This case is hereby proceedings in error to review a judgment of the District Court of Natrona County in an action wherein Constance S. McKinney was plaintiff and Thomas M. McKinney was defendant. The party last mentioned was the husband of the plaintiff and still is. The parties will be subsequently mentioned
as aligned in the District Court or by their marital relationship of husband and wife.
Summarized plaintiff's petition, after setting out certain preliminary allegations relative to the defendant's due compliance as owner of an automobile with the legal requirements necessary to obtain a registration number for this vehicle in Big Horn County, alleges that on September 4, 1938, about 5:30 in the morning, the defendant drove his car in a westerly direction upon United States Highway No. 20 to a "point about one mile east of Shoshoni, Wyoming. That at that time, and for some time prior thereto, there was and had been a pouring rain and that said Highway was in a slippery and dangerous condition, which facts were then known by the said defendant.
"That riding in said automobile with the said defendant upon invitation of the defendant and as his invited guest was the plaintiff, who then was, ever since has been and now is the wife of defendant.
"That the said defendant, at the time and place aforesaid, operated said automobile in a grossly negligent manner in this:
"That said defendant drove said automobile along and upon said Highway around a curve during such pouring rain and while said Highway was in such slippery and dangerous condition as aforesaid at a high and dangerous rate of speed, to-wit: about seventy-five miles per hour. That by reason of said gross negligence of the said defendant the said automobile went out of control, left the right hand side of said Highway, tumbled head-on and then sidewise, rolling over some six or eight times, coming to a stop with the right side of said car resting against the ground and the left side thereof in the air," whereby plaintiff was severely injured.
Recovery is sought for indebtedness incurred by the
plaintiff for medicines, nursing, medical care and attention and hospital expenses since the accident and for similar indebtedness that will be incurred in the future.
At the time of the accident the plaintiff was thirty-nine years old.
It will not be necessary to particularize the remaining portion of the pleading in order to understand the action taken by the trial court and the question submitted here for determination.
To this pleading the defendant interposed a demurrer to the effect that it did "not contain sufficient facts to state a cause of action in favor of plaintiff and against defendant." The issue of law thus raised was duly argued, decided by the District Court in favor of the defendant, and the plaintiff declining to plead further a judgment of dismissal of her action was directed against her. She as plaintiff in error has brought this judgment here for review as above set forth.
The point argued and submitted for decision is whether in this State a wife as an invited guest may sue her husband for his alleged gross negligence in driving an automobile under circumstances as detailed in the pleading so that as a consequence she suffered serious personal injuries. As may be surmised from what has hereinbefore been set forth the District Court ruled that she could not maintain the action.
There is no statute in this State according a wife such a right of action unless it may be found in the so-called Married Women's Act, W.R.S. 1931, Chapter 69. Sections 69-101, 69-103 and 69-105 would appear to be the pertinent provisions thereof. These sections read thus:
Section 69-101. "All the property, both real and personal, belonging to any married woman as her sole and separate property, or which any woman hereafter married
owns at the time of her marriage, or which any married woman during coverture acquires in good faith from any person whomsoever, or by descent or otherwise, together with all rents, issues, increase and profits thereof, shall, notwithstanding her marriage, be and remain during coverture her sole and separate property under her sole control and be held, owned, possessed and enjoyed by her the same as though she were sole and unmarried, and shall not be subject to the disposal, control or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband; provided, that the same shall not have been conveyed to her by her husband in fraud of his creditors; and that the necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately, provided, further, that the personal expenses of the husband be not chargeable to the wife's separate estate."
Section 69-103. "Any woman may, while married, sue and be sued in all matters having relation to her property, person or reputation, in the same manner as if she were sole."
Section 69-105. "Any married woman may carry on any trade or business and perform any labor or services on her sole and separate account and the earnings of any married woman from her trade, business, labor or services, shall be her sole and separate property and may be used and entrusted by her in her own name, and she may sue and be sued as if sole in regard to her trade, business, labor, services and earnings, and her property acquired by trade, business and services and the proceeds thereof, may be taken on any execution against her, except where the same shall be exempt under the exemption laws of the state."
They came into the body of our law through territorial enactment in the year 1869 and have been carried forward in subsequent revisions and compilations of the laws of the Territory of Wyoming and of this State. It may be noted in this connection that the two proviso clauses in Section 69-101, supra, were added by the
State Legislatures of 1915 and 1917. (See Laws of Wyoming, 1915, Chapter 15, whose title was: "An Act to amend and re-enact Section 3908 of the Compiled Statutes of Wyoming, 1910, relating to the separate estate of married women." and Laws of Wyoming, 1917, Chapter 5, the title thereof reading: "An Act to amend and re-enact Section 3908 of Wyoming Compiled Statutes, 1910, as amended and re-enacted by Chapter 15, of Session Laws of Wyoming, 1915, relating to the separate estate of married women and joint and several liability of both husband and wife for family expenses.") Otherwise the language is practically identical with that contained in the original territorial enactment which appears as Chapter 19 of Laws of Wyoming, 1869, said Act being approved December 4th of that year. The title of this original Act was simply: "An Act to protect married women in their separate property and the enjoyment of the fruits of their labor."
Another territorial Act which has likewise been carried forward into the law of this State was approved December 2, 1869. So far as pertinent here it declares that:
"The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, * * * * shall be the rule of decision in this state when not inconsistent with the laws thereof, and shall be considered as of full force, until repealed by legislative authority." (Italics supplied.)
(Sec. 26-101, W.R.S. 1931.)
In connection with the statute last mentioned it is hardly necessary to bring to mind certain unquestioned rules of the common law, viz., as stated in 27 Am. Jr. 191, Section 589: "At common law, a tort committed by one spouse against the person or character of the other does not give rise to a cause of action in favor of the injured spouse." See also 30 C.J. 714, Section 317,
and cited cases. And as also set forth in the text first above mentioned at page 202, Section 602, "At common law a married woman cannot sue or be sued alone, without joining her husband."
Just here it may also be recalled that it is well settled that in construing statutes the rules of the common law are not to be changed by doubtful implication nor overturned except by clear and unambiguous language. As pointed out by 25 R.C.L. 1054, Section 280, on the authority of many decisions:
"It is not to be presumed that the legislature intended to abrogate or modify a rule of the common law by the enactment of a statute upon the same subject; it is rather to be presumed that no change in the common law was intended, unless the language employed clearly indicates such an intention. * * * * The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language."
We also have still another statute which operates upon circumstances such as appear in plaintiff's pleading hereinabove set forth. That statute is the so-called guest law of this State, which deals with the liability of an owner of an automobile to an invited guest on account of the owner's gross negligence or wilful and wanton misconduct. That statute reads:
"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."
(Section 72-701 W.R.S. 1931.)
It is apparent from the law last above quoted that
for conduct falling short of gross negligence or wilful and wanton misconduct on the part of the husband towards his wife who is riding as an invited guest in his motor car there could be no recovery. This statute it would seem is a definite legislative destruction of the right of the wife — assuming she had that right before the statute was passed — to sue the husband for ordinary negligence in driving his car, whereby she is injured in consequence of being an invited guest therein. See Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961; Scotvold v. Scotvold (S.D.) 298 N.W. 266.
That gross negligence on the part of the defendant herein is alleged in the pleading attacked by demurrer as aforesaid can hardly be doubted, and this fact appears to have been assumed by the parties hereto as well as by the District Court. There remains then the point submitted above as to the right of a wife to sue her husband under those sections of the Married Women's Act already quoted and under the circumstances as detailed in plaintiff's pleading.
It is unnecessary to cite many of the decisions of this court declaring that the intent of the Legislature is the controlling factor in construing the laws it enacts. In International Harvester Company v. Jackson Lumber Company, 25 Wyo. 367,170 P. 6, it was said relative to the duty resting upon the Supreme Court of this State that "it is incumbent on this court to construe the statutes and laws of the state according to what it is convinced is the true intent of the lawmakers." Similarly in In re Lambert, 53 Wyo. 241, 80 P.2d 425, we stated:
"The intention of the lawmaking body to be gathered from the terms of the statute in the light of the objects and purposes intended to be accomplished is always the controlling factor in the construction of legislative acts."
Inquiry accordingly should be made as to whether it
was the true intent of the Territorial Legislature of Wyoming when it adopted the Sections of Chapter 19, Laws of 1869, as quoted above, to provide that the wife might sue her husband for his negligence in managing a conveyance in which they both were riding? It is well known, of course, that the automobile did not come into general use until some time after the year 1910, but it is hardly to be believed that in the "horse and buggy" days in Wyoming Territory and the early days of statehood the husband was never guilty of negligence in driving a team of horses attached to a buggy or wagon, whereby the wife was injured as she rode with him. Shall no significance be attached to the fact that for a lapse of more than seventy years after its enactment this is the first case of negligent injury inflicted upon a wife by her husband through which she seeks damages from him to be brought to the Supreme Court of Wyoming Territory or the Supreme Court of this State? If it had been thought that the Married Women's Act of this jurisdiction accorded such a right of recovery it would seem that cases would assuredly have been brought forward under it into the trial courts and ultimately reached the court of last resort.
In Wait v. Pierce, 191 Wis. 202, 209 N.W. 475, where the Supreme Court of Wisconsin adopted what will subsequently be shown to be the minority rule by a four to three division of the court, Chapter 99 of the Laws of Wisconsin of 1881 provided:
"And any married woman may bring and maintain an action in her own name for any injury to her person or character the same as if she were sole, and any judgment recorded in such action shall be the separate property and estate of such married woman, provided that nothing herein contained shall affect the right of the husband to maintain a separate action for any such injuries as now provided by law."
Chapter 529, Laws of 1921, further provided:
"Women shall have the same rights and privileges under the law as men in the exercise of suffrage, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, andin all other respects. The various courts, executive and administrative officers shall construe the statutes where the masculine gender is used to include the feminine gender unless such construction will deny to females the special protection and privileges which they now enjoy for the general welfare. The courts, executive and administrative officers shall make all necessary rules and provisions to carry out the intent and purposes of this statute." (Italics supplied.)
Concerning these Sections the strong dissenting opinion of Mr. Justice Eschweiler pointed out:
"It is not and cannot be contended that there is express language so abolishing the common law, either in the amendment by chapter 99 of 1881 which, after 45 years of innocuous desuetude in that regard is now declared to have such potent, though so long latent, effect in overturning that which has been all these years an unquestioned doctrine by bench and bar, or by chapter 529 of 1921. The conclusion reached by the majority must therefore be based solely upon construction. A construction moreover which in creating new rights for the wife also necessarily creates new rights for husband and minor child."
As we shall presently see, a number of appellate courts in the several States of the Union and the Supreme Court of the United States have declared that it was not the intent of the Married Women's Acts to create any new rights unknown to the common law, but only to remove the common law requirements that the wife must be joined with her husband in all actions for or against her and to enable her to sue alone, where formerly both could sue, or he alone, for wrongs against her. At this point it may be observed that the decisions
of the appellate courts of the nation, viewed as an entirety in construing the Married Women's Acts of the several States of the Union, are in hopeless conflict in the results they have reached as to the effect of those Acts, even when the statutory language before them has been identical or substantially so. It would be useless to endeavor to reconcile them. It cannot be done.
Up to the year 1910, the year of the decision in the case of Thompson v. Thompson, 218 U.S. 611, 31 Sup. Ct. Rep. 111,54 L.Ed. 1180, it is significant that not a single jurisdiction in this country, so far as our attention has been directed to the matter, had permitted either husband or wife to maintain an action for a personal tort against the other. The views expressed in the dissenting opinion in that case would seem to have supplied the first inducement to a number of state courts to reach conclusions opposed to the rule adopted by the majority of the court in the Thompson case. These dissenting courts have not always scrutinized carefully the exact terms of the laws under consideration at their hands. This line of dissenting cases even appears not to have commenced until the year 1914, when Connecticut and Oklahoma saw fit to break away from the rule announced by the highest Federal court of the nation. Brown v. Brown, 88 Conn. 42, 89 A. 889; Fiedeer v. Fiedeer, 42 Okla. 124,140 P. 1022. But the majority of the courts of the Union still follow the rule promulgated in the Thompson case, supra. Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114: 89 A.L.R. 118 note; 27 Georgetown Law Journal (April and May issues of 1939) 696, 893 at 922; 25 Marquette Law Review (February, 1941) 89 at 91.
In the Thompson case, supra, the plaintiff sued her husband for assault and battery, grounding her right to the action upon Section 1155 of the Code of the District of Columbia, where the parties were domiciled. That Section provided that "married women shall have
the power to * * * * sue separately for the * * * * protection of their property and for torts committed against them as fully andfreely as if they were unmarried * * *" (Italics supplied.) The action was dismissed on demurrer. The Court of Appeals of the District affirmed that judgment. 31 App. D.C. 557. On writ of error the Supreme Court of the United States affirmed that ruling. Justice Harlan wrote a dissenting opinion, which was concurred in by Justices Holmes and Hughes.
It will be observed that the language of the statute in that case is far more explicit and sweeping than the phraseology of the Wyoming law. Yet Mr. Justice Day, who wrote the majority opinion, said after quoting the District of Columbia law, in the course of his opinion:
"That is, the limitation upon her right of action imposed in the requirement of the common law that the husband should join her was removed by the statute, and she was permitted to recover separately for such torts, as freely as if she were still unmarried. The statute was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which, at common law, must be brought in the joint names of herself and husband.
"This construction we think is obvious from a reading of the statute in the light of the purpose sought to be accomplished. It gives a reasonable effect to the terms used, and accomplishes, as we believe, the legislative intent, which is the primary object of all construction of statutes."
To the suggestion that the wife might be severely injured by a brutal husband and for that injury he should be required to compensate her, it was responded:
"Apart from the consideration that the perpetration of such atrocious wrongs affords adequate grounds for relief under the statutes of divorce and alimony, this
construction would, at the same time, open the doors of the courts to accusations of all sorts of one spouse against the other, and bring into public notice complaints for assult, slander, and libel, and alleged injuries to property of the one or the other, by husband against wife, or wife against husband. Whether the exercise of such jurisdiction would be promotive of the public welfare and domestic harmony is at least a debatable question. The possible evils of such legislation might well make the lawmaking power hesitate to enact it. But these and kindred considerations are addressed to the legislative, not the judicial, branch of the government. In cases like the present, interpretation of the law is the only function of the courts."
The court further said:
"It must be presumed that the legislators who enacted this statute were familiar with the long-established policy of the common law, and were not unmindful of the radical changes in the policy of centuries which such legislation as is here suggested would bring about. Conceding it to be within the power of the legislature to make this alteration in the law, if it saw fit to do so, nevertheless such radical and far-reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention. Had it been the legislative purpose not only to permit the wife to bring suits free from her husband's participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing differences which otherwise might not be serious, it would have been easy to have expressed that intent in terms of irresistible clearness."
In connection with the dissenting opinion of Justice Harlan in the Thompson case it is especially worthy of note that the Supreme Court of Washington in Schultz v. Christopher, 65 Wn. 496,118 P. 629, has very well said concerning the particular statute involved in the Thompson case:
"So that it will be seen that it especially provided that married women might sue for torts committed
against them as fully and freely as if they were unmarried, and this was the special provision of the statute upon which the dissenting opinion of Judge Harlan, largely quoted by appellant in favor of her view of the law, was based. An examination of the dissenting opinion leads us to conclude with certainty that, had it not been for this special provision, the learned judge would not have felt called upon to dissent from the majority opinion."
It should not be overlooked as devoid of significance that though more than three decades have elapsed since the decision in the Thompson case the national Congress, so far as has been drawn to our attention, has not seen fit to alter the law of the District of Columbia contrary to the ruling in that case established.
It would seem that the court's reasoning in the first excerpt quoted above should be particularly applicable to the provisions of Section 69-103, supra, especially relied upon by plaintiff in error here, viz., that a married woman may "sue and be sued in all matters having relation to her property, person or reputation, in the same manner as if she were sole." (Italics supplied.)
Webster's New International Dictionary defines "manner" as "a way of acting; a mode of procedure; a mode or method in which something is done or in which anything happens; way; mode." So Seale v. Balsdon et al., 51 Cal.App. 677, 197 P. 971, says:
"The amendment last referred to also specifies that the assessments shall be collected in the manner provided by law at the time such assessments were made. As here used, the word `manner' has a definite meaning. It refers to the method of procedure. The manner of doing a thing has reference to the way of doing it — to the method of procedure. See Bankers' Life Insurance Company v. Robbins, 59 Neb. 169, 80 N.W. 484-486; 26 Cyc. 516."
Under these definitions it would seem that the lawmaking body in adopting the section now under consideration
was simply conferring upon a married woman the right to sue and be sued by third persons as if alone and without joining her husband, as was required at common law, as we have seen. She was to act in the same "way" or "mode of procedure" as if unmarried. It would appear to be disregarding the "plain or ordinary and usual sense of the words "same manner" — as Section 112-101 W.R.S., 1931, declares they shall be construed — "unless plainly repugnant to the intent of the legislature," to say that by those words the legislators intended to confer upon her a distinct right of action against her husband — something the common law did not give her. The legislature, if it had intended to confer that right, would undoubtedly have plainly said so. That has recently been done in the State of New York for example. See 7 Appleman on Insurance Law and Practice, P. 224, Sec. 4410 and citations.
Recurring again to the State statutes using the words "in the same manner" with reference to a wife's right to sue and the decisions under them, it may not be amiss to refer to the following authorities:
In Harvey v. Harvey, 239 Mich. 142, 214 N.W. 305, the statute (Sec. 12357, C.L. 1915) read: "Whenever a cause of action shall accrue to, or arise against, any married woman, she may sue or be sued in the same manner as if she were sole." And the court held in a suit thereunder by a wife against her husband for injuries received by her while riding in an automobile driven by her husband that her action must fail. The second sentence of the opinion reads:
"In the circuit judgment passed for defendant on the ground that a wife cannot maintain an action against her husband to recover damages for an injury occasioned by his negligence."
Its concluding sentence is:
"The circuit judge followed the rule in this state, and supported elsewhere by the great weight of authority."
In Keister's Adm'r v. Keister's Ex'rs, 123 Va. 157,96 S.E. 315, the Virginia law (Sec. 2286a Pollard's Code of Virginia 1904, Acts 1899-1900, p. 1240) provided: "* * * A married woman may contract and be contracted with, sue * * * in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by * * * her, shall have accrued before or after the passage of this act. * * *" And it was held that this statute did not confer upon a married woman a right of action against her husband for a personal tort, the court saying:
"The statute under consideration merely provides that at all times during the coverture a married woman is thereby given a right to sue, provided she had, at the time it is alleged that the cause of action arose, the substantive civil right which was necessary, as aforesaid, to give rise to such cause of action. The statute therefore is entirely consistent with the common law, which does not confer the substantive right aforesaid on married women, and hence does not change the common law in that regard by implication. That is to say, the portion of the statute under consideration has reference only to the remedies thereby given to married women, and does not confer the substantive right necessary to support the right of a married woman to sue her husband for an assault upon her committed by him during the coverture.
"Such is the conclusion to which we are led by a consideration of the statute on principle and under what are universally considered and admitted to be proper rules of construction of such a statute. We are confirmed in that conclusion by our examination of the authorities on the subject."
This language of the Virginia court received approval at the hands of the Supreme Court of Michigan in the Harvey case, supra.
In Conley v. Conley, 92 Mont. 425, 15 P.2d 922, the law (Sec. 5809, Rev. Codes of Montana) declared that "a married woman may sue and be sued in the same manner as if she were sole." In this case the wife
as plaintiff brought the action to recover damages from the defendant, her husband, for personal injuries alleged to have been caused by the negligence of the defendant husband's chauffeur while she was riding, at the defendant's invitation, as a passenger in defendant's automobile. A demurrer to the plaintiff's complaint was sustained. Plaintiff declined to amend and judgment was passed against her. The appellate court's disposition of the legal question thus raised is fairly indicated by the following excerpt:
"Clearly, the object of the Married Women's Act of Montana was to relieve the wife of common-law disabilities; among others, to place the wife on an equality with her husband with respect to property matters, the right to contract, and to sue and be sued. We see nothing in any of the foregoing statutes to indicate a purpose to create a right which neither husband nor wife had at common law.
"These sections do not attempt to confer greater rights of action upon a married woman than are possessed by her husband. Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A. (N.S.) 699; Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382; Heyman v. Heyman,19 Ga. App. 634, 92 S.E. 25. `By legislation common-law disabilities of the wife have been largely lifted, but lifting a disability does not operate to grant a right of action theretofore nonexistent between husband and wife. * * * Surely the Legislature, in conferring equality of right to sue did not confer a right of action never possessed by husband or wife at common law.' (Harvey v. Harvey, 239 Mich. 142, 214 N.W. 305,306."
The law of Nebraska provided: (Section 8529, Compiled Statutes, 1922) "A woman may while married sue and be sued, in the same manner as if she were unmarried." In Emerson v. Western Seed Irrigation Co., 116 Neb. 180, 216 N.W. 297, a demurrer was sustained to the plaintiff wife's petition, which charged that she was injured "through the negligent driving by her husband of an automobile." On rehearing of an
affirmance of an appeal from dismissal the court adhered to its original view of the case, and this was said:
"An examination of the decisions of other jurisdictions discloses a great weight of opinion opposed to opening a field of litigation between spouses in tort actions by means of judicial interpretation and without unmistakable legislative action. The procedural difficulties, the dangers of disrupting the secrecy and serenity of marital relations, the avenue for fraud, the startling innovation in permitting such controversies, and the lack of clear legislative indorsement have all been assigned as ample reasons for the refusal of the courts to sanction, by supplying statutory interpretation, a new form of litigation manifestly requiring unequivocal legislation for its existence. An illustration of this reluctance is found in 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, where the statutes under consideration come close to an authorization. * * * *
"The legislation of this state apparently was designed to remove disabilities from married women, so as to place the sexes in equal position before the law. This was fully attained. The husband may not sue the wife for tort. Both spouses have the same disability and the equality is complete. If this situation is to be disturbed, the change should come by legislation."
In New Jersey the law read, (3 N.J. Comp. St. 1910, p. 3236, § 12a):
"Any married woman may maintain an action in her own name without joining her husband therein for all torts committed against her, or her separate property, in the same manner as she lawfully might if a feme sole. * * *"
(3 N.J. Comp. St. 1910, p. 3237, § 12b):
"Any action brought in accordance with the provisions of this act may be prosecuted by such married woman separately in her own name, and the nonjoinder of her husband shall not be pleaded in any such action."
Concerning this statutory language the New Jersey Court of Errors and Appeals said in Sims v. Sims, 79 N.J.L. 577, 582, 76 A. 1063:
"That this act was intended to confer the power upon a married woman to protect and enforce her rights, is the specific announcement contained in its title. The body of this act declares that she may maintain an action as a feme sole might lawfully do, and without joining her husband therein for all torts committed against her or her property. Keeping in mind the old law and the existing mischief, it becomes manifest that the legislative intent which inspired this remedial measure could have been only a desire to confer upon the married woman that equality of remedy as an independent suitor, which would enable her to vindicate her right in personam for a tort committed against her, and thus remedy the inequality to which she was subjected by the common law."
See also Howard v. Howard, 200 N.C. 574, 158 S.E. 101, where the North Carolina court, one of those jurisdictions where the minority rule is applied, construed the New Jersey law and held thereunder that no action could be brought by the wife against her husband for his negligence in driving his automobile in the State of New Jersey, where the accident happened.
See additionally Hudson v. Gas Consumers' Association,123 N.J.L. 252, 8 A.2d 337, where it was said:
"It is of course a settled matter that a wife may not have a suit for damages against her husband for his tort. This is the common law rule and no statute has been enacted in this state that disturbs it."
The case of Rains v. Rains, 97 Colo. 19, 46 P.2d 740, is the only case to which our attention has been called which has a statutory provision similar to our Section 69-103 W.R.S. 1931, and which has adopted the rule that the wife may sue her husband for his negligence.
The author of an extended article in the Georgetown Law Journal, supra, after an exhaustive survey of the point we are considering as reflected in the decisions of the appellate courts of the nation, states that "actions for negligence between husband and wife have been denied in this country in the following twenty-one jurisdictions: "District of Columbia, Florida, Georgia, Indiana, Iowa, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Tennessee and Vermont"; that "tort actions between spouses have been foreclosed in the following nine jurisdictions" and "California, Delaware, Illinois, Kentucky, Massachusetts, Texas, Virginia, Washington and West Virginia are so listed. This foreclosure has been accomplished either by the denial of previous suits for willful torts or by statutes. Massachusetts has foreclosed the matter by a statute expressly forbidding the wife to sue her husband. The author points out also that West Virginia has allowed recovery for negligence between husband and wife where indemnity liability insurance exists, the authority for this statement being found in the decision of the West Virginia court in Lusk v. Lusk, 113 W. Va. 17, 166 S.E. 538, which was an action between parent and child. And this West Virginia rule would appear to have the sanction of the author, he apparently disapproving the rule which would allow the wife to sue the husband for torts generally. But in 7 Appleman Insurance Law and Practice 223, § 4410, the author of that text propounds the query in criticism of that relaxation of the majority rule, after pointing out in the note to the text that New Hampshire has reached the same result under an employer's liability policy (Dunlap v. Dunlap, 150 A. 905, 84 N.H. 352), where, as in the Lusk case, the action was between parent and child:
"Is it possible that such courts can overlook the detriment
to public morals by encouraging collusion in such instances?"
That the text last mentioned had reference to a real danger is evidenced by the language of the United States Circuit Court of Appeals for the Fourth Circuit in State Farm Mutual Automobile Insurance Company v. James, 80 F.2d 802, where an exception in an insurance liability policy as to a person in the same household as the assured was being considered. The court remarked:
"Obviously the exception was intended to restrict the company's liability, and the specific purpose was to safeguard the company against the natural and inevitable partiality of the assured to an injured person if he should happen to be a member of the same family circle."
Similarly in a New Hampshire case later than the Dunlap case, viz., Cartier v. Cartier, 84 N.H. 526, 153 A. 6, it was said:
"The natural tendency of one insured to strengthen or enlarge the evidence of liability to members of his household for accidents insured against increases the hazard of liability under the policy in such cases over that for accidents to others. Without actual dishonesty, the disposition to favor those close to one reflects itself in opinions and judgments, and one insured is more likely to concede by admission or nonresistance blame for hurting a member of his household than for doing harms to others."
Commenting on the same matter the note in 31 Illinois Law Review 782-793 remarks:
"The modern personal injury suit between spouses is usually directed at an insurance company, in fact, and presents a real danger of collusion. This possibility seems the best basis for refusing such suits. * * * *"
Referring again to the article in the Georgetown Law Journal, aforesaid, it is noted that, as stated
therein, only ten jurisdictions allow tort actions between spouses, those so listed being "Alabama, Arkansas, Colorado, Connecticut, New Hampshire, North Carolina, North Dakota, Oklahoma, South Carolina and Wisconsin."
To this list should be added the subsequently decided case of Scotvold v. Scotvold (S.D.) 298 N.W. 266. A recovery against the husband by the wife for personal injuries caused by his alleged negligence in driving an automobile was, nevertheless, denied under the guest statute law of that state akin to our § 72-701, supra. It may fairly be pointed out, as well, that the law relied upon by the wife as according her the right to sue her husband was far more specific and enlarged in its phraseology than the Wyoming law quoted above. The South Dakota statute thus urged by the wife in that case read:
"The wife shall have and retain after marriage all the civil and property rights of a single woman. She may buy and sell, receive and convey or otherwise dispose of any real or personal property belonging to her or in which she may have an interest, without joining the name of her husband except as otherwise provided in case of the homestead and for any injury to her reputation, person or property, she may sue in her own name without joining her husband as party plaintiff and in like manner actions founded upon her separate contracts or torts or relating to her individual property may be brought against her without joining the husband as party defendant. * * * *"
Reference has hereinbefore been made to the Wisconsin law in the quotations above given and its dissimilarity with our Married Women's Act is also quite evident.
Concerning the North Dakota and Oklahoma cases which adhere to the minority view (Fitzmaurice v. Fitzmaurice, 62 N.D. 191,242 N.W. 526; Fiedeer v. Fiedeer, 42 Okla. 124, 140 P. 1022; Courtney v. Courtney, 184 Okla. 395, 87 P.2d 660) they also were rendered under statutes radically different from the Wyoming law now under consideration and far broader in their scope. In the Fitzmaurice case the court says of the statute there construed, "We have been unable to discover any other statute identical with our own," and the court quoted the statute under consideration in that case as follows: (C.L.N.D. 1913, Section 4411)
"Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which the other might, if unmarried. The wife after marriage has with respect to property, contracts and torts the same capacity and rights and is subject to the same liabilities as before marriage, and in all actions by or against her she shall sue and be sued in her own name."
The statute before the Oklahoma courts read:
"Woman shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injuries sustained to her reputation, person, property, character, or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone. * * *"
(Sec. 3363, Rev. Laws 1910.)
The opinion in the case of Courtney v. Courtney, supra, remarks that that court in Moore et al. v. Moore, 59 Okla. 83,158 P. 578, with especial reference to this law, declared "in effect that it means exactly what it says; that it provides that married women shall have the same rights that their husbands have as `men' — not as husbands." Nevertheless the Courtney case was decided by a division of the court of five to four judges.
From what has been presented hereinbefore it is not to be overlooked that the great state courts of this nation, as well as the Supreme Court of the United States,
have denied the wife the right to sue her husband for a personal tort unless that right has been specifically conferred by a definite statutory enactment to that effect. It is believed that the weight of authority is in accord with this view. That fact it would seem is a very cogent reason for asserting that the Legislature and not the courts should indicate a contrary policy of the law if that is to be the rule. Had the attention of the Legislature which passed the Wyoming Territorial law of 1869 been directed to the problem now being considered, can it be reasonably concluded that it would have provided in specific language that the wife should be granted the right to sue her husband for a negligent tort? In view of the title of the Act aforesaid and the terms of the law, as reviewed above, it is not easy to think that such legislation would have been forthcoming. Of course, if a wife should be accorded the right to sue her husband for his negligence, whereby she is injured, then under the "be sued" as to her "person" provision of Section 69-103, W.R.S. 1931, supra, the husband would have to be held to have been accorded the same privilege, otherwise the unusual situation would be presented of the wife having a cause of action against her husband for negligence while the husband would have no such right against the wife. It would appear that the statutory language that she may "be sued" as to her "person" makes it additionally plain that the Legislature had in mind in using the language it did only her relations with third persons. Suppose a wife so carelessly prepares a meal that her husband is made ill, shall he have a right of action against her for negligence in so doing? To ask such a question is to answer it in the negative. It may be said that such a case may never arise and that this suggestion is overdrawn. Possibly, but to one who has listened to the testimony in many divorce suits, the suggestion does not seem to be so. Why open the courts to ordinary actions
for negligence between the spouses when if the domestic tranquillity has been so thoroughly upset and the parties have lost all affection for each other, the divorce court is always available? Thompson v. Thompson, supra.
In the case of Finn v. Finn, 19 Ohio App. 302, it was held that where husband and wife lived together the wife could not maintain an action of tort against her husband to recover for injuries sustained by her through alleged negligence on his part in managing his automobile. Judgment was given for the defendant upon the pleadings. Affirming this judgment the Ohio Court in the course of its opinion said:
"The statutes of this state will be searched in vain for any provision expressly permitting the husband or wife to sue each other for injuries to the person or property of either. That the wife may sue in her own name and right upon any cause of action which she may have, whether it arise out of contract or out of injury to her person or property, is beyond dispute in this state. (Section 11245, General Code.) These enabling statutes, however, confer on her no new causes of action. They have only conferred upon the wife the same rights with reference to property, and the maintaining of actions in court, as were theretofore possessed by the husband. The right of the wife to maintain an action in her own name against third parties for wrongs sustained by her through the action of such third parties has been sustained by the Supreme Court in Westlake v. Westlake,34 Ohio St. 621, and in Flandermeyer v. Cooper, 85 Ohio St. 327. That the enabling statutes above referred to were not intended by the Legislature to confer upon either husband or wife the right to maintain civil actions for tort against the other was the opinion of the Supreme Court expressed in the decision of State v. Phillips, 85 Ohio St. 317. * * * * * *
"It must be presumed that the legislators knew the policy of the common law, as established by centuries of judicial decisions. Had it been the intention of the legislature to permit husband and wife to sue each
other for injuries to the person or property caused by the other, it surely would have so declared by express and clear legislative enactment. To make such a radical change in the policy of the common law by judicial construction would be equivalent to such legislation. While the common-law unity of person in the husband and wife no longer prevails, nevertheless the marriage ceremony does constitute a new relationship whereby the parties assume a different responsibility toward each other and toward society. As husband and wife, there is at least a unity of interest in the establishment of a home. The home has been looked upon as constituting the basis of our civilization and the strength of our government. Love of home is regarded as the greatest safeguard of our institutions. The growing volume of divorce cases is cause for apprehension as to the future of our domestic stability. It would seem that any policy that may add to the causes for dissension between husband and wife would be of doubtful benefit. The intimate relations of home life might easily become the source of fruitful litigation. Shall a misplaced chair over which husband or wife falls furnish the grounds for an action against the other because of his or her alleged negligence? If such is to become the policy of the law, if such a radical change, so vitally affecting the legal status of husband and wife, is to be made, it should be made by clear and express legislation and not by judicial construction.
"We are aware of the fact that the courts of different states are not in accord upon this proposition, but the great weight of authority is opposed to the position taken by plaintiff in error in this case."
The Supreme Court of Ohio according to the statement contained in the case of Canen v. Kraft, 41 Ohio App. 120, 125, overruled a motion to have the record in the Finn case certified up to it.
It is evident from the foregoing authorities that the legislature of this state is the proper body to make such an important change of policy as is sought to be attained by this proceeding in error through strained judicial construction.
In this connection the Supreme Court of Minnesota
in the case of Drake v. Drake, 145 Minn. 388, 177 N.W. 624, 9 A.L.R. 1064, has employed language which should not be overlooked. That was a case where an injunction was sought by the husband against a wife to restrain the wife from committing "a series of personal torts involving neither a breach of contract nor specific property right" and "amounting to what is commonly known and understood as nagging." The court very forcefully said:
"We prefer the rule of the Strom Case (98 Minn. 427,107 N.W. 1047, 6 L.R.A. (N.S.) 191, 116 Am. St. Rep. 387), and think it should be adhered to until such time as the Legislature shall deem it wise and prudent to open up a field for marring or disturbing the tranquillity of family relations, heretofore withheld as to actions of this kind, by dragging into court for judicial investigation at the suit of a peevish, fault-finding husband, or at the suit of the nagging, ill-tempered wife, matters of no serious moment, which if permitted to slumber in the home closet would silently be forgiven or forgotten. If that source of litigation is to be opened up at all, it should come about by legislation. Neither husband nor wife is without an appropriate remedy in such matters, where of a character to be redressed by the courts. The divorce courts are open to them, when the facts will justify relief of that character, and when the misconduct complained of is of a nature to constitute a crime the criminal laws will furnish adequate protection. But the welfare of the home, the abiding place of domestic love and affection, the maintenance of which in all its sacredness, undisturbed by a public exposure of trivial family disagreements, is so essential to society, demands and requires that no new grounds for its disturbance or disruption by judicial proceedings be ingrafted on the law by rule of court not sanctioned or made necessary by express legislation."
No useful purpose would be subserved by extending this opinion further though many additional reasons in support of the view maintained by it could be easily supplied. It follows from what has been said that the
learned District Judge who tried this case and gave judgment as stated above was correct in the result he reached, and the judgment should be affirmed.