Boutell v. Shellaberger

BLAIR, J Husband for Torts of wife, Respondent lived with her minor son in an apartment house in Kansas City, and the son was injured by the alleged negligence of the °PeraYr of an elevator maintained in the building by the owner for the use of the occupants. Appellant’s wife owned the building. Under our statute it was her statutory separate property, having been acquired in 1899, and was leased and managed by her, through her agent, independently of her husband. This action for damages was begun against appellant and his wife. No service having been had upon thé wife the case proceeded to judgment against the husband alone and he appealed. This record presents the question whether a husband is liable for the torts of his wife committed by her in the management of her separate real property, the husband neither being present, directing nor otherwise participating therein. This question has been passed upon in many jurisdictions. In practically all of them it is held that in circumstances like those in this case the husband is not — 76 — liable. The question has never been squarely decided by this court. The decisions in other jurisdictions fall into several classes: First, those under statutes expressly exempt- . ing the husband from liability. These are not in point here because founded upon such statutes. Second, ' those which hold that the effect of statutes, substantially like ours, affecting married women, has been to sweep away all liability of the husband for the wife’s torts. Third, those holding that the husband’s liability for the wife’s torts remains unaffected by married women’s statutes and now includes liability in circumstances like those in the instant case. These are few. Fourth, those holding that the married women’s statutes do not affect the husband’s liability for the torts simpliciter, the purely personal torts, of the wife, and that this remains as at common law; but that the husband is not liable for the wife’s torts when committed in the management of her separate property and out of the husband’s presence, not under his direction and without his participation. The courts of this State consistently hold that, despite our statutes affecting the status of married women, the husband is still liable for the wife’s purely personal torts, as at common law. Instances are: Nichols v. Nichols, 147 Mo. 407 et seq., in which case the husband and wife were sued by their daughter-in-law for their act in alienating from her the affections of her husband, their son; Taylor v. Pullen, 152 Mo. 434, in wliich case the basis of the action was slander uttered by the wife, “without the presence, knowledge or consent” of the husband; Bruce v. Bombeck, 79 Mo. App. 231, in which case the facts were that the wife (so the jury found) was racing a horse in a city street and negligently struck and injured plaintiff. The case of Wirt v. Dinan, 44 Mo. App. 583, was one in which the wife was charged with stealing cattle and selling them to plaintiff, falsely representing them — 77 — as her own and that she was unmarried. The suit was to recover the” amount paid the woman for the cattle. The husband was held liable. The case arose prior to the enactment of the statute capacitating the wife to be sued as femme sole, though she might sue to protect her separate personalty. [Laws 1883, p. 113.] Ellison and Gill, JJ., concurred in the result only. The opinion is to the effect that the wife’s contract was void and that it was as if it had never been; that to sustain the action did not give any effect to the contract and, consequently, it was, in effect, a simple action for the wife’s fraudulent representations and fell within the general common law rule refining the husband’s liability for the wife’s torts. Whether we approve or disapprove the reasoning employed and the result reached, it is clear the decision adds nothing to those already mentioned, but falls within the same class. Since these decisions, and their like, deal only with the simple personal torts of the wife, they are not authority beyond that field. For such torts the husband was liable at common law and the husband’s liability for such torts, these cases hold, is unaffected by the statutes changing the status of married women. In this case the apartment house was Mrs. Shellaberger’s statutory separate estate. By the express terms of the statute (Sec. 8309', R. S. 190-9'), it was “under her sole control” and in no way liable for her husband’s debts. With respect to her right to manage the property and to contract and be contracted with, to sue and be sued, and enforce and have enforced against her property any judgments rendered for or against her, the statute (Sec. 8304, R. S. 1909) explicitly provides she shall be deemed a femme sole. Under the common law, had there been no statutes affecting the situation, the husband would have been entitled to the use of the apartment house and the wife could have made no contract concerning it, nor could she have had an agent in connection with it. The stat — 78 — úte, however, declaring that the wife’s property, real and personal, shall be her separate property and it shall “be under her sole control” and declaring that she £ £ shall be deemed femme sole so far as to énable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued,” etc., both excludes the husband as a factor so far as the wife’s property, business and contracts are concerned and provides remedies' against her in behalf of those who have rights to enforce. To hold that such a sweeping change in the wife’s status, introducing relations and activities on the part of the wife unknown to the common law, opening a field for torts by the wife which her former status made impossible, left the husband liable for torts committed by her in connection with the management of her separate property, would be not merely to adhere blindly to an ancient rule, but to attempt to bring within it things which could not have been within its purview as formerly understood. The statutes wholly emancipate the wife, at least so far as her separate property is concerned, and open new fields of endeavor closed to the wife by the common law. Since the husband is left no legal right to inter-meddle with the business affairs and property of the wife, it is not logical to admit him to her new sphere solely that he may pay damages for torts the wife commits therein, excluding him for all other purposes. The igreat weight of authority supports the conclusion that the husband is not liable in this case. [Quilty v. Battie, 135 N. Y. 201; Rowe v. Smith, 45 N. Y. 230; Henley v. Wilson, 137 Cal. l. c. 274, citing Pomeroy on Remedies and Remedial Rights, secs. 320, 321; Wolff & Co. v. Lozier, 68 N. J. L. l. c. 107; Harrington et ux. v. Jagmetty et ux., 83 N. J. L. 548; 1 Cooley on Torts (3 Ed.), sec. 135, p. 197; Vanneman v. Powers, 56 N. Y. l. c. 43.] — 79 — It is urged, however, that in Flesh v. Lindsay, 115 Mo. 1, this court passed upon the question here involved and committed itself to the position opposed to that taken in the cases just cited. An examination of the authorities in other jurisdictions discloses that such is the general reputation of the case of Flesh v. Lindsay. Such, however, is not its character. In that case the principal question discussed was whether the wife could he held for loss caused by the falling in 1887 of a party wall weakened by the negligence of workmen making repairs on a building erected on a lot inherited by the defendant wife in 1877. The workmen were employed by the husband, with the knowledge and consent of the wife. That case is not in point as it appears from the facts (1.) that the property there involved was not the separate property of Mrs. Lindsay, as the court expressly, states in the opinion and as the facts stated clearly show; (2) that the statutes making the wife’s realty her separate property and declaring it should be under her sole control and declaring she should be deemed a femme sole with respect to her right to transact business, contract and be contracted with, sue and be sued, were not enacted until 1889, two years after the tort was committed in 1887, and were prospective in effect; (3) and that the real question discussed was not the husband’s liability, but that of the wife. Flesh v. Lindsay is not in point. Nor is the Act of 1881 opposed to the conclusion that the husband is not liable in this case. That act is to the effect that: “The husband’s property, except such as may be acquired from the wife, shall be exempt from all debts and liabilities contracted or incurred by his wife before their marriage.” [R. S. 1889, sec. 6870.] In Nichols v. Nichols, supra, it was said that “upon the familiar principle of expressio wnius, exclusio alterius” the act was “a positive expression of the legislative intent as to the extent to which” the married — 80 — women’s statutes should exempt the husband from liability for the wife’s torts. That case, however, involved the question as to the husband’s liability for the wife’s torts simpliciter. It cannot be supposed that the , act was intended to extend the field of the husband’s liability. When it was passed (in 1881) the wife could have no statutory separate estate in realty. Such separate estate as she might have called for a trustee and was equitable. Besides the Act of 1881 can hardly be held to modify the effect of the acts of 1889 relating to married women. The re-enactment of the Act of 1881 in the revised bill of 1889 merely continued it as before and added nothing to its force or effect. The construction given the Act of 1881 in Nichols v. Nichols, supra, is fully preserved by applying it now to the legal status in the light of which it was first enacted. This was all that was done in the Nichols case. We conclude that under the facts of this case appellant is not liable. The judgment is reversed. All concur, Woodson, J., in separate opinion.