Coke, one of our oldest and greatest law writers, said that "reason is the life of the law," and I have been unable to either approve the reasons given for denying the wife the right to sue her husband or to find any sufficient reason why she may not do so when necessary for her protection. In entering upon a discussion, it is well to remember that the question is of very great importance to every woman who is, or may become, a wife or mother — a highly cherished portion of our people. It may further be well to call attention to the fact that the finding of the jury in this case, that the husband was guilty of insupportable outrages and cruelties in violation of his marital obligation, is not questioned, and that the rule, as applied by the majority, admits of no exception. In other words, the rule, as announced, is not based on the amount or extent of the husband's cruelty, but applies to every class of outrage or degree of cruelty, including maiming, blinding, or otherwise injuring the wife for life. I wish to premise one other thought, and that is that in view of the importance and far-reaching effect of the determination, and of the present condition of our laws and people, I have felt free to express my views, notwithstanding the fact that no case such as this has been found. The courts will poorly perform their functions if they deny a patient hearing and a fearless determination of any demand for relief on the ground that the demand is out of the ordinary, and that no court before has entertained a like plea. To deny relief on such grounds is to deny all change or progress in our laws.
Our Constitution, art. 1, § 19, declares that:
"No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."
Section 13 of the same article provides, among other things that:
"All courts shall be open; and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."
In a very early case (Morton v. Gordon, Dallam, Dig. 396) our Supreme Court, in construing a constitutional provision, gave (quoting from the headnotes) the following rules of construction:
"It is a rule of constitutional construction, that where the grant of power inures solely to the benefit of the grantor (the people), it is to receive a benign and liberal construction.
"Another rule of constitutional construction is, that where the power granted is in general terms, it is to be construed as coextensive with the terms, unless some clear restriction upon it be deducible from the context.
"It is sufficient, however, if the restriction arise by necessary implication. But it is not sufficient to show that there was, or might have been, a sound or probable motive to restrict it. A restriction founded upon conjecture is wholly inadmissible."
In 6 R.C.L. p. 285, § 272, under the head of "Access to Courts," it is said:
"Among the privileges and immunities of citizenship are included the right of access to court for the purpose of bringing and maintaining actions; and this includes the right to employ the usual remedies for the enforcement of personal rights in actions of every kind — a right which cannot be abrogated or even suspended. It has been said that the right to sue a defendant in the courts is one of the highest and most essential privileges of citizenship."
In 12 C.J. p. 1287, § 1100, it is said:
"Among the most highly prized and hardly won of the rights conferred by Magna Charta were those guaranteed by the brief but expressive clause: `We will sell to no man, we will *Page 539 not deny to any man, either justice or right.' In a large number of state Constitutions provisions of like import have been inserted to the effect that the courts shall be open to every person; that each individual shall have a prompt and certain remedy by due course of law for injuries which he may receive in his person, property or reputation; that he shall obtain such remedy freely without being obliged to purchase it; and that justice shall be administered impartially and without prejudice."
The same author again says in section 1101 that:
"The guarantee as to open courts opens to every subject equal access to courts established by the state."
In U.S. v. New Orleans (C. C.) 17 F. 490, the court in construing a provision similar to that in section 13, art. 1, of our Constitution, quoted above, had this to say:
"I understand this provision to be applicable to the redress for all wrongs done to person or property, and to that extent to give to the redress for wrongs a coequal if not paramount security to that guarantee for the enforcement of contracts. I understand this provision to ordain, in behalf of those who, like the relator, are seeking reparation for injury done to themselves or their estate, not only that the courts shall be always open, not only that the courts shall have jurisdiction, not only that the suit ors shall have a speedy and just trial, no? only that there shall be awarded due process but in addition to all there is solemnly ordained and guaranteed a remedy entirely adequate."
In Byers v. Company, 84 Ohio St. 408, 95 N.E. 920,38 L.R.A. (N.S.) 913, the Supreme Court of Ohio, quoting from a Michigan case, says:
"It is not competent for the Legislature to give one class of citizens legal exemption for wrongs not granted to others; and it is not competent to authorize any person, natural or artificial, to do wrong to others without answering fully for the wrong."
In section 430 of Speer's Marital Rights, one of our own law writers of acknowledged standing and ability has said:
"The law recognizes the wife's right to sue and her liability to be sued. The writer does not like the expression found in some of the cases that the `law confers' upon the wife the power to litigate. He prefers to think the courts of the country are at all times open to every citizen and that this right to have one's grievance thus determined should not be denied to the humblest, whether that person be male or female, married or unmarried, and that this right exists in all instances, where there is a wrong to be redressed. It is not the business of statutes to `confer' the right on any one, but only to regulate it. He prefers to believe that the section of the Bill of Rights (Const. art. 1, § 13), which declares that `all courts shall be open; and every person for an injury done him, in his lands, goods, person or reputation shall have remedy by due course of law,' includes women, notwithstanding they may be married. The law no more `confers' upon a married woman the right to appear in court than it confers upon a married man the right."
Upon what sustainable ground, then, must it be said that the appellee in this case shall be denied relief, and the verdict and judgment of the trial court in her favor be reversed?
As against all persons, except the husband, the majority concedes that the damages awarded to appellee constitutes her separate property, and it was expressly so decided by our Supreme Court in the case of Nickerson v. Nickerson, 60 Tex. 281. In that case Mrs. Nickerson sued her husband and one Matson for damages for a tort committed by Matson and plaintiff's husband jointly. It was held that the damages awarded to the wife in the action was not only property, but the separate property of the wife and recoverable against Matson. Of such, by our pressent statutes (Rev. Statutes, art. 4621), the wife, during marriage, has been given "the sole management, control and disposition." The case of Nickerson v. Nickerson, in argument before us, seemed to be the main reliance of appellant in opposition to the judgment, but it will be seen by a consideration of the opinion that that case, even if sustainable in reason, is distinguishable from the one before us, in that there the action was grounded solely upon a tort, whereas here the action, under the allegations of the plaintiff's petition, is for a breach of the marriage contract accompanied with circumstances of aggravation. Indeed, the damages awarded by the judgment below were not given as compensation for mental pain or bodily injuries, but, on the contrary, because of an absolute repudiation and breach of marital obligations resulting in the utter loss of the principal benefits of a normal married life. The issue of a breach of contract could not have been involved in the case of Nickerson v. Nickerson, for Matson, against whom the judgment was affirmed, was not a party to the marriage contract between Mrs. Nickerson and her husband. But it is argued, elaborately and with much force, that marriage is a "status" and not a contract, and in support of this contention the cases of Grigsby v. Reib,105 Tex. 597, 153 S.W. 1124, L.R.A. 1915E, 1, Ann.Cas. 1915C, 1011, and Maynard v. Hill, 125 U.S. 211, 8 S. Ct. 723, 31 L. Ed. 654, and other authorities containing similar expressions on the subject, are cited.
It is, of course, not easy to reconcile everything said in the cases. To properly understand a decision, we must interpret what is said in the light of the particular circumstances of that case. The utterances of a court, in order to be binding and authoritative, must be asserted in the determination of some question necessarily involved in the case. Where, in the decision of the cause, an opinion is expressed which is not *Page 540 necessary to the decision of the cause, it is obiter dicta. See Ballard v. Carmichael, 83 Tex. 355, 18 S.W. 734; American Surety Co. v. San Antonio Loan Trust Co. (Tex.Civ.App.) 98 S.W. 387; Johnson v. Harrison, 48 Tex. 257; Creamer v. State, 34 Tex. 173; Field v. State,34 Tex. 39; Edwards v. Brown, 68 Tex. 329, 4 S.W. 380, 5 S.W. 87.
In 18 R.C.L. p. 383, the following is said:
"Marriage, in its origin, is a contract of natural law, though in most countries acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. In all civilized communities it is in its creation contractual, in that it requires capacity and consent on the part of those who enter into the relation, and, so far as its validity in law is concerned, it is universally treated as a civil contract.
"Marriage is something more than an ordinary civil contract, for it creates a social status or relation between the contracting parties, in which not only they but the state as well is interested, and involves a personal union of those participating in it of a character unknown to any other human relation, and having more to do with the morals and civilization of a people than any other institution. Some courts have gone to the extent of holding that marriage is not a contract but a status created by mutual consent of one man and one woman and that the rights and obligations of the parties are not contractual, but are fixed, changed or dissolved by law. According to some of these decisions the main purpose of calling marriage a civil contract is to negative the idea that it is an ecclesiastical sacrament, or that in the eye of the law it is controlled by the mandates or dogmas, or subject to the observance of the rituals or regulations, of any particular churches or sects. The theory that marriage is a civil status has, however, been seriously questioned in some jurisdictions. But this question is merely academic. The courts may define and characterize the relation as best suits their fancy, but its validity and effect are tested by the same general principles regardless of the nomenclature that may be adopted."
Numerous authorities are cited by the author in support of the text quoted, and other authorities might also be cited to the effect that marriage is constituted by a civil contract between a man and woman of marriageable age and competency. The obligations of one to the other are within the common knowledge of us all. In our civil ceremony, the promises are mutual, including promises on the part of the husband to love, cherish, and support his wife. That the mutual promises or contract of marriage between a man and woman, when viewed in their individual relations and apart from the interest of the state therein, contain every element of an enforceable agreement, cannot be denied, and the fact that the state in its own interests superimposes a relation to the public that has been termed a status, imposing duties and obligations to the state, does not render the agreement of the individuals less a contract as between themselves, and this distinction, as it seems to me, is to be observed in considering the cases of Grigsby v. Reib and Maynard v. Hill, supra.
In the Grigsby Case, the woman was claiming property which she could only recover as a married woman, under our statutes of descent and distribution, and the court was discussing and opposing that line of authorities which held that marriage could be constituted by a mere agreement without living and cohabiting together, and it was in this connection that Judge Brown said that marriage was a status and could not be created by agreement.
In the case of Maynard v. Hill, a divorced wife was seeking to recover an interest in certain lands acquired by the husband after the divorce, and it was contended in behalf of the wife that the divorce was invalid for the reason that no cause therefor existed, and that it was obtained without the knowledge of the wife. The lands in controversy and the suit was in Washington territory, while the decree of divorce had been procured in the territory of Oregon, and the subject discussed and determined was the validity of the legislative act of Oregon authorizing the decree. The court, in discussing the question, among other things, said, however, that:
"If the act declaring the divorce should attempt to interfere with rights of property vested in either party, a different question would be presented."
In both of those cases the rights asserted and denied were not based upon alleged breaches of a marriage contract, but, on the contrary, on allegations of such a contract fully executed, and for rights wholly dependent on statutes alone applicable to married persons.
In this connection, I think it is to be further observed that the marriage contract and the marriage status is to he separated and distinguished in that the contract or agreement alone will not constitute the status. This is demonstrable by the decision in the case of Grigsby v. Reib. It was there held that a mere agreement to marry without cohabiting and living together as man and wife did not constitute the status of marriage, and it is common knowledge that the mutual agreement and promises of the parties in a marriage ceremony precedes the birth, so to speak, of the status. It takes the final pronouncement of the officiating authority or a living and cohabiting together to constitute the unified relation and obligation of the parties to the state. We have numerous cases upholding suits for damages because of a breach of the promise of marriage, and it does not seem easy to assign any very satisfactory reason why the principles adopted in those cases should not apply in this case. It is insisted, however, that the present suit is prohibited by the *Page 541 common law and article 5492, Rev. Statutes, is invoked in support of the proposition. This statute reads:
"The common law of England, so far as it is not inconsistent with the Constitution and laws of this state, shall, together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature."
The origin of this statute seems to have been a provision of the Constitution of the republic of Texas, adopted in 1836, and an act of Congress of the republic, passed January 20, 1840. Article 5492 is substantially the same as the act of Congress, except that it was the act of the state instead of the Congress. The constitutional provision of the republic, by virtue of which the act of January 20, 1840, was passed, reads as follows:
"The Congress shall, as early as practicable, introduce by statute the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision." Const. art. 4, § 13.
It will be observed that the command of the Constitution of the republic that the common law should be the rule of decision is limited to criminal cases, thus inferentially denying to the Congress the power to make it the rule of decision in other cases. So that, if we give to article 5492 the legal effect of the act of 1840, it is properly to be limited to criminal cases and as having no application to civil suits such as the one before us. Moreover, I fail to find in the Constitution of 1876, which constitutes the present reliance of our people any express declaration or provision to the effect that the common law of England shall be adopted or constitute the rule of decision. This possibly is significant, in view of the general expressions in section 48, art. 16, of the Constitution, that "all laws and parts of laws now in force in the state of Texas, which are not repugnant to the Constitution of the United States or to this Constitution, shall continue and remain in force as the laws of this state, until they expire by their own limitation or shall be amended or repealed by the Legislature," thus affording a presumption that in adopting article 5452 it was intended that it should be given its proper construction under the Constitution of the republic. But, however this may be, and regardless of this suggestion, it is clear, under the terms of article 5492, that the common law of England is not the "rule of decision" when inconsistent with the Constitution and laws of this state. In 13 R.C.L. p. 1394, § 443, it is said:
"At common law no cause of action arose in favor of either husband or wife by reason of any injury to the person or character of one committed by the other, for instance, libel or slander. This doctrine of nonliability is founded not on the inability of the one spouse to sue the other, but on the principle that husband and wife are one person in law."
Chief Justice Hemphill in Black v. Bryan, 18 Tex. 461, said:
"At common law the personal existence of a married woman is merged, for the most part, in that of her husband. Her disability is almost complete. Her personal property, by marriage, vests in the husband; and the right of disposition of her real property, and even taking its fruits, is taken away from her."
The increase in knowledge and the spread of individual freedom has in a large measure stricken from woman fetters forged during the earlier years of our civilization and the fiction of unity in law of the husband and wife has long since been abrogated, and it is a canon of construction that, when the reason for a rule fails, the rule itself must fail. It is historically true that prior to the independence of Texas she was a province of Mexico, governed by the civil laws of Spain, and the rights of the wife were not restricted, as in the common law; on the contrary, by the acts of the republic and by numerous provisions of the Constitution and legislative acts after the formation of Texas into a state, a wife's rights were greatly enlarged.
In George v. Stevens, 31 Tex. 670, our Supreme Court said:
"When the Congress of the Republic of Texas, through the influence of a disciple of Coke, passed an act introducing the common law of England to be the rule of decision of the republic, it was fortunate for the female branch of the human family that there were in that legislative assembly those who were unwilling that wives should occupy the station assigned them by the common law of England. So discordant is the common law of England with the statutes declaring marital rights — so utterly inconsistent is that law, which merges the political and judicial existence of a woman in her husband on marriage, with the laws that concede to a wife her separate rights of property and person, and a standing in the judicial tribunals to sue for and defend them — that a system of jurisprudence based upon a mixture of these incongruities cannot be otherwise than discrepant and incongruous."
In Barkley v. Dumke, 99 Tex. 150, 87 S.W. 1147, our Supreme Court, in an opinion by Chief Justice Gaines, discussing the applicability of the common law to marital rights, said:
"Perhaps, under the strict rules of common law, we should be constrained to rule that the marriage of defendant in error with Wood was absolutely void to all intents and purposes, and therefore to hold the conveyance from Wood and the putative wife also void. But we are of the opinion that the common-law rule does not apply to this case. The title of the act of January 20, 1840, entitled `An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the *Page 542 marital rights of parties,' indicates that the rights of married persons were to be defined by statute, and not to be governed by the rules of the common law. The provisions of the act with reference to married persons are so inconsistent with the rules of the common law as to show an intention to maintain in reference to marital rights a radically different system. The fact that these provisions were incorporated in the act which adopted the common law is of itself significant of the purpose of the Legislature not to apply the rules of the common law as to the property rights of husband and wife. In this connection it is notable also that the statutory rules which were adopted are taken in the main from the Spanish law, which then prevailed in the republic. So striking is this fact as to justify Chief Justice Hemphill in saying, in Burr v. Wilson, 18 Tex. 370: `Our laws on marital rights are in substance but a continuation of the rules of Spanish jurisprudence on the same subject-matter;' and again, in Bradshaw v. Mayfield, 18 Tex. 29: `But the common law is not, and never has been, of force in this state on the subject of marital rights.'"
Even in the absence of statutory regulations to the contrary, it has been held, notwithstanding the statute under consideration that the common law has been adopted only in so far as it is adapted to our changed conditions and circumstances. See Clarendon Land, etc., Co. v. McClelland, 86 Tex. 179, 185, 23 S.W. 576. 1100, 22 L.R.A. 105; Davis v. Davis, 70 Tex. 123, 7 S.W. 826; Connor v. Mackey, 20 Tex. 748; Winn v. Ft. W. R. G. Ry. Co., 12 Tex. Civ. App. 198, 33 S.W. 593; Cargill v. Kountze, 86 Tex. 386, 22 S.W. 1015, 25 S.W. 13, 24 L.R.A. 183, 40 Am. St. Rep. 853.
No one can doubt that great changes have been made generally in the condition and legal status of woman from that existing in the days of the common law. But particularly, by express statutory enactment beginning at an early day, has there been a change in a wife's legal right to own property and have an entity independent from that of her husband, so much so as to impel our Supreme Court, in Barkley v. Dumke and other cases cited above, to declare that as to marital rights the common law is not and never has been of force in this state. The conclusions so stated are emphasized by numerous liberalizing legislative enactments regulating marital rights, both before and after the discussion in Black v. Bryan, George v. Stevens, Nickerson v. Nickerson, and Barkley v. Dumke, hereinbefore cited. For legislative acts so showing, see Rev. Statutes, arts. 4621, 4621a, 4622, 4624, and numerous other articles, such as article 1839, providing when the wife may sue for the recovery of her separate property; article 1840, directing how she shall be sued upon contracts by her for necessaries and for expenses incurred by her for the benefit of her separate property; article 4625, directing the execution of judgments against the spouses; article 4626, providing a summary method to compel the husband to support the wife from the proceeds of lands she may have; article 4627, declaring the liability of the community property; article 4628, declaring females under 21 years of age to be emancipated by marriage; article 4629, definding the rights of persons married elsewhere; articles 4629a to 4629d, providing for the removal of the disabilities of coverture from married women for mercantile and trading purposes. So that it is thus seen that our Legislature has entered and occupied the entire field of marital regulations from which it must be implied that it was and is the legislative intent to provide for all needful regulations to the exclusion of all laws and rules of an extraterritorial or foreign power.
In concluding this branch of the subject it seems to me that the separate rights of property, both real and personal, given to the wife by article 4621, Rev. Statutes, together with absolute control thereof, independent of her husband, is inconsistent with the contention that by virtue of article 5492 she must be denied the right asserted in this case. As said by Chief Justice Phillips in Spann v. City, 111 Tex. 350,235 S.W. 513, 19 A.L.R. 1387:
"Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right. Therefore the law which forbids the use of a certain kind of property, strips it of an essential attribute and in actual result proscribes its ownership. * * *
"To secure their property was one of the great ends for which men entered into society. The right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody is a natural right. It does not owe its origin to Constitutions. It existed before them. It is a part of the citizen's natural liberty — an expression of his freedom, guaranteed as inviolate by every American bill of rights. It is not a right, therefore, over which the police power is paramount. Like every other fundamental liberty, it is a right to which the police power is subordinate.
"It is a right which takes into account the equal rights of others, for it is qualified by the obligation that the use of the property shall not be to the prejudice of others. But if subject alone to that qualification the citizen is not free to use his lands and his goods as he chooses, it is difficult to perceive wherein his right of property has any existence.
"The ancient and established maxims of Anglo-Saxon law, which protect these fundamental rights in the use, enjoyment and disposal of private property, are but the outgrowth of the long and arduous experience of mankind. They embody a painful, tragic *Page 543 history — the record of the struggle against tyranny, the overseership of prefects and the overlordship of kings and nobles, when nothing so well bespoke the serfdom of the subject as his incapability to own property. They proclaim the freedom of men from those odious despotisms, their liberty to earn and possess their own, to deal with it, to use it and dispose of it, not at the behest of a master, but in the manner that befits free men.
"Laws are seldom wiser than the experience of mankind. These great maxims, which are but the reflection of that experience, may be better trusted to safeguard the interests of mankind than experimental doctrines whose inevitable end will be the subversion of all private right."
Mr. Justice Greenwood, in Whitney Hardware Co. v. McMahan, 111 Tex. 242,231 S.W. 694, had this to say:
"As incidents to the wife's power of exclusive management and control of her separate property and of the specified portions of the community, she became vested with all such contractual power relative to same, as is requisite to make her power effectual. * * *"
Again it is insisted that suits by the wife against the husband are against public policy and hence to be denied. As will be seen by the definitions of the term as given in Words and Phrases, vol. 6, p. 5813, "Public policy" is defined as a "variable quality" — a term of vague and uncertain meaning. Mr. Williston in his work on contracts (volume 3, § 1629) cites an English case in which it is said that "the question of public policy may well give rise to a difference of judicial opinion." Public policy, it was said by Burroughs, J., in Richardson v. Mellish, "is a very unruly horse, and when you once get astride it, you never know where it will carry you." In the preceding sections it is said:
"If there is one thing more than any other which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that contracts, when entered into freely and voluntarily, shall be held good and shall be enforced by courts of justice."
Certainly then a case, not expressly forbidden by law, ought to very clearly be against public morals or the public good before relief otherwise recoverable should be denied.
Numerous cases may be found where suits by the wife against the husband, and the husband against the wife, have been entertained by the courts. For instance, the case of Newman v. Newman, by the Court of Civil Appeals of the First Judicial District, 86 S.W. 635, was one in which Geo. W. Newman, the husband, brought suit against Sarah Jane Newman to procure the cancellation of two deeds, by their terms conveying certain lands to her in her separate right. In disposing of the case, among other things, the court said:
"It seems now to be well settled in this state that a husband may maintain a suit against his wife to settle property rights." citing McCartney v. McCartney, 93 Tex. 359, 55 S.W. 310.
The latter case is one by our Supreme Court in which the husband sued his wife, who was a lunatic confined in an asylum, to cancel a certain deed conveying to her certain lands on the ground that the deed had never been delivered by him and was never intended to take effect, etc. The case was entertained and disposed of without any intimation that it was not cognizable by the court because of the fact that the parties were husband and wife and undivorced. The case of Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S.W. 975, was one in which Maggie Perrill, the wife, sued her undivorced husband and P. F. Fox, partners doing business under the firm name of "Perrill Fox," to recover the amount due upon a promissory note executed by them to W. M. Perrill as her trustee. She also caused a writ of attachment to issue and to be levied upon a stock of goods belonging to the defendants. This suit also was entertained and disposed of by our Supreme Court, upholding the right of the wife to sue her husband.
In Heintz v. Heintz, by the Dallas Court of Civil Appeals,56 Tex. Civ. App. 403, 120 S.W. 941, the wife sued her husband for divorce and custody of their minor child and to have a resulting trust adjudged in her favor in land held by him, paid for out of her separate funds, and for judgment for moneys belonging to her separate estate alleged to have been wrongfully converted by him. It appeared that at the time of the trial the parties lived in the same house, occupying separate rooms and that neither contributed to the other's welfare and that the separation between the parties was permanent. The court in disposing of the case held, in effect, that, independent of the wife's suit for divorce and custody of the child, she could sue her husband to recover moneys belonging to her separate estate, wrongfully conveyed by her husband and also to have a resulting trust declared in her favor in land held by him in his own name, but paid for, in whole or in part, out of the wife's separate funds.
In Shaw v. Shaw, by the Galveston Court of Civil Appeals,50 Tex. Civ. App. 363, 111 S.W. 223, Mary G. Shaw sued her husband, B. W. Shaw, to recover property and to enjoin and restrain him from disposing of the same or converting the proceeds thereof to his own use. This suit also was entertained and disposed of without reference to the marital relation of the parties.
In Dority v. Dority, 96 Tex. 215, 71 S.W. 950, 60 L.R.A. 941, our Supreme Court sustained the right of a wife to sue her husband in protection of her separate property and awarded an injunction against him to *Page 544 prevent his interfering therewith. In disposing of the case the court, among other things, said:
"The question whether or not, at the suit of a married woman other than for divorce, a court may restrain a husband from exercising over his wife's separate property the control expressly given to him by statute during marriage, is one of grave importance and of considerable difficulty. At common law a wife could not sue her husband. As a result of our statutes recognizing the separate existence of married women and conferring upon them capacity to own property, it is settled, in this state, that causes of action in their favor, incidental to their ownership, may arise and be asserted in the courts against their husbands."
In the case of Ryan v. Ryan, 61 Tex. 473, it appears that Josephine Ryan sued her husband, A. P. Ryan, living together as husband and wife, upon a debt of the husband created during the existence of the marriage relation and had an attachment levied on the community property of herself and her husband. The husband made no appearance, but certain creditors of his intervened, alleging that the plaintiff and defendant were husband and wife; that the debts of the interveners were community debts, and the property attached by the wife community property; and, hence, the plaintiffs levy of attachment should be subordinated to the attachment of the interveners. The trial court charged the jury:
"That plaintiff and A. P. Ryan, being husband and wife at the date the suit was brought, she could not by her attachment of community property acquire paramount rights over community creditors, and to find for interveners."
Judgment for the intervening creditors was accordingly entered. But on appeal our Supreme Court held that the trial court erred in giving the charge quoted, saying, among other things, that:
"Under the liberal provisions of our Constitution and laws for the protection and preservation of the separate property and rights of married women, we are of opinion that the wife can maintain, in her own name, her action in the case under consideration. We also believe that she would be entitled, in a proper case, to the benefit of writs of attachment, sequestration, injunction, or any like writ, to which any other creditor would be entitled, in order to protect and preserve his rights."
In Montgomery v. Montgomery, 142 Mo. App. 481, 127 S.W. 118, a suit by the wife against the husband on a contract binding him to treat her as a husband should treat his wife, it was held that the contract was not invalid and was enforceable and not contrary to public policy, quoting the following from the Supreme Court of Georgia:
"Judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy, and prejudice to the public interest must clearly appear before the court would be warranted in pronouncing a transaction void on this account. It is said that the power of courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt."
The opinion in the case of Montgomery v. Montgomery also cites with approval the case of Woodruff v. Woodruff, 121 Ky. 784, 90 S.W. 266,91 S.W. 265, where the wife had separated from her husband by reason of his mistreatment of her, and he, for the purpose of inducing her to return, agreed that if she would return, and should thereafter again be compelled to leave him by reason of mistreatment, she should receive $50 per month during the remainder of her natural life. The husband, having again mistreated her, she left him and brought suit upon the contract and it was upheld. In the course of the opinion, the court said:
"We can see no grounds upon which it can be maintained that a contract to do what the law would require done without a contract violates any public policy."
See, also, Hite v. Hite, 136 Ky. 529, 124 S.W. 815, where a similar contract was upheld by the same court, and the reasoning in the Woodruff Case approved.
The right of a wife to damages for injury to her person, such as was awarded to her in this case, is as clearly property belonging to her in her separate right as any other species of property, however acquired, and I can see no reason or policy for denying her the right to recover it in a suit against her husband on the ground of public policy that did not exist in the numerous cases above cited, wherein she has been accorded that right. It is said that suits such as this tend to arouse animosities and friction between the spouses and hence to destroy that degree of harmony and unity of purpose which it is to the interest of the state to guard and to foster; if so, the same must be said of that character of suits noted above. Suit by the wife to recover a piece of furniture, an article of clothing, or upon a promissory note belonging to her separate estate is as certainly productive of resentment on the part of the husband as a suit for the actual loss occasioned in this suit. There can be no consistency in holding one class of suits forbidden on the ground of public policy and the other not, and, when we consider the gentleness, devotion and fidelity generally possessed by the wife to her husband, home, and children, such disturbances on her part for mere gain will be, to say the least of it, very infrequent; while such a right accorded to her within the knowledge of the husband may operate even more strongly to restrain him *Page 545 from outrages and cruelties inflicted upon his wife, such as may easily be imagined, and such as is of not infrequent occurrence.
The outrages and cruelties inflicted by the husband upon the wife in this case may not have been of the most aggravated character, but they were of such a character as to render their living together insupportable, and to thus breach the marriage contract. It was so found by the verdict of the jury, and the verdict was approved by the court; and on this appeal appellant has not questioned these findings, so that the principle involved is the same as would be involved in a case of a more aggravated nature, and it seems insupportable to me that a rule should be adopted which would leave a wife without an adequate remedy where she had been, by some outrageous or cruel act on the part of the husband, compelled to flee from him, disabled for life and thus forever deprived of the benefits to which she was entitled by virtue of her marriage contract. I do not think it is an answer to say that the statutes have provided the remedy of divorce and empowered the judge to make such disposition of the property of the parties as will be just, for it may be that no scriptural ground for a divorce exists, and the wife, believing in the announcement, "Let no man put asunder those whom God hath joined together," on conscientious grounds, or because of a tenet of church, feels compelled to not sue for a divorce. Or, again, it may be, as indicated in this case, that the property over which the court may have jurisdiction is altogether the separate real property of the husband, and while the court would have the power to make such disposition thereof as would be sufficient for the support of the wife, yet if the damage done her is her separate property, as expressly held in Nickerson v. Nickerson, supra, it would seem that in right she should be entitled to recover the entire damage in solido and be able to transmit it to her descendants or heirs, as in the case of any other property. Nor is it an answer to say that the husband may be punished criminally for acts of cruelty committed upon the wife, for the conviction of the husband affords the wife no compensation; it can only feed her emotional nature, such as pity or a feeling of revenge. It is suggested that the question of permitting the wife to sue the husband in cases such as this is one for the determination of the lawmaking power and not the courts. The answer is that in so far as legislative sanction is necessary it has already been given, as in other cases, by necessary implication from the enactments giving the wife the exclusive management and control of her separate property.
I am not unmindful of the force of the contrary views of the majority as presented In the able opinion of my esteemed associate, Mr. Justice DUNKLIN; nevertheless, with the vision in mind of the wives and mothers of men as I know them, I have resolved in their favor whatever of doubt there may be, and will conclude by saying that, aside from a deep-seated conservatism and very natural tendency of the American bred lawyer to adhere to old standards, I have been unable to find any logical reason for the conclusion that appellee's case is not within the broad general terms of our constitutional guaranties, or that, in such cases, relief, in this day of enlarged recognition of woman's marital rights, should be denied by mere inferences or the pronouncements of law-writers of a different age founded on dissimilar circumstances and different laws.