Rains v. Rains

• Decision Date: 10 June 1935
• Docket Number: 13332.
• Citation: 97 Colo. 19,46 P.2d 740
• Parties: RAINS v. RAINS.
• Court: Colorado Supreme Court

46 P.2d 740

97 Colo. 19

RAINS v. RAINS.

No. 13332.

Supreme Court of Colorado

June 10, 1935

In Department.

Error to District Court, City and County of Denver; H. E. Munson Judge.

Action by Leona Neveu Rains against Glen A. Rains. Judgment for plaintiff, and defendant brings error.

Affirmed.

Lindsey & Larwill, D. K. Wolfe, Jr., and E. C Burck, all of Denver, for plaintiff in error.

S Harrison White and William O. Perry, both of Denver, for defendant in error.

BUTLER Chief Justice.

Leona Neveu Rains, referred to herein as the plaintiff, recovered judgment against her husband, Glen A. Rains, referred to herein as the defendant, for damages for injuries sustained in an automobile accident caused by his negligence. He seeks a reversal of the judgment.

1. The first assignment raises the question whether a wife may sue her husband for a tortious wrong against her person.

We have adopted the common law of England so far as it is applicable and is of a general nature and has not been altered by legislation. C. L. § 6516. At common law the legal existence of the wife was merged in that of her husband; they were regarded as one person in law, and the husband was that person. He had control, almost absolute, over the person of his wife. She was in a condition of complete dependence, and was bound to obey her husband. 13 R.C.L. p. 983. Bacon, in his Abridgement, Title Baron and Femme, B, says: 'The husband hath, by law, power and dominion over his wife, and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner.' Speaking of the common-law reason for imposing legal disability upon married women, Walker, in his American Law, § 102, says: 'In other words, lest the wife might be sometimes tempted to assert rights in opposition to her husband, the law humanely divested her of rights.' As a result of the unity of husband and wife, she could not in her own name sue a third person to enforce her rights, it being the law that such action had to be prosecuted by husband and wife jointly, and, of course, it would be absurd for a husband to join his wife in an action against himself. Nor could the husband sue the wife. By doing so, he would be suing himself, for, as we have seen, husband and wife, in contemplation of law, were one, and he was that one. 13 R.C.L. pp. 983, 1394. Statutes that were designed to remove from married women the disabilities imposed upon them by the common law have been enacted in most, perhaps all, of the states. They vary greatly in their scope, some being narrow and illiberal, others broad and liberal. The same may be said of the construction given by the courts to the various statutes. The earlier decisions, especially, were narrow and illiberal, a fact to which, in Wells v. Caywood, 3 Colo. 487, we called attention in the following language: 'The courts * * * in the States which were the first to pass enactments for the enlargement of the rights of married women, regarding such enactments as a violent innovation upon the common law, construed them in a spirit so narrow and illiberal as to almost entirely defeat the intention of the law-makers. * * *'

Blackstone, in his Commentaries (Book 1, p. 422) remarked: 'Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.'

Whatever may be the law elsewhere, if the common-law fiction of unity ever existed in this state, it does not exist here now. Hedlund v. Hedlund, 87 Colo. 607, 290 P. 285, 286, and the statute and cases there cited. In the Hedlund Case we said: 'First, it is assumed that the common-law fiction that husband and wife are one still persists in this state. In Whyman v. Johnston, 62 Colo. 461, 163 P. 76, we said that the fiction of one legal personality no longer exists. One has but to read the statutes of the state and the decisions of this court and of the Court of Appeals to realize that in the present state of the law the so-called unity of husband and wife is a mere figure of speech no longer having any practical significance.'

In Schuler v. Henry, 42 Colo. 367, 94 P. 360, 14 L.R.A. (N. S.) 1009, we said: 'By our statute there is a complete change in all this; and the Colorado wife is not wife as at common law, but is vested with absolute control and dominion over her property and her person. She may sue and be sued as though she were sole. She may engage in business on her own account. She may sell and convey her property without the consent of her husband. Her property is not liable for her husband's debts. She is entitled to the earnings of her labor. She may execute any bond, bill, or promissory note, and may contract debts in her own name; and in every suit or proceeding, when judgment is rendered against her, it may be enforced by execution against her. She may dispose of her property by will, and the law places both husband and wife upon the same level with reference to the disposition of property by will. The provisions of the statute are slightly different, but the effect is the same, and neither can dispose of more than one-half of the property without the consent of the other. Either husband or wife may incur indebtedness for the family expenses, and for such indebtedness either or both will be liable. The husband is not liable for the debts of his wife contracted Before marriage, except to the extent that he may have received property from her. The right of the husband to beat his wife or to imprison her to enforce obedience to his will is no longer recognized as a right by our race, and such treatment of the wife is practiced only by those of brutish instincts. The husband is no longer entitled to the exclusive possession of the children. Although there exist certain reciprocal obligations and duties growing out of the marital relation, whatever they are, they are not based upon the supposed vassalage of the wife or the imagined lordliness of the husband. Thus it will be seen that the wife in Colorado has been wholly emancipated 'from the condition of thraldom in which she was placed at common law.''

As the nonliability of the husband to the wife for damages for a personal tort was founded upon the common-law fiction that husband and wife were one (13 R.C.L. pp. 1394, 1396), it would seem to follow that where that fiction is abolished, the nonliability does not survive. When the foundation is removed, the superstructure falls. 'Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.' Broom's Legal Maxims (7th Ed.) 159. In Wells v. Caywood, supra, we said: 'The wife in Colorado is the wife under our statutes, and not the wife at common law, and by our statutes must her rights be determined.'

We are not unaware of the fact that in the greater number of jurisdictions the courts have held that the wife cannot sue the husband for an injury to her person. 13 R.C.L. p. 1394 et seq. In some of the cases the courts construed statutes wholly unlike ours; in others, the statutes somewhat resemble ours; and in still others, the statutes are practically the same as ours. It would be a fruitless task to discuss the various terms of the many statutes. To attempt to reconcile the decisions would be to attempt the impossible. In 13 R.C.L. pp. 1396, 1397 it is said: 'Opposed to the general view taken by the courts as to the effect of the married women's statutes on her right to sue her husband for a tort committed by him on her person, the statutes have been construed in several very recent cases to so abrogate the common law fiction of the identity of husband and wife as to permit a wife to maintain an action against her husband for a tort to her person. And it has been said that apart from the consideration of the particular forms of statutes involved, the opinions in these recent cases together with the dissents in earlier cases construing statutes concerning married women's rights, seem to indicate a growing inclination to construe such statutes liberally, and, if possible, to give this right of action thereunder, and not to consider it as opposed to 'public policy' so to do.'

Section 6, article 2, Colorado Constitution, is as follows: 'That courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character. * * *' In this state a wife, as we have seen, is a person independent of the husband, and this section guarantees her a remedy for every personal injury without making any exception as to the person inflicting the injury, who may be her husband or a third person.

Section 5577, Compiled Laws, provides: '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.' Here, also, there is no exception as to the person she may sue.

Section 6 of the Code of Givil Procedure is as follows: 'A married woman may sue, and be sued in all matters, the same as if she were sole.' There is no exception as to the person she may sue.

It is urged with some force that this section relates to procedure only, and does not confer a substantive right. But that objection cannot be urged successfully against section 6, article 2, of the State Constitution or section 5577, Compiled Laws, quoted above.

If A, Before his marriage to B, intentionally or negligently injures her person, she, a feme sole, could sue him for damages. If he so injures her after their marriage, she has the same right to sue him, because, under the Constitution and the statutes of this state, as we construe them, she may sue in all matters the same as if she were sole.

In Wells v. Caywood, supra, we...