Vigilant Ins. Co. v. Bennett

• Decision Date: 14 September 1955
• Docket Number: No. 4395,4395
• Citation: 89 S.E.2d 69,197 Va. 216
• Court: Virginia Supreme Court
• Parties: VIGILANT INSURANCE COMPANY, A CORPORATION v. SARAH LELAND BENNETT. Record

Page 69

89 S.E.2d 69

197 Va. 216

VIGILANT INSURANCE COMPANY, A CORPORATION v. SARAH LELAND BENNETT.

Record No. 4395.

Supreme Court of Appeals of Virginia

September 14, 1955.

Louis B. Fine and Jerrold G. Weinberg, for the plaintiff in error.

Preston P. Taylor, for the defendant in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

An automobile owned by Herbert B. Bennett, and insured by Vigilant Insurance Company against damage from fire was burned by Sarah Leland Bennett, the insured's wife.

The company paid the sum of $902 to Bennett for destruction of his car, and as subrogee under the insurance policy, instituted action in tort against insured's wife for the sum paid.

It was conceded that the company was subrogated to the rights, if any, that Bennett had against his wife, but upon her motion to dismiss, the court concluded that as she was insured's wife, this action could not be maintained. From a final order putting that decision into effect, the company appealed.

The only question to be decided is: Can a husband sue his wife in tort for her damage or destruction, during coverture, of his personal property?

At common law neither spouse could sue the other. This incapacity was basically due to the fictional legal unity and oneness brought about by their marriage. 41 C.J.S., Husband and Wife, §§ 393 and 396, pp. 867, 877; 27 Am. Jur., Husband and Wife, § 584, p. 183, et seq.; 1 Chitty's Blackstone, ch. 15, p. 343; Alexander v. Alexander, 85 Va. 353, 366, 7 S.E. 335.

The insurance company, however, contends that by §§ 55-35, 55-36, and 55-37, Code of 1950, ¹ the common law fictional unity and resultant disability have been removed, and under those sections, the right now exists in either spouse to maintain an action in tort against the other for wrongful damage or destruction of his or her property.

This contention requires that the reasons underlying the disability of spouses to sue each other at common law be kept in mind and the history and development of these Code sections traced before we attempt to apply them to the simple facts of this case. In doing this, the disabling effect that the unity of husband and wife had upon her personal and property rights at common law, with its resulting effect upon his rights and liabilities with relation to her, must be briefly stated and appraised.

At common law a wife could not bring a tort action against her husband because by the marriage (a) her identity was merged with her husband's, (b) she was rendered non sui juris, and (c) damages for a tortious wrong committed against her constituted a chose in action which the husband was entitled to reduce to possession during coverture. Norfolk & Western R. Co. v. Prindle, 82 Va. 122, 128; Burks' Separate Estates, ch. 1, pp. 6, 7.

The husband could not sue his wife for a tort because by the marriage (a) her identity was merged with his, (b) she was rendered non sui juris, and (c) he was liable for her torts. 41 C.J.S., Husband and Wife, § 219, p. 711. If he sued her, he would also sue himself.

Upon marriage the husband acquired full ownership of all the wife's tangible personal property, the right to reduce her choses in action to possession during coverture, and the right to the rents, issues and profits from her real estate, as well as her earnings. Owning and being entitled to her property and resources during coverture, it was only just that he be required to respond to her tort creditors.

Sections 55-35 and 55-36 are parts of what was originally called the Married Woman's Act, Acts 1876-77, ch. 329, p. 333, as amended by Acts 1877, ch. 265, p. 247. These acts and similar acts passed in other states were designed to enlarge the personal rights of married women and secure to them separate legal estates over which they were granted greater dominion and control than they had formerly enjoyed.

Upon codification of the general laws in 1887, the Married Woman's Act was revised and amended, and married women were further emancipated and their property rights broadened. The act appears in the Code of 1887 as chapter 103. By § 2284 of that chapter, in designating what constituted the separate estate of a married woman, after enumerating certain properties, it was expressly provided that her 'separate estate shall include rights in action, damages for a wrong, and compensation for property taken for public use * * *. ' But this declaration that 'rights in action, damages for a wrong, and compensation for property taken * * *' should be included in her separate estate was qualified and the inferences that might be drawn therefrom limited by the further statement that 'Nothing however in this or any other section of this chapter shall be construed as giving to a married woman a right to damages or a right of action therefor against her husband for any injury to her person or reputation committed by him before their marriage or during the coverture. ' (Emphasis added.) This provision forbade the wife from suing her husband for a purely personal tort and negatived the inference that might have arisen that she could do so.

By § 2288, Code of 1887, it was provided that as to all matters connected with, relating to or affecting the wife's trade, business or separate estate, she could sue and be sued 'as if she were unmarried.'

In Norfolk & Western R. Co. v. Dougherty (1895), 92 Va. 372, 374, 23 S.E. 777, where a married woman sought to recover for personal injuries and property damage, when discussing and determining her rights under chapter 103, Code of 1887, and especially in construing § 2288, Judge Harrison said:

'Under chapter 103 of the Code, all the disabilities imposed upon a married woman by the common law, so far as they affect the separate estate created by that chapter, have been removed, and she stands before the world, as to that separate estate, absolutely free to assert all rights touching it, and to invoke all remedies relating to the same, as though she had never married. These privileges she now enjoys like all other single individuals, restrained alone by the same laws the determine the rights of man, and when she exercises her privilege, and invokes the law's aid in asserting her rights, she must conform to the same rules of pleading and practice by which man is governed when he sues.

'Section 2288 of the Code clearly provides that, as to matters connected with, relating to, or affecting the separate estate of a married woman, she may sue and be sued in the same manner, and there shall be the same remedies in respect thereof, for and against her and her said estate, as if she were unmarried.'

Section 2290, Code of 1887, relieved the husband of all liability, contractual or tortious, incurred by his wife prior to their marriage and from all liability connected with or relating to her trade, business or separate estate that occurred during coverture. Yet he was not relieved of liability for her post nuptial torts which were committed other than in connection with her trade, business or separate estate.

He was still jointly liable with her for such a tort, and if committed against him, any suit by him for the tort would necessarily have to be brought against himself as well as against his wife. Burks' Separate Estates, ch. 4, p. 83. For an analytical discussion of the Married Woman's Act as it appeared in the Code of 1887, see an article by William Minor Lile, later dean of the University of Virginia Law School, in 4 Virginia Law Register (1898) 413.

With the statutory rights and liabilities of spouses toward each other for tortious wrongs in this unsatisfactory and anomolous condition, the Legislature in 1900 materially changed and recast chapter 103, Code of 1887. Acts 1899-1900, ch. 1139, p. 1240. In this re-enactment it removed every vestige of the husband's liability as such for his wife's torts and rendered her solely liable for all of her tortious acts. That was accomplished by the following unequivocal declaration:

'3. A husband shall not be responsible for any contract, liability, or tort of his wife, whether the contract or liability was incurred or the tort was committed before or after the marriage. ' Now § 55-37, Code of 1950.

This recast of chapter 103 abolished separate estates as such and further enlarged married women's rights by giving them full ownership of and absolute dominion over their property. Having given a married woman full ownership of and control over her property, § 2284 which declared what made up her separate estate, in which were included rights of action and damages for a wrong, was no longer needed, and that section was repealed.

In repealing § 2284, Code of 1887, the provision 'Nothing, however, in this or any other section of this chapter shall be construed as giving to a married woman a right to damages or a right of action therefor against her husband for any injury to her person or reputation * * *,' was omitted from the new act.

The omission of that last clause did not, however, indicate that a wife should thereafter be allowed to maintain an action for a personal tort against her husband. For upon repeal of the provision which had included 'rights in action' and 'damages for a wrong' in a wife's separate estate, the need of the latter express provision declaring that she was not given 'a right to damages or a right of action' against her husband for a personal tort (which was meant to rebut the inference that she could sue him for such a tort that might have arisen from the preceding language) was no longer needed.

In Keister's Adm'r v. Keister's Ex'ors, 123 Va. 157, 174, 96 S.E. 315, in commenting upon the omission of the provision forbidding a wife to maintain an action against her husband for a purely personal tort, it is said:

'Secondly, section 2284 of the Code of 1887 expressly conferred substantive rights upon married women and when it expressly stated that the separate estate of a married woman '* * *...