Wait v. Pierce , 191 Wis. 202 ( 1926 )

The following opinion was filed May 11, 1926:

Rosenberry, J.

Two questions are presented upon this appeal. First, under the law of this state, may a wife maintain an action against her husband for injuries to her person, proximately caused by the negligence of the husband? Second, may a third party maintain an action for contribution for injuries caused by the joint negligent act of the third party and husband, even though the wife cannot maintain an action directly against the husband on account of the injuries sustained by her?

The first and primary question in this case has never been answered by this court. Its answer involves not only a consideration of the law, but questions' of public policy which are vigorously urged upon-our attention. We fully recognize the importance of a decision in this case and the fundamental character of the questions involved. We haye been greatly aided in our consideration of this question by the able and exhaustive briefs which have been filed upon both sides.

We may begin our consideration by a reference to the constitution of the state of Wisconsin, sec. 13, art. XIV, which provides:

“Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state-until altered or suspended by the legislature.”

It is fully and freely conceded that at the common law neither the husband nor the wife could maintain an action against the other for damages by reason of any wrong done by thé one to the other. The constitution was adopted in 1848. The Statutes of 1849 contain no provision modifying the common-law disabilities of married women. “An act to provide for the protection of married women in the enjoyment of their own property” (ch. 44, Laws of 1850) was adopted at the second session of 'the legislature. This enactment was carried forward and became secs. 1, 2, and 3 of ch. 95 of the Revised Statutes .of 1858, became secs. 2340, 2341, and 2342 of the Revised Statutes of 1878, and the sections were continued in the Statutes of 1898, and are now secs. 246.01, 246.02, and 246.03 of the Statutes of 1925. These sections conferred upon the wife the right to hold real estate and personal property free from control by the husband, and as amended permitted the husband and wife to contract with reference to the property held by her with the same legal effect as if the transaction were between other persons.

By sec. 3 of ch. 155 of the Laws of 1872 a married woman was given the right to sue in her own name and have all the remedies of a single woman with respect to her earnings, and she was made liable to be sued as if single for the recovery of her ante-nuptial debts, and execution might be levied on any judgment against her as against other judgment debtors except that an execution against her person could not issue.

Sec. 3 of ch. 155 of the Laws of 1872 was carried into the Revised Statutes of 1878 as sec. 2345 and is the basis of the present statute (sec. 246.07). It was amended by ch. 99 of the Laws of 1881 by adding thereto the following :

“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.”

Determination of the principal question! presented by the record in this case depends upon the interpretation given to the amendment of 1881.

It has been held over and over again that the intent of the legislature when discovered must control in the interpretation of statutes. Did the legislature intend by the enactment of ch. 99 of the Laws of 1881 to confer upon a married woman the right to bring an action against her husband for any injury to her person or character the same as if she were sole? The intent of the legislature is to be determined first by the language which the legislature used in conferring the right. It is conceded that this language is broad enough, if the language be given its natural and ordinary meaning, to confer such a right. If she were sole, she could maintain an action “for any injury to her person or character” against any person whose wrongful act caused the injury. Under the amendment, can a married woman do so if the wrongdoer happens to be her husband? It is quite apparent she can unless something in the nature of an exception be interpolated into the statute. It must be interpolated because the statute itself contains no exception. It is argued very forcibly that the legislature could not have had in mind in the enactment of the statute the possibility that under its terms a wife might bring an action against her husband for tort, first, because no such right existed at common law and that the statute is by its terms in derogation of the common law and therefore to be strictly construed; second, that the right of a wife to sue her husband for tort or the right of the husband to sue the wife for tort is so contrary to the fundamental principles of the common law that had that situation been present in the minds of the legislators it is not to be supposed that the legislature would have enacted the statute; third, that the conferring of such a right upon the wife tends to promote family discord and so strikes a blow' at the family relation which is the foundation of our social order, and for that reason it should be held that the right is not conferred by the general language of the act.

From an early day this court has held that conferring upon married women by statute the rights which they possessed before their marriage was not so much the creation of a power which a married woman never possessed as a restoration of power which she had as a feme sole and which she lost by her marriage. Krouskop v. Shontz (1881), 51 Wis. 204, 217, 8 N. W. 241; Carney v. Gleissner (1885), 62 Wis. 493, 22 N. W. 735. Such statutes are to be liberally construed. Krouskop v. Shontz, supra; Houghton v. Milburn (1882), 54 Wis. 554, 11 N. W. 517, 12 N. W. 23; Shanahan v. Madison (1883), 57 Wis. 276, 15 N. W. 154.

Under the statute conferring upon a married woman the right to hold real and personal property and to sue and to be. sued in relation thereto, it was held that a husband could maintain an action of replevin against the wife. The court said:

“The language of our statute is "plain. The wife may ‘be Sued in respect to her separate property or business,’ and in respect thereto has ‘all the remedies of an unmarried woman.’ The husband is nowhere excepted from the operation of the statute, and we have no right to except him.” Carney v. Gleissner, 62 Wis. 493, 498, 22 N. W. 735.

Second. Courts cannot be charged with any lack of respect for the common law. No. doubt the departure from some of its fundamental principles has been accompanied by loss rather than gain. On the other hand,. its greatest admirer cannot .claim perfection for it. At common law the personality of the .wife was merged in that of the husband and there existed a legal, unity. That conception grew out of conditions which no longer exist, and rested, in the final analysis; upon a conception which made the wife little more than a chattel of the husband. The rigor of the common law in this respect has been greatly relaxed, and both by decision and statute married women have gradually attained in law a place of equality with the husband in the marital status. This gradual change in the status of the wife has been viewed with alarm by many common-law lawyers.

In Duffies v. Duffies (1890), 76 Wis. 374, 45 N. W. 522, it was held under the amendment of. 1881 that a wife could not maintain an action against a third person for the alienation of her husband’s affections and the loss of his society. It is quite clear that the court reached its conclusion in part at least for the reasons that are urged upon us here, — particularly that it was not in accord with sound public policy. The court said:

“Such a right of action does not exist by law, nor can it be inferred from the ameliorated and changed conditions of the wife, and her equality with her husband, produced by modern legislation in her behalf. Whatever equality of rights with her husband she may have, it is not'proper to say that ‘her right to the society of her husband is the same in kind, degree, and value as his right to her society.’ There are natural and unchangeable conditions of husband and wife that make that right radically unequal and different.

“This right of action in the wife would be the most fruitful source of litigation of any 'that can be thought of. . . . There would seem to be very good reason why this right of action should be denied,”—

and the court denied it.

By ch. 17 of the Laws of 1905 there was conferred upon the wife in express terms the right which was denied her in Duffies v. Duffies, supra. The prophecy of the court made in 1890 in respect to numberless actions which would be brought by wives on account of the loss of affection and society of husbands has not come true. Such actions are in this jurisdiction comparatively rare.

The “natural and unchangeable conditions” spoken of by the court in 1890 have since that-time undergone great change, and by ch. 529 of the Laws of 1921 (sec. 6.015, Stats.) it was declared:

“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, and in 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 statúte.”

We had occasion to consider this statute in First Wis. Nat. Bank v. John (1922), 179 Wis. 117, 190 N. W. 822, and we need not repeat here what was said there. It is urged, however, that this amendment was intended to carry into effect the suffrage amendment and to place men and women on an equality before the law; that it was not aimed at and did not affect, either expressly or impliedly, marriage or marriage relationship; that it applies generally to all women whether married or single, and that numerous incidents derived from the common-law marriage still exist. It was not necessary to refer to freedom of contract, holding and conveying property, care and custody of children in order to carry the suffrage amendment into effect. This language related only to married women. The feme sole has always had freedom of contract, right to hold and convey property, and she certainly was not concerned with the care and custody of children. It seems too clear for argument that sec. 6.015 further modified the rights of husband and wife as they existed at common law and that it was designed to place them on a basis of equality before the law not only in the particulars mentioned but “in all other respects.”

Questions of public policy are primarily for the legislature. In the face of legislative history relating to property rights and status of married women we find no ground for saying that although the act of 1881 conferred upon married women rights which they did not enjoy at common law, the conferring of the right claimed in this case, that is, the right of a married woman to maintain an action for an injury to her person against her husband, was not in the mind of the legislature. As was said ,by this court in Carney v. Gleissner, 62 Wis. 493, 22 N. W. 735, speaking of the power conferred by the statute authorizing her to sue and be sued and holding that a husband might maintain an action of replevin against the wife, “The husband is nowhere excepted from the operation of the statute, and we have no right to except him.” When this court declared in Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, that conferring upon the wife the.right to maintain an action for alienation of her husband’s affections would contravene sound public policy, the legislature answered by conferring upon the wife that right in express terms. We all have more or less conscious ideals and cherished, concepts relating to the unity of the family and the sanctity óf the family relation. We regard with disfavor the gradual disappearance of these ideals in the community at large. As a matter of fact, however, the family relation is not disturbed by the enactment of statutes conferring rights upon married women. It is only when the ideal family relation has •for some reason been disrupted that rights under the statute are asserted. We must presume that the legislature meant exactly what it said, and when it said a married woman might bring an action as if she were a feme sole it meant bring an action against any person who did injury to her person or character even though that person were her husband; otherwise there was a limitation upon her rights which she would have had as a feme sole. Nor is the conferring of such a right upon married women so out of harmony with the declared policy of the state' as to lead necessarily. to the conclusion that the legislature did not have that particular situation in contemplation.

The third proposition urged against so construing the statute as to give a wife a right of action against her husband for injury to her person or character is in reality a restatement of the second proposition in other terms. It may not be improper to observe that while there are many persons, particularly those of the older generation, who are genuinely alarmed q.t the statutory modification of the family status as it existed at common law, there are an equal if not a greater number who see in the emancipation' of married women a necessary genuine social advance. We are not required to determine which view is correct. It is no doubt within the power of the legislature, guided by an enlightened sense of public need, to make such modifications of the marital status as it believes to be in the interest of the general welfare. When the legislative purpose has been declared in plain and unmistakable language it is not within the province of the court to interpose contrary views of what the public need demands, although as individuals the members of the court may hold convictions opposed to those of the legislature. It is only when the situation is such that the court is convinced that a particular ' résult was not in contemplation of the legislature, and that had it been the statute would not have been enacted, that the court may properly supply limitations not found in the' language of the statute.

As already indicated, we find the rule of construction laid down in this state to be that of a liberal interpretation of statutes belonging to the class under consideration, repeated declarations of public, policy which accord with the language of the státute in its natural and ordinary meaning, and we find no consideration of public policy which leads us to the conclusion that the statute is not in accord with sound public policy.

We are well aware that a different result has been arrived at in other jurisdictions. See Oken v. Oken, 44 R. I. 291, 117 Atl. 357; Maine v. James Maine & Sons Co. 198 Iowa, 1278, 201 N. W. 20; Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287; Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S. W. 628, L. R. A. 1916 B, 881; Peters v. Peters, 156 Cal. 32, 103 Pac. 219; Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111; Sckultz v. Schultz, 89 N. Y. 644; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047.

On the other hand; the conclusion which we reach is sustained by the following cases among others: Brown v. Brown (1914), 88 Conn. 42, 89 Atl. 889; Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S. W. 460; Gilman v. Gilman (1915), 78 N. H. 4, 95 Atl. 657; Prosser v. Prosser, 114 S. C. 45, 102 S. E. 787; Roberts v. Roberts, 185 N. C. 566, 118 S. E. 9, 29 A. L. R. 1479; Harris v. Harris, 211 Ala. 222, 100 South. 333; Bushnell v. Bushnett (1925), 103 Conn. 583, 131 Atl. 432.

Because this court has adopted the policy of following, in ordinary cases at least, the rulings of the United States supreme court in cases where there is no decision in the state of Wisconsin applicable to the' situation (Topolewski v. Plankinton P. Co. 143 Wis. 52, 126 N. W. 554), we shall consider Thompson v. Thompson, supra, and to this may be added the further reason that it is typical of the decisions upon this point in other jurisdictions holding a contrary view. The statute of the District of Columbia contained the following provision:

“Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue separately upon their contracts, and also to sue separately for the recovery, security or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried.”

The wife began an action against her husband to recover damages for assault and battery, and it was contended by the plaintiff that under this statute the common-law relation of husband and wife was so far modified as to give her an action against him for tort committed by him upon her person or property. The court said:

“Married women are authorized "to sue separately for ‘the recovery, security or protection óf their property, and for torts committed against her as fully and freely as if she were unmarried.’ 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. . . .

“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. the 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. . . .

“We do not believe it was the intention of Congress, in the enactment of the District of Columbia Code, to revolutionize the law governing the relation of husband and wife as between themselves.”

By the decision in this case the supreme court of the United States held that the effect of the enactment was merely to change the remedy which the wife already had at common law and to make it unnecessary for the husband to join in actions brought for torts committed against her. We shall certainly not argue that the statute of the District of Columbia is not subject to that construction, although we feel obliged to say with due deference that it is susceptible of a different construction. If, as is held in Thompson v. Thompson, supra, the statute did no more than make it unnecessary for the husband to be joined as a party in an action by the wife for torts committed against her, the statute is not as broad in its terms as was the amendment of 1881. At common law the wife could not sue alone for injuries to her person or property. She was obliged to join her husband, and if a judgment was recovered the proceeds of the judgment belonged to the husband, not to the wife. The amendment of 1881, now a part' of sec. 287.07, provided, on the other hand, that she could maintain an action for injuries to her person or character in her own name and that any judgment recovered in such an action should be the separate property and estate of the married woman and not of her husb'and. Thompson v. Thompson, supra, does not in terms declare to whom the recovery belongs where a wife in her own name brings suit to recover damages for injury to her person or character. If under the statute of the District of Columbia it should be held that the recovery belongs to the wife, then the statute did something more than to give her the right to sue separately, the reasoning of the court fails, and an exception is created by the court on grounds of public policy.

In Shanahan v. Madison, 57 Wis. 276, 280, 15 N. W. 154, it was observed, in speaking of the amendment of 1881:

“As we construe the amendment, it was not to give to the wife the right to recover in her ow-n name what she could previously recover in the name of herself and husband, but to give to her, the same as though she were sole, a right of action which she never before possessed, and to make the judgment recovered therein, which, except for the amendment, would have belonged to the husband, her ‘separate property and estate.’ ” ;

Comparing the right of the wife at common law (which apparently was no more than the capacity to sustain the injury, because she could not recover damages on account of it, and when the damages were recovered in an action in which her husband joined the damages belonged to the husband and not to the wife) with the conceded right of the wife to recover under our statutes for injuries in a suit brought in her own name, the proceeds of the recovery belonging to her separate estate, the reasoning of the supreme court of the United States is not applicable to the amendment of 1881.

In the state of Wisconsin, where over and over again for more than fifty years the legislature has in the clearest and most explicit terms removed disabilities of the wife which existed at common law, conferred upon her rights of action against the husband which were totally unknown to the common law, and where it is held that a husband may maintain an action of replevin against the wife, or that the wife may sue the husband with respect to her property, we find no likelihood of the social order being shattered by holding that she has a right of action for injuries done to her person and character as well as to her property whether committed by the husband or third parties. As was observed by the supreme court of the state of Connecticut in Brown v. Brown, 88 Conn. 42, 89 Atl. 889, it is not until the domestic tranquillity has been disturbed and the family relation has broken down and the parties to the marital relation have lost all affection and respect for each other that resort will be had to courts. The court said:

“No greater public inconvenience and scandal can thus arise than would arise if they were left to answer one assault with another and one slander with another slander, until the public peace is broken and the criminal law invoked against them. We find nothing to warrant the. claim that public policy is opposed to the existence of a cause of action for a personal tort in favor of husband or wife against the other spouse where the wife’s identity is not merged in that of her husband.”

If the forebodings of those who see in the modification of the marital status consequences destructive of our social institutions are realized in experience, the matter is within the control of the legislature, and we may well assume that succeeding generations will be as wise as we of this or preceding generations. It is not necessary for us to determine what remains of the marital status as it existed at common law. It must be true .that when a man and woman marry, their reciprocal rights and duties are different toward each other than toward third persons. . The extent of the difference under the existing law must be developed by time and experience. The undesirable consequences of permitting the wife to sue for. alienation of affections and loss of the society of her husband pointed out by the court in Duffies v. Duffies, supra, did not follow the conferring of that right upon the wife, and it is quite as probable that those considerations .which are urged in support of a narrower construction of this statute.than that which.we have given it are likewise not well founded. In any event, as the supreme court of the United States has held, the matter of policy is in the first instance for the legislature and not for the court.

In view of these and .other considerations, we hold that under the amendment of 1881 a wife may bring an action against her husband for injuries to her person or character the same as she might do as if she were a feme sole. The cross-complaint therefore stated a cause of action against the husband and the demurrer should have been overruled.

•In view of the conclusion which we have reached, it will not be necessary for us to consider other questions raised in the briefs.

By the Court. — The order ..appealed from is reversed, and the cause is remanded with directions to overrule the demurrer and for further proceedings according to law.

The following opinion was filed June 21, 1926 :