Schuler v. Henry

Decision Date03 February 1908
Citation42 Colo. 367,94 P. 360
PartiesSCHULER et al. v. HENRY.
CourtColorado Supreme Court

Rehearing Denied March 2, 1908.

Appeal from San Miguel County Court; J. M. Wardlaw, Judge.

Action by L. Henry against L. Schuler and others. From a judgment for plaintiff, defendants appeal. Reversed as to certain of the defendants, and affirmed as to others.

Gabbert and Maxwell, JJ., dissenting.

L. C Kinikin, for appellants.

H. M Hogg and C. L. Watson, for appellee.

STEELE, C.J.

The record presented requires us to determine this question: Is a husband liable for the tort of his wife, committed during coverture, and without his presence, and in which he in no manner participated? The rule of the common law which makes the husband liable for the torts of his wife has not been expressly repealed, and unless it has been repealed by implication the question must be answered in the affirmative. In determining whether the rule of the common law has been abrogated by the enactments concerning married women or is still in force, it will be necessary to briefly consider the status of a married woman at common law and her status under the statutes of this state. At common law the husband and wife were considered as one person, as having but one will between them--that seated in the husband, as the head and governor of the family. Therefore the law gives him the same right over real estate accruing to the wife during coverture as if she were seised of it before marriage. So of chattels real accruing to the wife. It also gives him an absolute power over any personal estate or interest accruing to the wife by gift, devise, or her labor. Bacon's Abridgment tit. 'Baron and Femme,' D. '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.' Id. B. The wife's identity was completely merged in that of her husband. With but few limitations he had the control of her person, her property, her children, her labor. 'The legal theory is that marriage makes the husband and wife one person, and that person is the husband, that there may be an indissoluble union of interest between the parties.' State v. Burlingham, 15 Me. 104. As compensation for depriving her of a legal existence, and depriving her of the enjoyment of her property, and of being under the dominion of her husband, the wife had the benefit of her legal nonentity, and she was presumed to have acted under the direction of her husband, and her misdemeanors and her trespasses were to be looked upon, not as arising from the promptings of her own mind or will, but as the result of the overpowering commands or coercion of him whom she had promised to obey. Marshall v. Oakes, 51 Me. 310. 'The common reason assigned for this legal disfranchisement of the wife is that there may be an indissoluble union of interest between the parties. In other words, lest the wife might be sometimes tempted to assert rights in opposition to her husband, the law humanely divests her of rights.' Walker's American Law, 246. 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.' And, as stated by Chief Justice Thatcher in Wells v. Caywood, 3 Colo. 494: 'The wife in Colorado is the wife under our statute and not the wife at common law, and by our statutes must her rights be determined; the common law affecting her rights, as we shall presently see, having been swept away.'

That many of the states still hold the husband liable jointly with the wife for torts committed by her without his presence must be conceded, and perhaps the greater number that have passed upon the question have so held; but in no one of the states so holding is the wife so completely emancipated from the dominion of her husband as in this state, and, as a rule, the courts find in their statutes some enactment showing that the Legislature intended to not repeal the common law upon the subject. Thus, in the states of Pennsylvania and Indiana the statutes provide that, where a judgment is rendered against the husband and wife for the tort of the wife, execution shall first be levied upon the separate property of the wife, if she have any. Quick v. Miller, 103 Pa. 67; Choen v. Porter, 66 Ind. 194. In California and Texas the husband and wife own community property, the husband being the head of the community, and the statutes of these states are not nearly so broad as ours. In Texas the court recognizes the justness of the Illinois decisions, and states that the Illinois statutes 'give to the wife much more extended powers in reference to her own action and services and property rights than the statutes of this state.' In California, although the court seems inclined to the doctrine that the husband should be held for some of the reasons assigned in other jurisdictions, still it assigns as a sufficient reason for holding the husband liable that the wife cannot be sued under the California statutes without her husband for a tort that does not concern her separate estate, and that she can be sued only when the action concerns her separate property or her claim to the homestead, when the action is between herself and husband, or when she is living in separation from her husband by desertion or under an agreement in writing. Zeliff v. Jennings, 61 Tex. 458; Henley v. Wilson, 137 Cal. 273, 70 P. 21, 58 L.R.A. 941, 92 Am.St.Rep. 160. In Minnesota the court finds in the statute a provision which seems to declare by negative words that the husband is liable for the torts of the wife. The court says: 'Then, as if to emphasize the matter and place the legislative intention beyond all doubt, it was provided (Gen. St. 1894, § 5536) that nothing in the act should be considered as exempting a husband from liability for torts committed by his wife. Morgan v. Kennedy, 62 Minn. 348, 64 N.W. 913, 30 L.R.A. 521, 54 Am.St.Rep. 647. In Maine, Massachusetts, North Carolina, and South Carolina the courts do not discuss the question on the lines adopted by the courts of other states, but content themselves with the bare announcement of the rule at common law. Ferguson v. Brooks, 67 Me. 251; Hill v. Duncan, 110 Mass. 238; Presnell v. Moore et ux., 120 N.C. 390, 27 S.E. 27; Henderson v. Wendler, 39 S.C. 555, 17 S.E. 851. In New York the statute provides that a married woman may sue or be sued in all matters having relation to her separate estate. Fitzgerald v. Quann, 109 N.Y. 441, 17 N.E. 354. In Missouri the court holds that the statute providing 'that the husband's property, except such as may be required from the wife, shall be exempt from all debts and liabilities contracted and incurred before marriage,' relaxed the common-law rule to the extent of limiting the husband's liability for his wife's antenuptial debts and torts to property received and acquired by him from his wife; and on the familiar principle of 'Expressio unius, exclusio alterius,' left the liability for her torts committed during coverture just as they existed at common law. Taylor v. Pullen, 152 Mo. 434, 53 S.W. 1086. In Iowa the court holds the husband liable for the torts of the wife, and states: 'But as he was liable at common law for the torts of his wife committed after marriage, and the statute exempts him from his liability for her debts only, it follows that his liability for such torts continues as at common law.' McElfresh v. Kirkendall, 36 Iowa 224.

That the husband is not liable because of his supposed neglect of duty in not controlling his wife must be apparent when we consider that the rule that makes the husband liable for the torts of the wife committed during coverture requires that a recovery must be had during coverture, and that, if the wife dies before judgment, the suit abates, and that, if they are separated by divorce, or if the husband dies, the action survives against the wife. For if the rule were...

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