866, c. 122, all of the legislation we have referred to was expressly repealed; and, in place thereof, there was enacted chapter 69, entitled "Married Women," which radically changed the status of married women, and greatly enlarged their rights, powers, duties, and liabilities. This was the first law upon the subject after statehood. The first section provided when and how married women might hold property in their own right, not to be disposed of without the consent of their husbands; the record of a schedule of the property owned by them when married being necessary to protect it as against their husband's creditors. The next three sections are not pertinent to this discussion, but, by the fifth, provision was made for the transaction of any business or trade by a wife in her own name and for her own benefit when abandoned by her husband, or in case he neglected to properly care for his family. All contracts made by the wife in the usual course of the business or trade were declared to be as valid and binding upon her as if she were sole, and she was to be free from all interference by her husband and his creditors in relation to the business or trade. To this section was appended a proviso "that the husband shall not be liable for any contract, default or tort of the wife made, done or incurred in the course of transacting such business or trade." Among the provisions of this chapter is one to the effect that a married woman may be sued upon any contract made or wrong committed before her marriage, the same as if she were single.
In the order of legislation, we now come to Laws 1869, c. 56, now incorporated into G. S. 1894 as section 5531 et seq.; and this enactment entirely superseded the law of 1866, supra. By this statute, further innovations were introduced, and again were the rights, powers, and liabilities of a married woman extended and enlarged, and she was expressly charged with personal liability for her torts; and it was enacted that the husband should not be held for her debts or contracts. Then, as if to emphasize the matter, and place the legislative intention beyond all doubt, it was provided (section 5536) that nothing in the act should be construed as exempting a husband from liability for torts committed by the wife.
Counsel for appellant have not called our attention to any other legislation which, in their opinion, is pertinent, except Laws 1887, c. 207 (G. S. 1894, § 5530), and of that we shall hereafter speak; nor have we been able to discover any and we are justified in asserting that there is none. The argument of counsel is mainly rested upon an application of the maxim, "Cessante ratione legis, cessat ipsa lex," to the territorial legislation found in Rev. St. 1851, c. 71, with the amendments in Pub. St. 1858, c. 61. Commenting upon the subsequent enactment (G. S. 1866, c. 69), and especially that part of it which absolves the husband from liability for a tort committed by the wife in the course of transacting a business or trade for herself, they argue that it cannot be allowed to have the effect of preventing the prior legislation or the remaining sections of chapter 69 from having its and their legitimate and natural result; namely, of relieving the husband from the burden imposed at common law. And, referring to the act of 1869 (now found in G....
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