Scotvold v. Scotvold

• Decision Date: 26 May 1941
• Docket Number: 8416.
• Citation: 298 N.W. 266,68 S.D. 53
• Parties: SCOTVOLD v. SCOTVOLD.
• Court: South Dakota Supreme Court

298 N.W. 266

68 S.D. 53

SCOTVOLD v. SCOTVOLD.

No. 8416.

Supreme Court of South Dakota.

May 26, 1941

Rehearing Denied July 30, 1941.

Appeal from Circuit Court, Lincoln County; L. L. Fleeger, Judge.

Action by Carrie G. Scotvold against E. L. Scotvold, for injuries sustained when plaintiff was riding in an automobile driven by defendant. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with directions.

Bailey, Voorhees, Woods & Bottum and M. T. Woods, all of Sioux Falls, for appellant.

Henry C. Mundt, of Sioux Falls, and Harold M. Eastvold, of Canton for respondent.

SMITH Judge.

A husband appeals from a judgment rendered against him in favor of his wife for damages for personal injuries found to have been caused by his negligence in driving an automobile in which she was a passenger.

We deal with two questions presented by the assignments.

First Is a civil action maintainable in this jurisdiction between husband and wife for damages for personal tort committed by one against the other? Decision of this question turns upon a determination as to whether the common law rule governing such suits has been abrogated in this state.

Concededly, such an action would not lie at common law. In the leading case of Phillips v. Barnet, 1 Q.B.D. 436, wherein a woman sought recovery from her former husband for assault and battery committed during coverture, Mr. Justice Blackburn said, " I was at first inclined to think, having regard to the old procedure and the form of pleas in abatement, that the reason why a wife could not sue her husband was a difficulty as to parties; but I think that when one looks at the matter more closely, the objection to the action is not merely with regard to the parties, but a requirement of the law founded upon the principle that husband and wife are one person."

Professor William F. McCurdy (Cf. Torts Between Persons in Domestic Relations, 43 Harvard Law Review, 1030) suggests that the orthodox expression " merger of legal identity of the spouses" is at most a useful phrase to sum up a result, and explains very little. After reviewing the incidents of coverture at common law, including the rights accruing to the husband in the property of the wife, his right to reduce her choses of action to his possession, his liability for her torts, and her incapacity to make contracts for herself, to convey her property, and to sue and be sued in her own name without joining her husband, he advances the following explanation of the common law rule:

" A combination of all these incidents made it impossible at common law for one spouse ever to be civilly liable to the other for an act which would be a tort if the relation did not exist. Where the act occurred before marriage, a cause of action arose. If the man was the tortfeasor, the woman's right would be a chose in action, which upon marriage the man would have the right to reduce to possession. This union in one person of the right-duty relation discharges the duty as a matter of substance, and there is besides the procedural difficulty that the husband would be both plaintiff and defendant. If the woman was the tortfeasor, the man's right would be a chose in action against the woman, whose duty upon marriage would devolve upon the husband as a derivative duty, which would be discharged by union of the right and duty in the same person; and there is the same procedural difficulty. Where the act occurs during coverture, the matter is complicated by other factors. In the case of an act affecting property, because of the rights which a husband acquires by marriage in the property of his wife there is only one case where it could be contended that an act by him could be a tort as a matter of substance: waste upon the wife's realty. Where the wife is the actor dealing with the husband's property, these considerations of property right are not applicable, but doubtless in many cases there would exist, because of the relation of the parties, an express or implied consent of the husband which would prevent the conduct from being wrongful. In some cases, however, the conduct of the wife may be against the will of the husband, or may amount to such an assumption of dominion as to destroy any implication of consent. Nevertheless, the right and the duty to make compensation, if any can be said to exist, would be united eo instante in the same person, and no cause of action could arise; and even if it could be said to arise, there would be the procedural difficulty of the husband's being both plaintiff and defendant. The same reasoning would apply to acts which injure the person, whether done by husband to wife or by wife to husband, and, in addition, if the husband is the actor, his right to services and earnings and his duty to support would prevent an injury from causing the wife pecuniary loss."

The first legislative changes in these incidents of coverture came in 1866. In January of that year the Territorial Legislature adopted the Civil Code. It provided that (with certain limited exceptions) neither husband nor wife has any interest in the property of the other (§ 78); that either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried (§ 79); that a husband and wife may hold real or personal property together, jointly or in common (§ 82); that neither husband nor wife, as such, is answerable for the acts of the other (§ 83); and that a conveyance by a married woman has the same effect as if she were unmarried (§ 522). These provisions continue in our law as a part of SDC 14.02.

Then by Chapter 98 of the Session Laws of 1887, it was provided: " That from and after the passage of this act, woman shall retain the same legal existence and legal personality after marriage as before marriage and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injury sustained to her reputation, person, property, character or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone; * * *."

The foregoing provision was codified as § 2600, C.L. 1887, and was thereafter revised and appeared as § 105, Rev.Civil Code of 1903, in words as follows: " The wife shall have and retain after marriage all the civil and property rights of a single woman. She may buy and sell, receive and convey or otherwise dispose of any real or personal property belonging to her or in which she may have an interest, without joining the name of her husband except as otherwise provided in case of the homestead and for any injury to her reputation, person or property, she may sue in her own name without joining her husband as party plaintiff and in like manner actions founded upon her separate contracts or torts or relating to her individual property may be brought against her without joining the husband as party defendant. * * *"

This section now appears as SDC 14.0207 and is the particular statute upon which the wife predicates her right to maintain this action.

This legislation must be interpreted in the light of certain fixed principles. While the common law is in force in this jurisdiction except where changed by statute or by other expression of the sovereign will, SDC 65.0103, the rule of strict construction of statutes in derogation of common law does not obtain in this state. Our function is to effectuate the legislative purpose through liberal construction. SDC 65.0202.

Before we analyze the precise contention of the husband, we pause to state certain more or less obvious conclusions which arise from reading this group of statutes. Obviously this legislation deals with more than the mere right of the wife to sue and be sued in her own name. It makes sweeping changes in her substantive rights. By these changes she emerges as a legal personality with the civil rights of the ordinary person. Among those civil rights with which she is clothed by these statutes is the right to protection from bodily harm. SDC 47.0301. That a wrongful invasion of any of these civil rights gives rise to a cause of action in the wife, is the basis of the holding of this court in Moberg v. Scott, 38 S.D. 422, 161 N.W. 998, L.R.A.1917D, 732.

However the husband, in substance, says that granting all of the foregoing conclusions, SDC 14.0207 supra does not reveal a legislative intent to grant remedies between husband and wife. It was enacted, says the husband, to place the wife on a plane of equality with the husband in relation to third persons. It is this contention we now consider.

When these statutes are examined to determine the rights and capacities of a married woman, the conclusion is impelled that their cumulative effect is to declare her a legal individual with the right to own and control her own property, including property held with the husband as in common or as joint tenants, and to enter into contracts with others, including her husband. It seems improbable that the Legislature which created such separate civil and property rights, and made possible such transactions between husband and wife, could have intended that one should be without remedy if the other wrongfully invaded those individual property rights or refused to abide by the terms of their mutual engagements. To sustain the husband's contention would require us to hold a wife without remedy at law if the husband breached his contract or so invaded her property rights. We are unable to discern a basis for a holding that the wife has a remedy against her husband for breach of contract or for invasion of property rights but...