Wilson v. Barton

• Decision Date: 22 May 1926
• Citation: 283 S.W. 71
• Parties: WILSON v. BARTON.
• Court: Tennessee Supreme Court

Page 71

283 S.W. 71

WILSON v. BARTON.

Supreme Court of Tennessee.

May 22, 1926.

Appeal from Circuit Court, Cheatham County; J. C. Hobbs, Judge.

Action by John Wilson, administrator of the estate of Daisy Page Barton, deceased, against W. I. Barton. Demurrer to the declaration was sustained, and plaintiff appeals. Affirmed.

John E. Garner, of Springfield, and A. W. Stockell, Jr., and J. H. Frazier, both of Nashville, for appellant.

P. H. Duke and Pardue & Marable, all of Ashland City, for appellee.

COOK, J.

Upon the charge that the defendant unlawfully assaulted and killed his wife, Daisy Page Barton, her administrator sued to recover damages for her death, for the benefit of the next of kin. The trial judge sustained the defendant's demurrer to the declaration, holding that no right of action exists for the tort committed by one spouse against the other during coverture. The plaintiff appealed and insists that the effect of the Married Woman's Act was to change the common-law doctrine which denied the right of recovery in actions by one spouse to recover for tort committed during the marital unity.

In Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S. W. 628, L. R. A. 1916B, 881, Ann. Cas. 1917C, 901, the divorced wife sought a recovery against the husband for an unlawful assault committed during coverture, and in that case it was insisted that the Married Woman's Act of 1913 abrogated the common-law rule.

Chapter 26, Acts of 1913, and section 1, chapter 126, Acts of 1919, are identical. The added sections in the latter act are section 2, preserving tenancies by the entirety; section 3, extending the statute of limitations to married women; section 4, assuring a homestead to the wife whose husband owned no land.

In the Lillienkamp Case, after stating the common-law doctrine under which no right of action existed in behalf of either the husband or wife against the other for tort during coverture, the court construed the Act of 1913, saying:

"Examination of the cases cited to sustain the existence of the common-law rule first laid down herein will disclose a practically unanimous concurrence of judicial opinion to the effect that an abrogation of the common-law rule will only be held to have been accomplished by a statute when such purpose is clearly expressed therein.

"It has been held in this state:

"`That a statute will not be construed to alter the common law, further than the act expressly declares or than is necessarily implied from the fact that it covers that whole subject matter.' State v. Cooper, 120 Tenn. (12 Cates) 549, 113 S. W. 1048, 15 Ann. Cas. 1116.

"We must assume that the Legislature had in mind in the passage of the act the fundamental doctrine of the unity of husband and wife under the common law, and the correlative duties of husband and wife to each other, and to the well-being of the social order growing out of the marriage relation, and that, if it had been the purpose of the Legislature to alter these further than as indicated in the act, that purpose would have been clearly expressed.

"We are not warranted in ascribing to the Legislature by anything appearing in this act a purpose to empower a wife to bring an action against her husband for injuries to her person occurring during the coverture."

Had Mrs. Barton survived the assault, she could not have maintained the action against her husband, because the right of action never existed.

At common law the right of action for personal injuries resulting in death died with the person injured (Holston v. Coal Co., 95 Tenn. 521, 32 S. W. 486; Railway v. Lilly, 90 Tenn. 563, 18 S. W. 243), and did not survive for the benefit of any one (Railroad v. Shewalter, 128 Tenn. 363, 161 S. W. 1136, L. R. A. 1916C, 964, Ann. Cas. 1915C, 605).

The authority of the administrator to maintain this action for the death of Mrs. Barton must be found in ...