Me v. James Me. & Sons Co.

• Decision Date: 11 December 1924
• Docket Number: No. 36225.,36225.
• Citation: 198 Iowa 1278,201 N.W. 20
• Court: Iowa Supreme Court
• Parties: MAINE v. JAMES MAINE & SONS CO.

198 Iowa 1278

201 N.W. 20

MAINE

v.JAMES MAINE & SONS CO.

No. 36225.

Supreme Court of Iowa.

Dec. 11, 1924.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

The plaintiff, a married woman, sued to recover from the defendant, the employer of her husband, for a personal injury caused by the negligence of the husband acting within the scope of his employment. From a judgment for the plaintiff, defendant appeals. Reversed.Chandler Woodbridge, of Des Moines, for appellant.

Walter L. Stewart, George F. Malcolm, and N. L. Friedman, all of Des Moines, for appellee.

VERMILION, J.

The appellant, James Maine & Sons Company, is a corporation engaged in construction work. Kenneth Maine, at the time of the occurrence here involved, was in the employ of the appellant as secretary and general manager. The appellee was the wife of Kenneth Maine. The action is to recover damages occasioned by personal injuries received by appellee while riding in an automobile belonging to the appellant company, and driven by Kenneth Maine, her husband. It may be noted, further, that the stock of the appellant corporation is all owned by the father and brother of Kenneth Maine. The occasion for a controversy of this character, between parties so related and associated, may be found in the fact, shown in evidence, that the appellant company carried a policy protecting it against liability for damages caused by the automobile in question.

While so much is not conceded by appellant, we may assume, for the purpose of the case, that the evidence showed that at the time of the accident Kenneth Maine was engaged in the business of appellant, and was acting within the scope of his employment; that the corporation, through its officers, had consented to appellee's accompanying her husband in the company's car; that the accident and injury to appellee were proximately caused by the negligence of Kenneth Maine in the respects alleged in the petition; and that appellee was not guilty of contributory negligence. That proof of such facts would ordinarily warrant a recovery against the employer is, of course, plain. The fundamental question in the case is whether the fact that the employé, for whose negligence the employer would be liable, is the husband of the person injured, will defeat her recovery.

It is, as of course it must be, conceded that a wife could not recover at common law against her husband for a tort committed by him against her person. 30 Corpus Juris, 714. It is also settled doctrine in this state that our statutes enlarging the rights of married women, at least as they existed prior to the enactment by the Thirty-Sixth General Assembly of section 3477a, Supplemental Supplement 1915 (sections 10462 and 10463, Code of 1924), did not give the wife a right of action for such an injury. Peters v. Peters, 42 Iowa, 182;Heacock v. Heacock, 108 Iowa, 540, 79 N. W. 353, 75 Am. St. Rep. 273.

No claim is made in this case of a right to recover, based upon section 3477a, and we have no occasion to consider that statute. In this connection, however, the discussion in the Heacock Case, supra, is illuminative. See, also, Thompson v. Thompson, 218 U. S. 611, 31 S. Ct. 111, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921.

The common-law freedom of the husband from liability to the wife for a tortious or negligent injury to her person does not rest merely upon a lack of remedy, the inability of the one to sue the other. It arises out of the very relationship itself, and the incapacity to sue is but an incident to it. In Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27, it was said, of an action by a divorced wife against her husband and others for an assault committed during coverture:

“There is, not only no civil remedy, but there is no civil right, during coverture, to be redressed at any time.”

Phillips v. Barnett, 1 Q. B. D. 436, is there cited, and the following quoted from the opinions:

“I now think it clear that the real substantial ground why the wife cannot sue her husband is, not merely a difficulty in the procedure, but the general principle of the common law that a husband and wife are one person.”

It was said, further, that the objection was “not the technical one of parties, but, because being one person, one cannot sue the other.” But, if her inability to recover be predicated on her want of a right to sue her husband, as it is in some of the cases, it does not change the situation. In Heacock v. Heacock, supra, it was said: “If she has no right to sue--no remedy--she has no right.”

[1] The liability of the employer for the negligent acts of his servant is based upon the familiar doctrine of respondeat superior. Unless the servant is liable, there can be no liability on the part of the master. This has been repeatedly held in cases where both were sued, and the verdict was against the employer only. White v. Text-book Co., 150 Iowa, 27, 129 N W. 338;Dunshee v. Standard Oil Co., 165 Iowa, 627, 146 N. W. 830:Hobbs v. Railroad Co., 171 Iowa, 624, 152 N. W. 40, L. R. A. 1917E, 1023;Arnett v. Railroad Co., 188 Iowa, 540, 176 N. W. 322. Where the only negligence alleged against the employer is that of the servant or employé, the former is not liable as a joint wrongdoer, as he did nothing, save through the employé, but his liability arises because of his responsibility for the act of his servant. As said in Hobbs v. Railroad Co., supra:

“Where the real actor (who is none the less liable personally because acting for another) is not guilty, it necessarily follows that the party for whom he acted cannot be.”

Moreover, where the employer is held liable for the negligent act of his servant, he can recover over against the servant. Hobbs v. Railroad Co.,...