Schuler v. Henry

Chief Justice Steele

delivered the opinion of the court:

The record presented requires us to determine this question: Is a husband liable for the tort of his wife, committed during • coverture and without his presence, and in which he in no manner participated?

The rule of the common law which makes the husband liable for the torts of his wife has not been expressly repealed, and unless it has been repealed by implication, the question must be answered in the affirmative. In determining whether the rule of the common law has been abrogated by the enactments concerning’ married women or is still in force, it will be necessary to briefly consider the status of a married woman at common law and her status under the statutes of this state.

At common law the husband and wife were considered as one person, as having but one will between them — that seated in the husband as the head and governor of the family. Therefore, the law gives him the same right over real estate accruing to the wife during coverture as if she were seized of it before marriage. So of chattels real accruing to the wife. It also' gives him an absolute power over any personal estate or interest accruing to the wife by gift, devise or her labor. — Bacon’s Abridgment, Title Baron and Femme, D.

“The husband hath, by law, power and dominion over his wife, and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner.” — Idem, B.

The wife’s identity was completely merged in that of her husband. With but few limitations, he had the control of her person, her property, her chil-' dren, her labor.

“The legal theory is, that marriage makes the husband and wife one person, and that person is the husband, that there may be an indissoluble union of interest between the parties.” — State v. Burlingham, 15 Me. 104.

As compensation for depriving her of a legal existence, and dépriving her of the enjoyment of her property, and' of being under the dominion of her husband, the wife had the benefit of her legal nonentity, and she was presumed to have acted under the direction of her husband, and her misdemeanors and her trespasses were to be looked upon, not as arising from the promptings of her own mind or will, but as the result of the overpowering commands or coercion of him whom she had promised to obey. — Marshall v. Oakes, 51 Me. 310.

“The common reason assigned for this legal disfranchisement of the wife is, that there may be an indissoluble union of interest between the parties. In other words, lest the wife might be sometimes tempted to assert rights in opposition to her husband, the law humanely divests her of rights.”— "Walker’s American Law, 246.

By our statute there is a complete change in all this; and the Colorado wife is not the wife as at common law, but is vested with absolute control "and dominion over her property and her person. She may sue and be sued as though she were sole; she may engage in business on her own account; she may sell and convey her property without the consent of her husband; her "property is not liable for her husband’s debts; she is entitled to the earnings of her labor; she may execute any bond, bill or promissory note, and may contract debts in her own name; and in every suit or proceeding, when judgment is rendered against her, it may be enforced by execution against her. She may dispose of her property by will, and the law places both husband and wife upon the same level with reference to the disposition of property by will; the provisions of the statute are slightly different, but the effect is the same, and neither can dispose of more than one-half of the property without the consent of the other. Either husband or wife may incur indebtedness for the family expenses, and for such indebtedness either or both will he liable. The husband is not liable for the debts of his wife contracted before marriage, except to the extent that he may have received property from her. • The right of the husband to beat his wife or to imprison her to enforce obedience to his will is no longer recognized as a right by our race, and such treatment of the wife is practiced only by those of brutish instincts. The husband is no longer entitled to the exclusive possession of the children. Although there exist certain reciprocal obligations and duties growing out of the marital relation, whatever they are, they are not based upon the supposed vassalage of the wife or the imagined lordliness of the husband. Thus it will be seen that the wife in Colorado has been wholly emancipated “from the condition of thraldom in which she was placed at common law.” And, as stated by Chief Justice Thatcher in Wells v. Caywood, 3 Colo. 494: “The wife in Colorado is the wife under our statute and not the wife at common law, and by our statutes must her rights be determined; the common law affecting her rights, as we shall presently see, having been swept away. ’ ’

That many of the states still hold the husband liable jointly with the wife for torts committed by her without his presence, must be conceded, and perhaps the greater number that have passed upon the question have so held; but, in no one of the states so holding is the' wife so completely emancipated from the dominion of her husband as in this, state, and, as a rule, the courts find in their statutes some enactment showing that the legislature intended to not repeal the common law upon the subject. Thus, in the states of Pennsylvania and Indiana the statutes provide that where a judgment is rendered against the husband and wife for the tort of the wife, execution shall first be levied upon the separate property of the wife, if she have any. — Quick v. Miller, 103 Pa. St. 67; Choen v. Porter, 66 Ind. 194.

In California and Texas the husband and wife own community property, the husband being the head' of the community, and the statutes of these states are not nearly so broad as ours. In Texas the court recognizes the justness of the Illinois decisions, and states that the Illinois statutes “give to the wife much more extended powers in reference to her own action and services and property rights than the statutes of this state.” In California, although the court seems inclined'to the doctrine that the husband should be held for some of the reasons assigned in other jurisdictions, stül it assigns as a sufficient reason for holding the husband liable that the wife cannot be sued under the California statutes without her husband for a tort that does not concern hex-separate estate, and that she can be sued only when the action concerns her separate property or her claim to the homestead, when the action is between herself and husband, or when she is living in separation from her husband by desertion or under an agreement in writing. — Zeliff v. Jennings, 61 Texas 458; Henley v. Wilson, 137 Cal. 273.

In Minnesota the court finds in the statute a provision which seems to declare by negative words, that the husband is liable for the torts of the wife. The court says: “Then, as if'to emphasize the matter and place the legislative intention beyond all doubt, it was provided (section 5536) that nothing in the act should be. considered as exempting a husband from liability for torts committed by his wife.— Morgan v. Kennedy, 62 Minn. 348.

In Maine, Massachusetts, North Carolina and South Carolina the courts do not discuss the question on the lines adopted by the courts of other states, but content themselves with the bare announcement of the rule at common law. — Ferguson v. Brooks, 67 Me. 251; Hill v. Duncan, 110 Mass. 238; Presnell v. Moore et ux., 120 N. C. 390; Henderson v. Wendler, 39 S. C. 555.

In New York the statute provides that a-married woman may sue or be sued in all matters having relation to her separate estate. — Fitzgerald v. Quann, 109 N. Y. 441.

In Missouri the court holds that the statute providing “that the husband’s property, except such as may be acquired from the wife, shall be exempt from all debts and liabilities contracted and incurred before marriage, ’ ’ relaxed the common-law rule to the extent of limiting the husband’s liability for his wife’s antenuptial debts and torts to property received and acquired by him from his wife; and on the familiar principle of expressio unius, exclusio alterius, left the liability for her torts, committed during coverture, just as they existed at common law. — Taylor v. Pullen, 152 Mo. 434.

In Iowa the court holds the husband liable' for the torts of the wife, and states: “But, as he was liable at common law for the torts of his wife committed after marriage, and the statute exempts him from his liability for her debts only, it follows that his liability for such torts continues as at common law.” — McElfresh v. Kirkendall, 36 Iowa 224.

That the husband is not liable because of his supposed neglect of duty in not controlling his wife must be apparent when we consider that the rale that makes the husband liable for the torts of the wife committed during coverture requires that a recovery-must be had during coverture, and that if the wife dies before judgment the suit abates, and that if they are separated by divorce, or if the husband dies, the action survives against the wife. For, if the rale were based upon the failure of the husband to exercise his right of control over his wife’s conduct, the action against him should not abate upon the wife’s death, nor survive against her upon divorce. In speaking of this subject, Rapallo, J., in Kowing v. Manly et al., 49 N. Y., at page 201, says: “It is claimed, however, on behalf of the respondent, that the husband being liable for the tort of his wife in fraudulently obtaining the bonds, he cannot maintain an action founded on such tort. The unsoundness of this position consists in the assumption that the liability of the husband to be joined with his wife in an action for her wrong is equivalent to a guilty participation by him in that wrong, or is founded upon the idea that her act is 'considered as his. Such is not the nature of his liability. He is not joined as a defendant on the ground that her guilt is imputed to him, but because, so long as the marital relation continues, the wife is incapable of being sued alone (Capel v. Powell, C. B. [N. S.] 744); and his liability continues only so long as the relation of marriage subsists. In trover against husband and wife for goods converted by the wife, the reason assigned for holding a plea that the defendants were not guilty, to be bad, was that, ‘no tort is supposed in the husband, and the issue should be that she is not guilty. ’ ’ ’

Until 1874 (Laws of 1874, 185) married women were under disability, and could not sue or be sued except in matters relating to their separate estate. The statute up to that time also provided that when judgment was rendered against the husband and wife for the tort of the wife, execution should first be levied on the lands of the wife, if she had any. And it is a striking coincidence — if, indeed, the legislature was not advised that the removal of the wife’s disability would remove the liability of the husband for the torts of the wife1 — that the legislature should, in the same act, remove the disability of married women and repeal the section providing that in actions for tort against husband and wife, execution shall first be levied upon the lands of the wife. Indeed, it might fairly be inferred that the legislature intended by the act of 1874 to relieve the husband from liability for his wife’s torts by removing the wife’s disability.

We might rest here and reverse the judgment for the reasons given, but we prefer to determine the case upon additional and broader grounds. The courts and text writers do not agree as to what constitutes the basis for the rule at common law that makes the husband responsible for the torts committed by his wife. Some of them state that it is because the husband at common la,w had the power of correcting his wife and that he was, therefore, responsible for her conduct; others that as he had the control of her property, he should be answerable for her wrongs; still others that, as she could not be sued alone, the injured party would be without redress unless the husband were held liable with her, and this appears to be the theory most frequently advanced, and is regarded by Tyler, in his work on Infancy and Coverture, as the controlling reason for holding the husband liable. He says: “But at common law, the husband is answerable to third persons for acts and injuries done by his wife when they afford ground for a civil action, even though done without his knowledge or instrumentality in any way; and this upon the ground that the legal existence of the wife during marriage is incorporated or consolidated into that of the husband, and if the husband was protected from responsibility, as the wife could not be sued alone in such a ease, the injured party would be without redress; the husband’s liability results from the incapacity of the wife to be sued without him.” — Tyler on Infancy and Coverture, 380.

We can find no just reason for holding the husband liable for the torts committed by his wife unless committed by his direction. He cannot be held upon the common-law theory of unity of husband and wife. The unity has been severed, and we have grafted into our system of jurisprudence the benign principle of the civil law, whereunder “husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts and injuries. ’ ’ —Wells v. Caywood, 3 Colo. 487. He cannot be held upon the ground that she cannot be held without him, for she can be sued in all matters as if she were sole. He cannot be held upon the ground that he has control of her property and should respond in damages with it, because he has no control of her property, and she may do with it as she pleases. He cannot be held upon the theory that he has the power to restrain her, because he has no such legal power. As he has no legal control over her person or hen property, he should not be held for her wrongs. In fact, not one of the reasons assigned by courts and text writers for holding the husband liable exists in this state; and, as the reason for holding the husband no longer prevails, he should not be required to respond in damages for the torts of his wife.

It is said by the court in Martin v. Robson: “A liability which has for its consideration rights conferred, should no longer exist when the consideration lias failed. If the relations of husband and wife have been so changed as to deprive him of all right to her property, and to the control of her person and her time, every principle of right would be violated, to hold him still responsible for her conduct. If she is emancipated, he should no longer be enslaved. * * * So long as the husband was entitled to the property of the wife and to her industry, so long as he had power to direct and control her, and thus prevent her from the commission of torts, there was some reason for his liability. The reason has ceased. The ancient landmarks are gone. The maxims and” authorities and adjudications of the past have faded away. The foundations hitherto deemed so essential for the preservation of the nuptial contract, and the maintenance -of the marriage relation, are crumbling. The unity of husband and wife has been severed. They are now distinct persons, and may have separate legal estates, contracts, debts and injuries. * * * So diverse are the rights and interests, the duties, obligations and disabilities of husband and wife now, that it would be most unreasonable to hold him still liable for the torts committed without his presence and without his consent or approbation. * * * They are not one, as heretofore. They are one in name, and are bound by solemn contract, sanctioned by both divine and human law, to mutual respect; should be of the same household, and one in love and affection. But a line has been drawn between them, distinct and ineffaceable, except by legislative power. His legal supremacy is gone, and the scepter has departed from him.” — Martin v. Robson, 65 Ill. 129.

These words truly state the legal relationship of husband and wife as it exists in Colorado. Since they were written, the statutes of this state have been broadened, until now there is scarcely a semblance of the common-law reciprocal liabilities and duties remaining. The decision in the case of Martin v. Robson has been followed by the cases of Norris v. Corkill, 32 Kan. 409; Harris v. Webster, 58 N. H. 481; Lane and Wife v. Bryant, 100 Ky. 138; Culmer v. Wilson,. 13 Utah 129; Goken v. Dallugge, 72 Neb. 16. These decisions are based upon the principle that where the reason, which is the spirit and soul of the law, fails, the law fails. We regard them as logical, forceful and just, and we desire to be in line with them.

The other assignments of error we regard as being without merit, and we shall not discuss them.

The judgment will be reversed as to the appellants L. Schuler, G. C. Collins and Joe Gontier, and affirmed as to the other appellants.

Decision en bamc.

Mr. Justice Gabbert and Mr. Justice Maxwell dissent.

Mr. Justice Helm did not participate.