Taylor v. Pullen

• Decision Date: 28 November 1899
• Citation: 53 S.W. 1086,152 Mo. 434
• Parties: TAYLOR v. PULLEN et ux.
• Court: Missouri Supreme Court

53 S.W. 1086

152 Mo. 434

TAYLOR v. PULLEN et ux.

Supreme Court of Missouri, Division No. 2.

November 28, 1899.

HUSBAND'S LIABILITY FOR TORTS OF WIFE — INFANTS — PROOF OF APPOINTMENT OF NEXT FRIEND — SLANDER — EVIDENCE — FINANCIAL CONDITION OF DEFENDANT — APPEAL AND ERROR — OBJECTION TO EVIDENCE.

1. A husband is liable for his wife's slanders and torts committed out of his presence during coverture, regardless of Rev. St. 1889, §§ 6864, 6868-6870, making married women femes sole respecting their property, as section 6870 releases the common-law liability of the husband for the wife's antenuptial torts only.

2. Under Rev. St. 1889, § 2113, forbidding the reversal of a case because a party under 21 years of age appears by attorney only if the verdict or judgment is for him, a judgment in favor of one under 18 years of age will not be set aside because of failure to prove that the party named in the suit as next friend was duly appointed as such.

3. In an action for slander, evidence of the financial condition of the defendant is competent.

4. A mere objection to evidence, without stating the grounds, will not be reviewed.

5. Error in giving instructions will not be reviewed where no objection is made, or exceptions saved, at the time the instructions are given.

Appeal from circuit court, Holt county; C. A. Anthony, Judge.

Action by Amanda C. Taylor against Gilbert Pullen and wife. There was judgment for plaintiff, and defendants appeal. Affirmed.

John Kennish, Samuel O'Fallon, and T. C. Dungan, for appellants. L. R. Knowles and H. S. Kelley, for respondent.

GANTT, P. J.

An action for slander was commenced in the circuit court of Holt county by the plaintiff against defendants, who are husband and wife, for certain alleged slanders by the female defendant, and resulted in a judgment for $801 for plaintiff. An appeal was duly prosecuted to the Kansas City court of appeals. That court transferred the cause to this court because one of the judges of that court deemed the opinion of the court in conflict with the opinion of this court in Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907. The appellants have presented a very meager abstract of the evidence, reciting only that "plaintiff introduced evidence tending to prove the allegations of the use of the slanderous words of her petition on all the different counts, and defendants offered evidence tending to prove the allegations of their answer, and to contradict plaintiff's witnesses, and also evidence to impeach the general reputation for truth of plaintiff's witness Samira Kelly and Amanda Taylor, the plaintiff." Various errors are assigned, and will be considered.

1. The important question raised in the record, and the one on which the cause was certified by the Kansas City court of appeals, is whether or not a husband is liable for slanders uttered by his wife during coverture, without the presence, knowledge, or consent of the husband, since the adoption of sections 6864, 6868, 6869, Rev. St. Mo. 1889. In Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907, this court stated the common-law rule to be that a husband is liable for the torts of his wife where the tortious act is done by the wife alone, and when she is sued for such tort the husband must be joined in the action. Such unquestionably is the common law, and so it is held to be by the court of appeals in this case; but it is argued that, our modern legislation having removed the reason for the common law, the law itself ceases. We are relieved from much labor by the decision in Nichols v. Nichols, 147 Mo., loc. cit. 407, 48 S. W. 953. In that case it is pointed out that section 6870 must be read in conjunction with the sections above enumerated, and, when so read, demonstrates that the legislature only 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 his liability for her torts committed during coverture just as they existed at the common law. It has not been the policy in this state for the courts to move in advance of a clearly expressed purpose to remove the common-law disabilities, rights, and liabilities of married women, or to change marital relations. On the contrary, great conservatism has marked the course of judicial decisions in this regard. It is true that, when the reason upon which a rule of law is founded is clearly defined, and that reason is then removed, the rule itself disappears. Broom, Leg. Max. (5th Ed.) 133, marg. p. 118. While it is true that one of the supposed reasons for the rule which required a husband to be joined...