Wills v. Jones

13 App. D.C. 482, 1898 U.S. App. LEXIS 3232

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 8, 1898
• Docket: No. 834
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

The assignment of errors, eight in number, includes all the rulings made by the trial court in the progress of the case. But these rulings are reducible, and they have in fact been reduced in the argument on behalf of the appellant to three or four principal questions, which we will proceed to consider in their order.

1. The first of these questions, which we do not understand to be greatly insisted on on behalf of the appellant, is whether it was proper for the trial court' to permit the divorce proceedings between the appellee and the appellant to be given in evidence. We find no substantial ground of objection to this testimony. It was simply explanatory of the relations between the parties. The appellee had previously testified that she had been a member of the firm of “W. H. Wills & Co.,” and that W. H. Wills was at the time her husband, and that she was the “company,” and it was propel’, and even necessary, thereafter to show that W. H. Wills was no longer her husband. It is true that objection was made to the statement by her that W. H. Wills had been her husband; although no error is here assigned upon the admission of that statement in evidence. But the statement appears to us to have been entirely proper in explanation of the circumstances which led up to the alleged libel.

2. The second, and perhaps the most important question in the case is, whether the plaintiff, as a married woman at the time of the institution of the suit, being then the wife of Robert C. Jones, could maintain the suit in her own name and right without the intervention of her husband. It is argued that the declaration in both of its counts alleges injury to her individually in her business and profession, and not to the partnership of which she was and continued to be a member, that of “ N. W. Wills and Co.,” which is specifically mentioned in the alleged libels; that the injury shown by the libels and proved on the trial were injuries to the partnership, and not to the individual plaintiff; that for injuries to the partnership all the members of the firm should have been joined as parties to the suit, and that for the injuries to herself individually, if any there wrere, the plaintiff’s husband should have been made a party to the suit with her. But we think that this argument, although plausible, is not substantial.

In a case like this the distinction between partnership injury and individual injury is shadowy and unreal. There is no partnership in a matter of libel or slander, at least no such partnership as in civil cases would require the joinder of parties as plaintiffs or defendants in consequence of a purely joint right or joint liability. A partnership is not a legal entity in itself which under any proper construction of language could be the subject of slander or libel, although if two or more persons composing a partnership are jointly slandered or libeled, it is not improper that they should join in one and the same suit for damages. To say or to write of a partnership that it is incompetent for the business which it purports to transact, substantially and necessarily means that the individuals who compose the partnership are incompetent, and the injury to the individuals is the substantial injury in the case. It is no more than to say or to write that A and B, who happen to be partners, were incompetent; and assuredly the mere joinder of two or more persons in one libel and slander does not render it incumbent on such persons to join in one suit in order to have redress for the injury. This we regard as the plain dictate of reason, and it follows from it that the appellee in. the present case was under no necessity to join her partner of the firm of N. W. Wills and Company with her in the suit, and that in her own single suit she might recover for all the injury done to her by the alleged libel, if it was a libel, whether that injury resulted to her in connection with another person or in any other way.

But the question recurs whether, being entitled to sue without the joinder of any partner with her, she is then required to adopt the other alternative of joining her husband with her in the suit. We do not think that she is under any such necessity.

There is no doubt as to the general rule laid down by Mr. Chitty in his work on Pleading, that “when an injury is committed to the person of the wife during coverture by battery, slander, etc., the wife can not sue alone in any case, and the husband and wife must join in the action brought for the personal injury or suffering of the wife, and that in such case the declaration ought to conclude to their damage, and not to the damage of the husband alone, for the damages will survive to the wife if the husband die before their recovery; ” and this rule remains the law, even in the face of many of the statutes, known as married woman’s acts, now so general in all the States of our American Union, as well as in England and her colonies, which provide for the right of married women to sue and be sued independently of their husbands in all matters that concern their own separate property. The courts have held, with considerable uniformity and perhaps not always with reasonable liberality, that these statutes are in derogation of the common law, and are therefore to be strictly construed and not to be extended beyond the strict letter of their provisions.

Thus, under our act of Congress of April 10, 1869 (16 Stat. 45), incorporated into the Revised Statutes of the United States for the District of Columbia as Sections 727 to 730, both inclusive, whereby it was provided that in this District “the right of any married woman to any property, personal or real, belonging to her at the time of marriage or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband nor be liable for his debts,” and that she “may convey, devise, and bequeath her property, or any interest therein, in the same manner and with like effect as if she vrere unmarried,” and “ may contract and sue and be sued in her own name in all matters having relation to her separate estate in the same manner as if she were unmarried,” it was held that the earnings of a wife while she cohabited with her husband were the property of the husband, and not her property (Seitz v. Mitchell, 94 U. S. 580); that she could not contract for supplies for the support of her family so as to bind herself individually or her separate estate (Schneider v. Garland, 1 Mackey, 350); that she could not bind herself or her estate for payment for a carriage to be used by her for her convenience in attending to her property (McDermott v. Garland, 1 Mackey, 496); that she could not bind herself individually by a contract for the purchase of real estate or of furniture when she had no separate estate in which to place it (Solomon v. Garland, 2 Mackey, 113), and that a married woman living with her husband could not contract as a sole trader (Hitchcock v. Richold, 5 Mackey, 414), and no doubt there are other illustrations of her continuing disability.

In the primary period of this class of legislation, when the legislative authority was only feeling its way cautiously, this strictness of construction was proper and wise, and not inconsistent with the scope and purpose of the legislative enactment. But undoubtedly the tendency of all the more recent legislation in this regard both in England and in the States of our Union and by Congress for the District of Columbia, is towards the total emancipation of married women from all the old feudal restraints imposed upon them by the common law as the supposed consequence of the legal unity of husband and wife, and the present trend of public policy is to place them in all their business relations with the world upon a plane of perfect equality with those who are unmarried.- The time would seem, therefore, to have arrived when the courts should no longer give these statutes a narrow or illiberal construction, such as they may have heretofore .received, but a broad and reasonable one, such as may best subserve the spirit and the purpose of their enactment.

But no great stretch of construction is needed to make our latest act of Congress on this subject applicable to the present case. The act of Congress of June 1, 1896 (29 Stat. 193), is a very great enlargement of the act of April 10,1869, the main portion of which it purports in terms to repeal, but the substance of which, with broader powers, it undertakes to re-enact. As 'will be perceived, it specifically gives to married women each and all the rights which the adjudications which we have mentioned had held to have been denied to them under the previous statute. The act, so far as it relates to the subject-matter under consideration, is as follows:

“Be it enacted, etc., That the property, real and personal, which any woman in the District of Columbia may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and real, personal or mixed property which shall come to her by descent, devise, purchase, or bequest, or the gift of any person, shall be and remain her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband or liable for his debts, except that such property as shall come to her by gift of her husband shall be subject to, and be liable for, the debts of her husband existing at the time of the gift.

“Sec. 2. That a married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property, and enter into any contract in reference to the same in the same manner, and to the same extent and with like effect as a married man may in relation to his real and personal property; and she may, by a promise in writing, expressly make her separate estate liable for necessaries purchased by her or furnished at her request for the family.

“Sec. 3. That any married woman may carry on any trade or business, occupation, or profession, by herself or jointly with others, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, profession, occupation, labor, or services, shall be her sole and separate property, and may be used and invested by her in her own name.

“ Sec. 4. A married woman may contract, and sue and be sued in her own name in all matters having relation to her sole and separate property, in the same manner as if she were unmarried; and her husband shall be joined with her when the cause of action is in favor of or against both her and her husband.”

As is evident from the last clause of Section 4 last cited, the statute does not yet entirely enfranchise married women from the disabilities imposed by the common law in regard to the matter of suit by them in their own right and in their own individual names; but it greatly enlarges the scope of the separate estate which they may hold; authorizes them to engage freely in any business, occupation, or profession into which they may think proper to enter; secures their earnings to themselves and empowers them to protect their separate estate, their business and their earnings by all legal proceedings appropriate for the purpose. It is very clear that if a married woman now chooses to avail herself of the right restored to her by the statute to engage in any business or profession, she is entitled in her own name and right to- have recourse to any and all remedies, either at common law or in equity, necessary or proper to protect her in such business or profession, or to enforce any rights growing out of the exercise thereof; and plainly the right of suit is not confined to actions ex contractu alone; the action ex delicto may be as necessary as the action ex contractu to the protection of her rights of property. It would be a vain and worthless enactment which, after empowering her to carry on business in her own name and right, would then restrict her to actions ex contractu for the protection of that business. Protection against tort is as necessary as the enforcement of contract. The statute makes no distinction between the two, and imposes no limitation other than that the suit must have relation to her separate property. It is a maxim of the law and of reason that qui vult finem vult media. A grant of power implies a grant of all the means necessary and proper to carry the power into effect. What Chief Justice Marshall, speaking for the Supreme Court of the United States, said in the case of McCullough v. Maryland, 4 Wheat. 316, 421, in reference to our Federal Constitution, is entirely appropriate here: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”

There is nothing more calculated to injure, and even to destroy, one’s business, occupation or profession than a libel or slander uttered concerning him with reference to such business, occupation or profession. Can it be that the legislature, in the enactment now before us, while giving to a married woman the right to carry on a business or profession. on her own account, intended at the same time to withhold from her the right to pursue the proper remedy for its preservation and for its protection from unlawful assault? We can not think so. That would not be in accordance either with the letter or the spirit of the statute. To reach such a conclusion it would be necessary to give an exceedingly strained construction to the statute, and to import into it a distinction in the matter of suit which is not sanctioned by anything contained in the statute itself, and which, on the contrary, is wholly antagonistic to its scope and purpose.

We have no doubt, therefore, that in a case like the present a married woman is entitled to maintain a suit in her own name without joining her husband therein, for a libel published concerning her with reference to the business in which she is engaged.

3. There remains a third question to be disposed of, which was raised by the motion in arrest of judgment interposed by the appellant in the trial court. This question is whether, if the second count of the declaration states no sufficient cause of action, judgment could properly have been rendered upon the verdict, since the verdict was a general one under both counts of the-declaration; but we think that a good and sufficient cause of action was stated in the second count, and that therefore the question does not arise. The matter set forth in this second count and charged to be libelous is the statement made by the defendant to the effect that the plaintiff had unlawfully interfered with mail matter intended for him. The ordinary inference from this would be that the plaintiff had been guilty of acts which constituted a criminal offense against the laws of the United States. The plaintiff in her testimony swears that ' the statement was untrue, and there is no attempt on the part of the defendant to substantiate it. Now, to charge a person in writing untruthfully with the commission of a criminal offense is in itself libelous, and it does not aid the appellant in this case that' the statement purports to have been taken from a bill filed in a court of equity. That bill had been filed by the appellant himself. If the statement was untrue, it acquires no special sanctity by being set out in a legal proceeding, nor does the legal proceeding give it the justification of privilege when published in a newspaper or circular such as the appellant was engaged in publishing. The publication was not made in good faith as an item of news in which the public were interested and which the public had the right to learn. The sole purpose was to give wider circulation to a charge vitally injurious to the reputation of the plaintiff for honesty and integrity in the conduct of her business.

We are of opinion that there was no error in the rulings of the trial court in this case, and that therefore the judgment appealed from must be affirmed, with costs; and it is so ordered.

On December 23, 1898, Mr. Baker, on behalf of the appellant, filed a motion for a rehearing.

On January 3, 1899, the motion was overruled, Mr. Justice Morris delivering the opinion of the Oourt:

A motion for rehearing has been filed in this case. We would be glad to entertain this motion and to grant a rehearing if we thought that there was any probability of our modification of the conclusions heretofore announced in the cause; but upon the original hearing we gave to the case and to all the questions raised in it and raised in this motion, for a rehearing all the consideration which we deemed to be justly due to them, and we do not think that upon a rehearing we would reach any different conclusion.

We regret that, in view of the amount involved, the petitioner is not entitled to remove the cause by writ of error to the Supreme Court of the United States; but it may be, that upon a writ of certiorari, that court will entertain jurisdiction of the case and revievf our judgment, and we will be glad to facilitate, so far as we may with propriety, an application to that court for that purpose. The motion for a rehearing must be denied.