Opinion
No. 30922.
January 1, 1934.
HUSBAND AND WIFE.
In absence of statute, right of action against husband arising out of automobile accident, existing in wife before marriage, held extinguished by marriage (Code 1930, section 1940; Constitution 1890, section 94).
APPEAL from Circuit Court of Oktibbeha County.
A.B. Butts and Will E. Ward, both of Starkville, for appellant.
The states have enacted a wide variety of statutes abrogating or modifying the common law fiction of marital unity and the decisions of the several courts are as varied as the statutes which they construe.
In most of the cases which deny the right of one spouse to sue the other in tort, the decision rests upon the ground that the statute under consideration merely enumerates specific exceptions to, but does not completely remove the common law disabilities of coverture. On the other hand, where statutes are construed as being intended to abolish the common law fiction of coverture, such suits are generally allowed.
Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L.R.A. (N.S.) 185; Roberts v. Roberts (N.C.), 118 S.E. 9.
The general trend seems to be along lines of more liberal construction of the married women's statutes.
Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L.R.A. (N.S.) 185.
Section 1940 of the Mississippi Code of 1930 Annotated provides that married women are fully emancipated from all disabilities on account of coverture. It would seem that this provision is broad enough to bring the Mississippi statute within the first classification laid down in Brown v. Brown, and Roberts v. Roberts, supra, from which it should follow that suits between husband and wife could be maintained in this state.
Section 94 of the Mississippi Constitution of 1890.
Appellant in the present case was at the time of her injury in legal effect a stranger to the appellee. There immediately vested in her the right to sue.
Prosser v. Prosser (N.C.), 102 S.E. 787; Crowell v. Crowell (N.C.), 105 S.E. 206.
Her subsequent marriage to appellee could not extinguish the right. Watkins Eager, of Jackson, for appellee.
Appellant's brief, with deference, we respectfully submit is but a re-argument of the matters presented by the appellant in the case of Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388, and where this court firmly committed itself to the doctrine that, irrespective of Section 94 of the Mississippi Constitution, and Section 1940 of the Mississippi Code of 1930, Annotated, the wife can maintain no action in tort against the husband.
Austin v. Maryland Casualty Co., 105 So. 640.
Since the decisions of the two Austin cases the statutes of the State of Mississippi have been codified and said section there construed re-enacted in the same language and is now found as Section 1941 of the Mississippi Annotated Code of 1930. Therefore, the rule not only has judicial sanction, but has received express legislative approval. The prevailing rule adopted by this court being that whenever a statute having received a judicial construction is re-enacted, such construction becomes a part of the statute itself.
Burks v. Moody, 141 Miss. 370, 107 So. 379; Womack v. Central Lbr. Co., 131 Miss. 201, 94 So. 2; Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; White v. Railroad Co., 55 So. 593, 97 Miss. 91; Thacker v. Railroad Company, 55 So. 595, 99 Miss. 651; Henry v. Henderson, 60 So. 33, 103 Miss. 48; McLaurin v. McLaurin Furniture Co., 146 So. 877; Dawson v. Dawson, 138 So. 414.
The marriage of the parties is an absolute extinguishment of the right to maintain any cause of action.
Newton v. Weber, 196 N.Y.S. 113, 119 Misc. Rep. 240; Spector v. Weisman, 40 F.2d 792; Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180; Buckeye v. Buckeye, 234 N.W. 342; Webster v. Snyder, 138 So. 755; Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263.
Argued orally by Will E. Ward and A.B. Butts, for appellant, and by P.H. Eager, for appellee.
The appellant sued the appellee for damages resulting from a personal injury, alleged to have been caused by the negligence of the appellee. At the time of the injury, she was riding in an automobile driven by the appellee, which, as she alleges, because of the negligence of the appellee, skidded, turned over, and she was thereby injured. After this injury occurred, the appellant married the appellee, and is now his wife. The appellee, by a special plea, set up the disabilities of coverture as a bar to the action. A demurrer to this plea was overruled, and upon appellant's declining to plead further, a judgment was rendered dismissing the action.
In Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388, we held that, under section 94 of the state's Constitution and the statute now appearing as section 1940, Code 1930, removing disabilities of coverture, a married woman has no cause of action against her husband for the commission by him of a tort against her person. We there said that the Constitution and statute conferred on the wife the right to sue her husband on any cause of action that she might have against him, but that no cause of action was conferred by them on the wife for the commission of a personal tort against him by her husband. It is said by counsel for the appellant that her cause of action accrued prior to the marriage and continued to exist thereafter, and, therefore, even under the Austin Case, the appellant has the right here to sue. At common law, the ground on which no right of action accrues to one spouse against the other for the commission of a personal tort is the legal unity of their persons by virtue of the marriage. The reasons underlying this rule apply with equal force to the continuance of a cause of action which one spouse has against the other prior to their marriage; so that to be logical we must hold, in consonance with the weight of authority, that in the absence of a statute to the contrary, a right of action in one spouse against the other for the commission of a personal tort, existing prior to the marriage, is extinguished by the marriage. 30 C.J. 955; Newton v. Weber, 119 Misc. 240, 196 N.Y.S. 113; Spector v. Weisman, 59 App. D.C. 280, 40 F.2d 792; Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, 30 L.R.A. (N.S.) 1153, 21 Ann. Cas. 921; Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342; Webster v. Snyder, 103 Fla. 1131, 138 So. 755; Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263. Also see Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840.
Affirmed.