Taylor v. Patten

275 P.2d 696, 2 Utah 2d 404, 1954 Utah LEXIS 229

• Court: Utah Supreme Court
• Decided: October 26, 1954
• Docket: 8119
• Status: Published

Opinions

WADE, Justice.

Plaintiff, Golda Taylor, appeals from a dismissal of her complaint against defendant Stanford Patten, respondent here, who was formerly her husband. She alleged that he intentionally beat and assaulted her during the interlocutory period of their divorce action while they were living apart. The dismissal is reversed because under our statutes a wife may recover from her husband for intentionally inflicted injuries.

Although our statutes do not expressly authorize such recovery, a liberal construction with a view to effect their objects and promote justice¹ indicates that such was the legislative intention. We agree that this represents a sound public policy and that experience of courts where it has been in operation has demonstrated that the dire results which courts have been wont to anticipate therefrom have not materialized. However, we reach this result not because we agree with the policy but because it is the policy adopted by the legislature, which body is responsible for the policy adopted and may change it if experience shows that a change is desirable. If the doctrine that statutes in derogation of the common law must be strictly construed were to be followed a contrary result might be reached, but such doctrine should not be followed here ² because the legislature intended that the courts should recognize and enforce intended changes in the common law. A majority of the states do not allow a wife to recover in this kind of a case. This is accounted for largely because the courts strictly construe their statutes and because of a difference between the statutes³ involved, but there are many states which do allow such a recovery and the number is constantly increasing.⁴

The judicial code dealing only with procedure which authorizes a wife to “sue and be sued in the same manner as if she were unmarried”⁵ does not alone confer upon a wife a new substantive right to recover damages from her husband for intentionally inflicted personal injuries, but when considered with our statutes dealing with the rights of husband and wife they do have that effect. Under section 30-2-2, U.C.A. 1953, “Contracts may be made by a wife, and liabilities incurred and enforced by or against her, to the same extent and in the ■ same manner as if she were unmarried.,” (Emphasis ours.)

Under section 30-2-4, U.C.A.1953, “A wife may receive the wages for her personal labor, maintain an action therefor in her own name and hold the same in her own right, and may prosecute'and defend all actions for the preservation and protection of. her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, * * * but the wife may recover against a third person for such injury or wrong as if unmarried, * * (Emphasis ours.)

These sections are not limited to procedure but deal with substantive rights as well.

The disability of a wife and to some extent of a husband to sue and be sued at common law is based upon a fiction indulged by the courts that the husband and wife are one, that the wife’s individuality during that period became merged in that of her husband. All of her personal property which he could reduce to possession during their marriage became his, and he had the right of possession, management and control of her real estate. During that period she could not sue for damages to her person, or property or for any other property rights but such suits were brought in the name of her husband and any damages or personal property which he recovered belonged to him and he had the right of possession and control of her real estate. Under that concept the wife could not sue her husband, not only because of the procedural difficulty that it would require the husband to sue himself but also because she could acquire no substantive right against him because he would be the owner of whatever he recovered in such suit.⁶ Under modern Husband and Wife statutes, such as ours, this fiction has been completely eliminated and the wife has been completely emancipated from this inability to. own, control and manage her property, and from her inability to sue and be sued for the protection of her property and personal rights. The reason for her inability and lack of rights has been completely eliminated with the logical result that such courts hold her disabilities and loss of rights have completely disappeared with the common law fiction that the husband and wife are one. Since the reason on which that disability was based has been eliminated, it is not necessary now to have an additional express statutory provision declaring that marriage does not disable a party thereto in enforcing tort liability against the other spouse.⁷

Our Husband and Wife statutes recognize in both husband and wife every kind of right which they were deprived of by the common law fiction that they were one, including the right to own, possess and manage every kind of real and personal property, the right to sue and be sued for the protection of évery kind of property and personal rights even as against the other. Besides the rights granted in the statutes above quoted, our statutes provide that the wife may be and remain the owner with the right of possession and control of all of her property whether acquired prior to or during coverture, which she may convey, devise and bequeath as if she were unmarried and that such property shall not be liable for the debts of her husband.⁸ A conveyance, transfer or lien executed by husband or wife in favor of the other shall be valid the same- as between other persons.⁹ Neither husband nor wife is liable for the debts of the other- whether contracted before or after marriage except for family expense or other liabilities which such party has contracted to pay, nor are the wages, earnings or property or the rents or income therefrom liable for the debts of the other.¹⁰ A husband or wife may sue the other for possession or control of his or her property the same as if unmarried.¹¹ Damages may be recovered only from the wife for civil injuries committed by her¹² and a husband or wife may appoint the other as his or her agent or attorney in fact and may revoke such appointment the same as other people.¹³

From the foregoing it is clear that the legislature intended to establish the separate identity of the husband and wife in all property and personal rights the same as if they were not married. Giving these statutes a liberal construction to effect their objects and in the interest of justice requires us to hold that a wife can sue and be sued the same as if she were unmarried, even for the recovery of damages from her husband for intentional personal injury. As was said by the Supreme Court of Illinois in Brandt v. Keller,, supra, on. page 734,109N.E.2d:

“Under our interpretation, 'the provision in question reflects a-legislative intent to establish the separate identity of a married woman, in all litigation, and to remove all her common-law disability with reference to suing, and being sued, so that she will be placed.in the same status ‘as if she were unmarried.’ It is our province to effectuate this purpose by construing the phrase ‘in all cases’ literally, so as to include all actions against all persons, including her husband, rather than to interject exceptions or give a restrictive interpretation to the statutory provision which would merely perpetuate a vestigial concept based upon the abrogated common-law rule that a married woman’s rights and property belong to her husband.”

Under this theory the husband could recover damages from his wife the same as she could recover from him for personal injuries intentionally inflicted during marriage. For the disability of the husband to sue his wife at common law comes from the same fiction that the two are identical indulged by the courts at common law which has now been removed by statute.

This does not mean that a husband or wife can recover from the other for any unwanted caress, kiss, or other physical contact as sometimes claimed. The marriage relation is created by the consent of both of the parties; inherently within such relationship is the consent of both parties to physical contacts with the other, personal dealings and ways of living which would be unpermitted and in some cases unlawful as between other persons. The essential objects and purposes of marriage such as living together, creating a home and rearing a family are expected and consented to by husband and wife but would be unlawful and in some instances even criminal as between other persons. Under some circumstances such consent might be withdrawn and thereafter would not prevent civil liability occurring, but until that happens the ordinary dealings between husband and wife are with the consent of both and do not create liability between them. However this does not mean that either husband or wife consents to intentionally inflicted serious personal injuries by the other.¹⁴

Judgment reversed witih directions to reinstate the complaint and proceed with the action.

Plaintiff shall recover her costs.

JOSEPPI G. JEPPSON, District Judge, concurs. WOLFE, C. J., being disqualified, did not participate in the hearing of this cause.

1 . See section 68-3-2, U.C.A.1953, and cases to that effect cited in the note thereto.

2 . This difference in statutory construction is analyzed in Courtney v. Courtney, 184 Okl. 305, 87 P.2d 660.

3 . See Courtney v. Courtney, supra, note 2, and Brown v. Gosser, Ky., 262 S.W.2d 480, 482, where it is said at pages 482 and 483 of the Southwestern Reporter that: “The minority rule received its greatest impetus from the dissenting opinion of Justice Harlan, concurred in by Justices Holmes and Hughes, in the case of Thompson v. Thompson, 1910, 218 U.S. 611, 31 S.Ct. 111, 114, 54 E.Ed. 1180, 30 L.R.A..N.S., 1153, 21 Ann.Cas. 921. Their dissent was based squarely on the wording of a District of Columbia married woman’s statute which, to our mind, is no broader than our equivalent Kentucky statute.

V “It is said in the case of Courtney v. Courtney, 1938, 184 Okl. 395, 87 P.2d 660, that nine states, in addition to Oklahoma, have adopted the minority rule. They are: Alabama, Bennett v. Bennett, 224 Ala. 335, 140 So. 378; Arkansas, Katzenberg v. Katzenberg, 183 Ark. 626, 37 S.W.2d 696; Connecticut, Kalamian v. Kalamian, 107 Conn. 86, 139 A. 635; Colorado, Rains v. Rains, 97 Colo. 19, 46 P.2d 740; New Hampshire, Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A. 1916B, 907; North Carolina, Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479; South Carolina, Prosser v. Prosser, 114 S.C. 45, 102 S.E. 787; North Dakota, Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 242 N.W. 526; and Wisconsin, Fontaine v. Fontaine, 205 Wis. 570, 238 N.W. 410. It is also pointed out in the Courtney case that some of the decisions in those states which still follow the common law rule are based on the peculiar wording of the statute in the particular state.

“It is also worthy of note that legal writers on this subject, apparently without exception, support the minority rule on the ground that the emancipation statutes and recognition of the right of one spouse to sue the other on contract, as well as in certain other instances, have eliminated the reasons on which the common law rule is based. Prosser on Torts, § 99, page 904, 43 Harv.L.Rev. 1030, 10 Cal.L.Rev. 461, 10 Ind.L.J. 290.”

4 .See cases cited in notes 2 and 3. In addition to the ten states pointed out in Courtney v. Courtney, supra note 3, as following this rule, four other states have adopted it. They are Idaho, Lorang v. Hays, 69 Idaho 440, 209 P.2d 733; Illinois, Brandt v. Keller, 413 Ill. 503, 109 N.E.2d 729; Kentucky, Brown v. Gosser, supra note 3, and Utah.

5 . See 78-11-1, U.C.A.1953.

6 . See cases cited in notes 2, 3 and 4, 43 Harvard Haw Review 1030.

7 . See authorities cited in note 6.

8 . See section 30-2-1, U.C.A.1953.

9 . See section 30-2-3, U.C.A.1953.

10 . See section 30-2-5, U.C.A.1953.

11 . See section 39-2-6, U.C.A.1953.

12 . See section 30-2-7, U.C.A.1953.

13 . See section 30-2-8, Ú.O.A.1953.

14 . See cases cited in previous notes, particularly Courtney v. Courtney, supra; Brandt v. Keller, supra, and Lorang v. Hays, supra; and 43 Harvard Law Review 1030.