Romero v. Romero
Decision Date | 21 April 1954 |
Docket Number | No. 5739,5739 |
Citation | 58 N.M. 201,269 P.2d 748,1954 NMSC 38 |
Parties | ROMERO v. ROMERO. |
Court | New Mexico Supreme Court |
Tibo J. Chavez, Denis Cowper, Belen, Robert Emmet Clark, Albuquerque, for appellant.
Rodey, Dickason, Sloan, Mims & Akin, Albuquerque, for appellee.
This was an action for damages for personal injuries suffered by plaintiff in an automobile accident. In her complaint she alleged that on a date stated that defendant negligently left the motor of his automobile running while their two and one half year old daughter sat in the front seat; that during his absence the child pulled the gear lever causing the car to be set in motion thereby striking and inflicting upon her serious injuries. The defendant moved the court to dismiss her complaint because it could not be maintained on account of their legal status. The court sustained the motion and entered an order dismissing the complaint on the ground that 'an action for negligence between husband and wife will not lie', from which plaintiff appeals.
The sole question is? Can a wife in this state maintain an action against her husband for a personal tort committed by him against her during coverture. Plaintiff contends that she can, under the following statute, 1941 Compilation, Section 19-606:
He also cites Section 19-607, which provides
At common law it was well settled that one spouse could not sue the other in tort for personal injuries. 41 C.J.S., Husband and Wife, Sec. 396, pp. 877 to 885; 27 Am.Jur. pages 191 to 198. The common law has by statute been adopted by the State of New Mexico. Section 19-303. provides:
Thus, the common law rule that a wife does not have a cause of action against her husband for tort was in force in New Mexico in 1897 when Section 19-606, supra, was enacted.
In the states of Kansas and Montana, which have statutes similar to ours, it was held that a wife could not maintain an action against her husband for a personal tort committed against her.
In Sink v. Sink, 172 Kan. 217, 239 P.2d 933, 934, a wife sued her husband for injuries sustained by her while riding with him in his automobile.
Section 60-404 General Statutes of Kansas, 1949 Annotation. 'A married woman may sue and be sued in the same manner as if she were unmarried.' The court said:
In Conley v. Conley, 92 Mont. 425, 15 P.2d 922, 925, the wife sued her husband for personal injuries received by her, caused by the negligence of her husband's chauffeur, while she was riding, at his invitation, as a passenger in his car. The Montana statute reads:
Section 36-128, 1947 Rev.Code, Annotated. 'A married woman may sue and be sued in the same manner as if she were sole.'
The court refused recovery, stating:
* * *' * * *
And in Austin v. Austin, 136 Miss. 61, 100 So. 591, 592, 33 A.L.R. 1388, the wife sued her husband for personal injuries sustained by her in an automobile accident which was driven by her husband. Their statute reads:
Section 452, Mississippi Code, 1942, Annotated. 'Husband and wife may sue each other.'
The court in denying recovery, said:
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