At common law actions in tort between husband and wife were impossible. A rule of parties was sufficient to prevent them during coverture. A wife had no procedural existence apart from her husband. This difficulty as to parties does not exist under our code. Section 89-504, R.S. 1931, provides that when a married woman is a party, it shall not be necessary to join her husband with her except where that would be necessary without reference to the fact of marriage. Section 69-103, of the Married Women's Act, has the same effect according to the view expressed by Judge Riner. I think this section has a broader significance than Judge Riner is willing to give it, but at this point I am assuming that his view is correct.
Before 1876, there seem to have been no such actions in England, and there was some doubt whether there was any reason, besides the procedural rule, to prevent them. In that year it became necessary to decide the question in a case brought by a divorced wife against her former husband for beating her before the divorce. Phillips v. Barnet, L.R. 1. Q.B.D. 436. It was held that the action did not lie. It has since been generally conceded that the common law reason for the wife's disability to sue her husband in tort was stated correctly in that case by Justice Blackburn, a great common law judge. I quote from his judgment:
"I was at first inclined to think * * * that the reason why a wife could not sue her husband was a difficulty as to parties; but I think that when one looks at the matter more closely, the objection to the action is not *Page 248 merely with regard to parties, but a requirement of the law founded upon the principle that husband and wife are one person."
Here the Justice cited authorities, including Coke's Institutes and Comyns' Digest, explaining common law restrictions on property transactions between husband and wife. He then continued:
"These authorities show that the objection to the action is, not because it is one in which husband and wife ought to be joined, but because husband and wife cannot contract with or convey to each other . . . The reason, therefore, why the wife cannot sue the husband for beating her must be because they are one and the same person, and the same reason exists in criminal law, where a woman cannot be convicted of larceny though she has in fact carried away her husband's goods. Other instances might easily be given, all showing that the reason is not the technical one of parties, but because, being one person, one cannot sue the other."
We may safely accept this language as a sufficient statement of the reason (in addition to the difficulty in procedure) for the common law rule. I assume that the legislative assembly of 1869 was familiar with the common law, and realized that in passing the Married Women's Act they made fundamental changes. The act, as we said in Christensen v. McCann, 41 Wyo. 101, 111,282 P. 1061, is "a good example of the more liberal legislation releasing married women from the rigors of the common law." It established a new marital status that does not recognize the common law fiction that husband and wife are one person. The same legislative assembly declared that the common law of a general nature and not inapplicable shall be the rule of decision when not inconsistent with our laws. § 26-101, R.S. 1931. It is a maxim of the common law that when the reason of a rule ceases, the rule itself should cease. Naab v. Smith, 55 Wyo. 181, 189,97 P.2d 677. *Page 249
The Married Women's Act includes not only those provisions that make the wife a separate person for the purpose of acquiring, holding and transferring property, of contracting and incurring liabilities, of working and engaging in business for her separate benefit, but also the provision (section 69-103, mentioned above) that she "may, while married, sue and be sued in all matters having relation to her property, person or reputation, in the same manner as if she were sole." If this section stood alone, or if it were a part of the code of procedure, I should be inclined to hold with Judge Riner that it was intended only to overcome the common law difficulty as to parties. In my opinion, however, the section, as a part of the Married Women's Act, goes further than that. It first says that she may sue "in all matters having relation to her property, person or reputation," which I take to be a statement of the extent of her right. Then follow the words "in the same manner as if she were sole," which would seem to permit suits against her husband, since his relation to her is excluded by the hypothesis that for legal purposes she is single. See remarks of Lord Summer, Edwards v. Porter, (1925) A.C. 1, 41.
If I am right in regard to the meaning of section 69-103, there would be nothing more to be said. The present action could be maintained by authority of the statute. If I am wrong, and that section was intended to regulate procedure only, and must, therefore, be put out of consideration on the question of the right of plaintiff to sue her husband, we are still confronted with the fact that by other sections of the Married Women's Act the reason of the common law rule rejecting such actions has disappeared. That being so, the rule cannot survive unless we can find some other reason for continuing it under present-day conditions. See Lippman, The Breakdown of Consortium, 30 Col. *Page 250 L. Rev. 651, 672, quoting Holmes, The Common Law, p. 5; Naab v. Smith, 55 Wyo. 181, 189, 97 P.2d 677.
It has sometimes been said that to permit a wife to sue her husband would cause the courts to be filled with trivial cases. There is no evidence that this prophesy has come to pass in any of those states where such actions are permitted. If the wife is permitted to sue her husband it does not follow that she can sue him for every act that would be a tort if committed against an unmarried woman. Husband and wife, because of an implied privilege or license arising from the marital relation, should have in their conduct toward each other a freedom of speech and action that would not be permitted between strangers. See Vernier, Am. Family Laws, § 180 p. 269; McCurdy, Torts between Persons in Domestic Relation, 43 Harvard L. Rev. 1030, 1055; Bushnell v. Bushnell, 103 Conn. 583, 587, 131 A. 432,44 A.L.R. 785; Allen v. Allen, 246 N.Y. 571, 584, 159 N.E. 656, 661; The Queen v. Jackson (1891) 1 Q.B. 671, 679, 683.
Many of the cases that have considered the question of the right of a wife to sue her husband for assault and battery were commenced after the parties were divorced. The leading cases, Phillips v. Barnett, supra, and Abbott v. Abbott, 67 Me. 304, were of that kind, and in each there was an intimation that for the cruelties suffered the wife could have obtained compensation in the nature of alimony in the divorce action. Other cases have suggested that divorce or a criminal prosecution is an adequate remedy for an assault by the husband on the wife. See Thompson v. Thompson, 218 U.S. 611, 619. It may be that under our laws a decree of divorce ought to be taken as a final settlement of all claims of the parties against each other for damages, but, of course, that question is not now before us, and the cases just cited are irrelevant except to show that at least one of the reasons sometimes given for denying *Page 251 to a wife the right to sue her husband for personal injuries, can have no application in actions for negligence which is neither a crime nor a ground for divorce.
There is, of course, no rule of law or morals that gives a husband the right to inflict a personal injury on his wife. "A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage . . . . . Unlawful the act remains, however shorn of a remedy." Cardozo, Ch. J., in Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 256-257, 164 N.E. 42, 64 A.L.R. 293. The injury may cause substantial increase in "necessary expenses of the family" which, under section 69-101, R.S. 1931, are chargeable upon the wife's separate property. It may require that she incur obligations which, under section 69-102, may be enforced against her as if she were unmarried. It may render her unable to work or engage in business as she is entitled to do for her separate benefit under section 69-105.
The main reason given for the continuance of the common law disability after the enactment of married women's acts rejecting the fiction of unity, is that tort actions between husband and wife for personal injuries will disturb the peace and tranquillity of the home. The question is one of public policy that ought to be decided by the legislature. Courts have no peculiar fitness to answer it, and are likely to give undue weight to the personal views of the judges, who (it has been said) are more to be trusted as interpreters of the law than as expounders of public policy. Winfield, Public Policy In English Common Law, 42 Harvard L. Rev. 76, 97. In the absence of a rule of public policy established by statute or previous judicial decisions, we should not formulate one unless we find that is so generally held and so obviously sound that it is in fact a *Page 252 part of the law of this state. See Mertz v. Mertz, 271 N.Y. 466,472, 3 N.E.2d 597, 108 A.L.R. 1120.
I think, as has often been said by competent writers on the subject, that at the stage in which a wife wishes to sue her husband for damages for a willful tort, there is not much domestic tranquillity left to be disturbed. See Vernier, supra; McCurdy, supra, at p. 1052; Haglund, Tort Actions between Husband and Wife, 27 Georgetown L.J. 697, 892, 917; Albertsworth, New Interests in the Law of Torts, 10 Calif. L.R. 461, 472; Note, 38 Harvard L.R. 383, 389; Harper on Torts, § 288.
The public policy argument is not supported by any background of facts or experience. There is no evidence than tranquillity in homes has been disturbed by such suits in those states that permit them, or that it has been preserved in other states by denying them. The legislatures have been indifferent, apparently willing to let the decisions of the courts stand, except in New York where the policy of denying such actions, as established by court decision of 1882, was reversed by Ch. 669, p. 1520, Laws of 1937.
If this supposed public policy prevents only personal injury actions, it would seem curiously inconsistent, as suggested in Brown v. Brown, 88 Conn. 42, 46, 89 A. 889, 52 L.R.A. (N.S.) 186, that a wife could sue for a broken promise and not for a broken arm. In the present case, the plaintiff might be entitled to sue for damages to the dress she was wearing at the time of the accident, and denied the right to sue for the serious injury to her person. See Note, 47 L.Q. Rev. 163, 164.
As explained by Judge Blume, there is no danger of domestic tranquillity being disturbed by an action for negligence by a wife against her husband who carries indemnity insurance. Negligence actions by wives against husbands, without any noticed exception, have *Page 253 involved automobile accidents, and have arisen since it has become a common practice for owners of such vehicles to carry insurance that serves the double purpose of protecting them, and compensating those whom they or their agents may injure. It is natural and commendable that an owner who is the head of a family should want this protection to extend to the members of his family. See Kyle v. Kyle, 210 Minn. 204, 207, 297 N.W. 627. Actions against defendants who have provided for such protection may suggest a danger of fraud, but I am satisfied with Judge Blume's discussion and conclusion on that point.
The record in the present case does not show that defendant is, or that he is not, protected by insurance. There is no reason why it should unless, as Judge Blume argues, the suit ought to be permitted if the defendant carries insurance, and rejected if he does not. But there are many cases, which I do not care now to question, holding that in the negligence action the fact that defendant husband is insured is not relevant for any purpose, evidently on the theory that the risk insured against is the liability that would be imposed by law on the defendant if he were not insured. On authority of these cases, a court that formulates a rule of public policy in order to continue the common law disability of a wife to sue her husband for injury to her person, will prevent a large class of actions that will have no tendency to disrupt the family peace.
I should permit the present action, because I believe our married women's statutes abolishing the fiction of marital unity leave no basis for the common law disability of the plaintiff to sue, and there is no reason for continuing the disability under modern business and social conditions. My associates disagree with me, and concur with each other in affirming the judgment dismissing the action. Judge Blume believes that the only defect leading to that result is the absence of an allegation *Page 254 that defendant is protected by insurance, and discusses the right of plaintiff to bring another action on a petition containing that allegation. I do not care to express an opinion on the right of plaintiff to bring another action until she undertakes to do so.
Judgment affirmed.