Whitney Hardware Co. v. McMahan

• Decision Date: 25 May 1921
• Docket Number: (No. 2987.)
• Citation: 231 S.W. 694
• Parties: WHITNEY HARDWARE CO. v. McMAHAN et al.
• Court: Texas Supreme Court

231 S.W. 694

WHITNEY HARDWARE CO. v. McMAHAN et al.

(No. 2987.)

Supreme Court of Texas.

May 25, 1921.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by the Whitney Hardware Company against E. K. McMahan and others in the district court, which was appealed to the Court of Civil Appeals, which has certified the question whether the complaint states good cause of action against Mrs. Effie McMahan, a married woman. 231 S. W. 1117. Answered that plaintiff's petition was not subject to general demurrer.

J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellant.

R. M. Vaughan, of Hillsboro, and Fred V. Lowrey, of Dallas, for appellees.

GREENWOOD, J.

The Whitney Hardware Company, appellant, sued Mrs. Effie McMahan, her husband, E. K. McMahan, and her brother-in-law, Waul McMahan, appellees, to recover damages in the sum of $2,500.

The petition alleged that appellant was a corporation engaged in business as a retail merchant, owning a stock of hardware in a brick building belonging to appellee Mrs. Effie McMahan as her separate property and rented by her to appellant; that the building got out of repair to such an extent as to be untenantable; that thereupon Mrs. McMahan, acting individually and by agent, on or about August 1, 1915, contracted with appellant to put the building in a good tenantable state; that instead of properly repairing the building in compliance with her contract, the appellees, each acting as an individual and as agent for the others, duly authorized, negligently removed, without the knowledge of appellant, a part of the roof of the building and failed to restore same until after a heavy rain; and that as the proximate result of the removal of the roof and of the failure to restore it, appellant's stock was damaged in the sum for which a recovery was sought.

The Court of Civil Appeals certifies to us the question: Does plaintiff's petition state a good cause of action against Mrs. Effie McMahan, a married woman, or was it subject to a general demurrer?

Under the averment that Mrs. McMahan in person carelessly removed and failed to restore a part of the roof of the building, proximately causing damage from rain to appellant's stock of hardware, she would be liable for a tort, independent of her capacity to contract for repairs, and independent of her liability for an act or omission of agents. For a tortious wrong a married woman must respond in damages, though the wrong be committed in an attempt to perform a contract, whether binding or not on the married woman. 26 R. C. L. 758; Stock v. Boston, 149 Mass. 414, 21 N. E. 871, 14 Am. St. Rep. 430.

Our statutes dealing with the rights of husband and wife have been uniformly construed as leaving the wife, as well as the husband, liable for the torts of the wife. McQueen v. Fulgham, 27 Tex. 464; Crawford v. Doggett, 82 Tex. 140, 17 S. W. 929, 27 Am. St. Rep. 859.

At common law the wife had no capacity to enter into a contract. The statutes creating and safeguarding her separate estate gave her no general power to contract. Kavanaugh v. Brown, 1 Tex. 484. The act of March 13, 1848 (Acts 2d Leg. c. 79) empowered her to contract debts for necessaries furnished herself and children and for expenses to benefit her separate property. Prior to 1913 there was no other statutory grant of power to the wife to bind herself personally by contract. The act of 1913 (Laws 1913, c. 32 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 4621, 4622, 4624]) eliminated the express grant of capacity to incur obligations for expenses for the benefit of her separate property. The act contained words which seem to have continued the wife's statutory obligation for necessaries furnished herself and children.

The history of the 1913 act repels the conclusion that it authorized the wife to contract as if free from disability, except when expressly forbidden. Both houses passed the act when it did confer such authority. Because of the Governor's objections to the policy of giving the wife so wide a contractual capacity, the bill was recalled from his office; and the manifest purpose of the radical change in the terms of the act was to diminish the power to contract which the wife would have had under the bill on its prior passage. Red River National Bank v. Ferguson, 109 Tex. 293, 206 S. W. 923.

As enacted, instead of conferring on the wife the capacity to make all contracts not specially inhibited, the act enlarged her rights and powers; first, by giving to her "the sole management, control, and disposition of her separate property, both real and personal," subject to provisos as to the incumbrance, conveyance, or transfer of certain...