Rogers v. Rogers

• Decision Date: 25 May 1915
• Citation: 177 S.W. 382,265 Mo. 200
• Parties: GEORGIA B. ROGERS, Appellant, v. DAVID B. ROGERS et al
• Court: Missouri Supreme Court

177 S.W. 382

265 Mo. 200

GEORGIA B. ROGERS, Appellant, v. DAVID B. ROGERS et al

Supreme Court of Missouri, Second Division

May 25, 1915

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Affirmed as to David B. Rogers; reversed and remanded as to other defendants.

William S. Herndon and Erasmus C. Hall for appellant.

(1) The petition states a cause of action against defendants Frank H. Fulton and C. M. McConkey. Stanley v. Union Depot Co., 114 Mo. 606; and cases cited under next point. (2) The petition states a cause of action against the defendant Leroy A. Kelly, and there is no misjoinder of defendants. Dulaney v. Buffum, 173 Mo. 1; Allred v. Bray, 41 Mo. 484; Murphy v. Wilson, 44 Mo 313; Welsh v. Stewart, 31 Mo. 376; Meade v Railroad, 68 Mo.App. 92; Walters v. Hamilton, 75 Mo.App. 237; McDonald v. Railroad, 165 Mo.App 75; Allen v. Forsythe, 160 Mo.App. 262. (3) The petition states a cause of action against David B. Rogers, the same as against the other defendants, though he was the husband of plaintiff at the time. (4) Since the enactment of the "Married Women's Acts," Sec. 3468, R. S. 1889, now Sec. 1735, R. S. 1909, and Sec. 6864, R. S. 1889, now Sec. 8304, R. S. 1909, a married woman may sue and be sued as a feme sole in actions at law and in equity. Rice, Stix & Co. v. Sully, 176 Mo. 107; Grimes v. Reynolds, 184 Mo. 679; Beagles v. Beagles, 95 Mo.App. 338; Todd v. Terry, 26 Mo.App. 598; Winn v. Riley, 151 Mo. 61; Grimes v. Reynolds, 94 Mo.App. 576; Woodward v. Woodward, 148 Mo. 241; Smoot v. Judd, 161 Mo. 686; Bank v. Hageluken, 165 Mo. 443. (5) And she may sue her husband at law, for a tort committed by him. Beagles v. Beagles, 95 Mo.App. 338; Rice, Stix & Co. v. Sully, 176 Mo. 129; Clow v. Chapman, 125 Mo. 107; Grimes v. Reynolds, 184 Mo. 693; Bank v. Hageluken, 165 Mo. 443; Hudson v. Wright, 204 Mo. 413; Montgomery v. Montgomery, 142 Mo.App. 486; O'Day v. Meadows, 194 Mo. 614; Rossier v. Railroad, 115 Mo.App. 520; Brown v. Brown, 89 A. 889. (6) Plaintiff's cause of action is a "personal tort," and having grown out of a violation of her personal rights in her separate property. R. S. 1909, secs. 8309, 8304; Tyler v. Tyler, 78 Mo.App. 243; Woodward v. Woodward, 148 Mo. 241. (7) "The maxim of law, that wherever there is a right there is a remedy, is a mere truism; for, as Lord Holt said, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal." Cooley on Torts, p. 19.

John A. Coss and Frost & Frost for respondents.

(1) The law enabling the wife to sue and be sued as a femme sole does not authorize her to successfully maintain an action for damages for personal injuries against her husband. 21 Cyc. Law & Proc., pp. 1517-1518; 15 Am. & Eng. Ency. Law, p. 857; Smith v. Gorman, 41 Me. 408; Small v. Small, 129 Pa. 372; Peters v. Peters, 108 Iowa 540, 75 Am. St. 273; Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Brandfield v. Brandfield, 117 Mich. 80, 72 Am. St. 550; Abbe v. Abbe, 48 N.Y.S. 25; Strom v. Strom, 98 Mich. 427, 116 Am. St. 387; Thompson v. Thompson, 218 U.S. 611; Frankel v. Frankel, 173 Mass. 214, 73 Am. St. 266; Webb's Pollock on Torts, p. 65; Cooley on Torts, p. 267; Main v. Main, 46 Ill.App. 106. (2) The court was right in sustaining the demurrer of defendants, Fulton and McConkey. (a) When torts are intentional, and independent of each other, though their combined influence may result in an injury, there is no joint liability. The pleader must therefore plead and prove conspiracy. Barton v. Barton, 119 Mo.App. 531; Nichols v. Nichols, 147 Mo. 389; Love v. Love, 98 Mo.App. 570. (b) These defendants being jointly charged with the husband, D. B. Rogers, with a commission of a personal tort upon the wife, and the husband not being liable therefor, there was a misjoinder of parties apparent upon the face of the petition. And when there is a misjoinder of parties apparent upon the face of the petition, it must be taken advantage of by demurrer. Fulwiler v. Gas L. & P. Co., 216 Mo. 591; McCauley v. Brady, 123 Mo.App. 558; Love v. Love, 98 Mo.App. 570. (c) This being a suit for an intentional tort there could be no joint liability without conspiracy, and these defendants are improperly charged with entering into a conspiracy with the husband of the plaintiff, who is not liable, and hence the petition is not only faulty for improper joinder of parties, but it for that reason fails to state a cause of action against these defendants. Libby v. Berry, 74 Me. 286, 43 Am. St. 589.

OPINION

WALKER, J.

This is an action for damages for false imprisonment in causing plaintiff to be committed to, and for several months confined in, an insane asylum. At the time of the commission of the alleged tort, and when this suit was brought, the plaintiff was the wife of the defendant David B. Rogers. Defendants demurred to the petition. The demurrer of the defendant David B. Rogers was based on the ground that plaintiff's petition disclosed that she was the wife of said defendant at the time of the commission by him of the tort alleged and hence stated no cause of action.

The separate demurrers of the other defendants alleged a misjoinder of parties defendant, and that the defendant David B. Rogers being the husband of plaintiff, the petition stated no cause of action against him or any other defendant charged to have been co-operating with him.

The demurrers, upon a hearing, were sustained, and plaintiff declining to plead further, but electing to stand upon her petition, judgment was rendered for defendants, from which plaintiff appeals.

I. This case requires an answer to this question: Can a wife maintain a civil action against her husband for a personal tort committed by him against her during coverture?

Plaintiff's contention is that she can, under the following statutes, found in Revised Statutes 1909:

"Sec. 1735. A married woman may, in her own name, with or without joining her husband as a party, sue and be sued in any of the courts of this State having jurisdiction, with the same force and effect as if she was a femme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried."

"Sec. 8304. A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party: Provided, a married woman may invoke all exemption and homestead laws now in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property."

At the common law neither the husband nor the wife could sue each other, nor could she sue or be sued as a femme sole. These rules are necessary consequences of the doctrine of the identity of husband and wife. [21 Cyc. 1517.]

In many of the States the statutes have so modified this doctrine that a married woman may now sue and be sued as a femme sole, especially in regard to her statutory separate property. The right of independent action on the part of a married woman having its origin in each jurisdiction in a statute, reference thereto becomes necessary under the law where the remedy is sought, to determine the extent of the right conferred. [Ruhe v. Buck, 124 Mo. 178, 25 L. R. A. 178, 27 S.W. 412; Johnson v. Huber, 134 Ill. 511, 25 N.E. 790.]

Governed by the rule that the extent of the right conferred must be determined by the law where the remedy is sought, an analysis of the Missouri statutes above quoted becomes of prime importance.

Section 1735, supra, is intended, as its terms expressly declare, to give a married woman the same right to sue and be sued as if she were a femme sole. This section first appears in its present form as section 3468, Revised Statutes 1879. It is an amendment to a statute which required a married woman, except in certain actions therein specified, to be joined with her husband. Appearing as the section uniformly does, in the general civil code, it may be regarded more as a statute of procedure than otherwise in so far as the purpose of the Legislature may be determined from the arrangement or setting of the act, which we admit, except in its initial enactment, is not always a safe guide to the interpretation of a statute; but, whether construed as a substantive declaration of rights or as a rule of procedure, being of purely statutory origin and in derogation of the common law, it cannot be held to grant any greater power than its terms express, viz., that a married woman may, without joining her husband, maintain any action she could have maintained if unmarried, or that she may, independent of her husband, bring any action which, under a state of facts authorizing her to sue, he could have brought.

Section 8304, supra, first enacted as section 6864, Revised Statutes 1889, in addition to conferring the same powers upon a married woman theretofore possessed by her under section 1735, supra, definitely declares the purposes for, and the extent to which, she shall be deemed a femme sole, and also provides that she may, equally with her husband, where he has not exercised the right, invoke the protection of the homestead and exemption laws.

These sections do not attempt to confer greater rights of action upon a married woman than are possessed by her husband, and it has been expressly held in another jurisdiction, under a statute similar in its material features to...