Sacknoff v. Sacknoff

• Decision Date: 20 July 1932
• Court: Maine Supreme Court
• Parties: SACKNOFF v. SACKNOFF.

161 A. 669

SACKNOFF

v. SACKNOFF.

Supreme Judicial Court of Maine.

July 20, 1932.

Report from Superior Court, Cumberland County.

Action on the case for negligence by Sarah E. Sacknoff against Anna G. Sacknoff. On report.

Judgment for defendant.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Bernstein & Bernstein, of Portland, for plaintiff.

Berman & Berman, of Portland, for defendant.

STURGIS, J.

Action on the case for negligence, reported on an agreed statement of facts. By stipulation of the parties and by the certificate, Judgment as here rendered is final.

The facts stated show that on April 5, 1931, the plaintiff, while riding as a guest in the defendant's automobile, was injured through the negligence of her husband who, temporarily in the defendant's employ, was driving the car. Due care on the part of the plaintiff is conceded.

Under the common law, a husband and wife were deemed to be one person, and, while the marriage relation continued, the legal identity of the wife was suspended or merged in that of the husband. Between the spouses, no right or cause of action existed. Perkins v. Blethen, 107 Me. 443, 78 A. 574, 575, 31 L. R. A. (N. S.) 1148; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27. As to third persons, the joinder of the husband was required in all actions by or against a married woman, unless he was an alien who had always resided abroad or was regarded as civilly dead. Spiller v. Close, 110 Me. 302, 86 A. 173, Ann. Cas. 19140, 1079; Laughlin v. Eaton, 54 Me. 156; Ballard v. Russell, 33 Me. 196, 54 Am. Dec. 620. And it was held that, if the husband had no cause of action against a tort-feasor guilty of an assault upon his wife because of his own complicity, his disability as a party plaintiff barred an action for the wrong. The wife could not sue alone. Abbott v. Abbott, supra.

In chapter 112 of the Public Laws of 1876, the Legislature provided that a married woman "may prosecute and defend suits at law or in equity, either of tort or contract, in her own name, without the joinder of her husband, for the preservation and protection of her property and personal rights, or for the redress of her injuries, as if unmarried, or may do it jointly with her husband."

This statute, being in derogation of the common law, has been construed strictly. "The provision * * * authorizing a married woman to prosecute suits at law in her own name, as if unmarried, refers to those by the wife against third persons, * * * and not to those against her husband." Morrison v. Brown, 84 Me. 82, 24 A. 672; Hobbs v. Hobbs, 70 Me. 383. "It relates to eases when, by the very assumption, the husband may be a party with the wife, or. not, at her election." Hobbs v. Hobbs, 70 Me. 381. And: "It only authorizes her to maintain alone such actions as previously could be sustained when brought by the husband alone or by the husband and wife jointly. It enlarges not her right of action, but her sole right of action. It does not enable her to maintain suits which could not have been maintained before, but to bring in her own name those which before must have been brought in the husband's name, either alone or as a party plaintiff with her." Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589. This interpretation of the scope and meaning of the statute was recognized and approved in Howard v. Howard, 120 Me. 480, 115 A. 259.

The Legislature has accepted and affirmed this construction of its enactment. After the earlier cases cited, were decided, in three general revisions of the statutes, the act of 1876 was re-enacted without change. Now and subsequent to Howard v. Howard, supra, it again appears as section 5, c. 74, R. S. (1930). The language of Appleton, C. J., in Cota v. Ross, 66 Me. 161, 165, is appropriate: "After the repeated construction of a statute, its re-enactment upon the revision of the statutes is always regarded as a legislative affirmance of the statute as previously construed by the judiciary."

The law so established and reaffirmed is the rule of this case. "If the doctrine of stare decisis is ever to have force, it is when the repeated adjudications of the courts have received the legislative sanction upon a general revision of preceding statutes. If it be deemed expedient, the legislature can change the law; but it is not for the court to usurp legislative authority." Cota v. Ross, supra.

An action for the plaintiff's injury, in the case at bar, could not be maintained by her husband alone or in joinder with her. It is elementary that the same person cannot, in the same suit, sustain the twofold character of plaintiff and defendant to enforce a right or redress a wrong. The incongruity of an action by a servant against his master for damages for injuries caused solely by his own negligence is apparent. The logic of the common-law rule is that, "if there was no injury to him [the husband] there was none to her [the wife]. They were one." Abbott v. Abbott, supra. And, if there is no injury, there is, of course, no right of action. Nichols v. Valentine, 36 Me. 322, 324. Under the settled law of this jurisdiction, the plaintiff cannot maintain this suit.

It is true, as argued by counsel, that, along with the doctrine of the unity of the spouses and the resulting limitations upon the wife's right of action, this court has recognized the rule now generally accepted that the contributory negligence of the husband is not imputed to the wife riding merely as a passenger in a car under his sole control and management. Kimball v. Bauckman...