
    Finn v. Finn.
    
      Negligence — Wife cannot maintain action against husband, when.
    
    Whfere husband and wife are living together the wife cannot maintain an action in tort against her husband to recover damages for injuries sustained by her through bis alleged negligence.
    Husband and Wife, 30 C. J. § 675.
    (Decided November 24, 1924.)
    Error: .'Court of Appeals for Lucas county.
    
      Messrs. Miller & Brady, for plaintiff in error.
    
      Mr. George Lewis and Mr. W. H. MoLellan, Jr., for defendant in error.
   •Chittenden, J.

This action was instituted by Esther Gr. Finn, as plaintiff in the common pleas court, against Julius R. Finn, to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant in operating his automobile. It appears from the pleadings that the plaintiff and the defendant are, and were at the times set forth in the petition, husband and wife living together. The plaintiff alleges, in substance, that while riding in an automobile with her husband, the automobile being driven by him, he so negligently operated the automobile as to come into collision with a tree, as a result whereof she was seriously injured. She prayed for judgment against her husband in the sum of $10,000. The defendant filed a motion for a judgment in his favor upon the statements in the pleadings, which motion was sustained. Judgment was accordingly entered in favor of the defendant, and error prosecuted to this court.

In argument, counsel state that “this case presents only one question for the consideration of the court, namely: Can a wife sue her husband in tort for injuries sustained by his wrongful act?” While that is a correct statement, of the identical question to be determined in this action, the principle involved is somewhat broader in scope. The question to be determined is whether either a wife or a husband may sue the other for injuries resulting from the negligence of the one sued. It is conceded that a.t common law such an action could not be maintained. The theory of the common law was that the identity of. the wife was merged in that of the husband, and that because of the identity of person in husband and wife neither could maintain an action at law against the other. It is claimed, however, on behalf of the plaintiff in error, that the legislative enactments of the General Assembly of Ohio should be so construed as to confer upon a wife the right to maintain an action against her husband for injuries sustained by her through his tortious acts.

The theory of the common law- that by marriage the legal existence of the wife was. merged in that of the husband, so that she was incapable of contracting, acquiring and disposing of property without the consent of the husband, of suing and being sued separately, has been abolished by modern legislation. By progressive legislation the common-law limitations on the rights of married women have from time to time been removed, so that in Ohio the rights of married women stand on an equality with that of married men. Their rights and obligations are mutual, except that the duty of supporting himself, his wife and minor children out of his property, or by his labor, rests primarily upon the husband. (Section 7997, General Code.) Their property rights are entirely separate, neither having any right in the property of the other, except such as is provided by Section 7997, General Code, and the right of dower, and the right to remain in the mansion house after the death of either, as provided by law. (Section 7998, General Code.)

Husband and wife are enabled by Section 7999, General Code, to contract with each other, the same as if they were unmarried. The statutes of this state will be searched in vain for any provision expressly permitting the husband or wdfe to sue each other for injuries to the person or property of either. That the wife may sue in her own name and right upon any cause of action which she may have, whether it arise out of contract or out of injury to her person or property, is beyond dispute in this state. (Section 11245, General Code.) These enabling statutes, however, confer on her no new causes of action. They have only conferred upon the wife the same rights with reference to property, and the maintaining of actions in court, as were theretofore possessed by the husband. The right of the wife to maintain an action in her own name against third parties for wrongs sustained by her through the action of such third parties has been sustained by the Supreme Court in Westlake v. Westlake, 34 Ohio St., 621, and in Flandermeyer v. Cooper, 85 Ohio St., 327. That the enabling statutes above referred to were not intended by the Legislature to confer upon either husband or wife the right to maintain civil actions for tort against the other was the opinion of the Supreme Court expressed in the decision of State v. Phillips, 85 Ohio St., 317. In that case the wife had been indicted for larceny from her husband. It was there argued that the statutes of Ohio had abrogated the common-law rule, based upon the theory of unity of person, that neither husband nor wife could be prosecuted for larceny of the goods of the other. Judge Davis, speaking for the court, uses this language, on page 323 :

“Indeed we doubt that any member of that body had in contemplation such a result when he voted for the statutes which protect the individual rights of married people. The legislature was contemplating the expressed purpose of the statutes, and that only. They were not at that time considering crimes and criminal procedure; and surely they cannot be presumed to have intended a thing which they did not clearly express and which taught with such far-reaching and radical consequences to the law of the domestic relations, for the abrogation of the doctrine of the legal unity of husband and wife, when pushed to its logical conclusion, would not only create crimes where there were none before, but would also authorize a hus ■ band or wife to maintain civil actions for tort against the other; such as actions for personal injuries, assault, false imprisonment, or slander (15 Am. & Eng. Ency. Law, 2 ed., 857), thus multiplying a hundredfold the unhappy differences which have to be settled in the divorce courts. We cannot assume that the legislature intended this without very clear evidence of such an intention in the language of the statutes.”

It must be presumed that the legislators knew the policy of the common law, as established by centuries of judicial decisions. Had it been the intention of the Legislature to permit husband and wife to sue each other for injuries to the person or property caused by the other, it surely would have so declared by express and clear legislative enactment. To make such a radical change in the policy of the common law by judicial construction would be equivalent to such legislation. While the common-law unity of person in the husband and wife no longer prevails, nevertheless the marriage ceremony does constitute a new relationship whereby the parties assume a different responsibility toward each other and toward society. As husband and wife, there/ is at least a unity of interest in the establishment of a home. The home has been looked upon as constituting the basis of our civilization and the strength of our government. Love of home is regarded as the greatest safeguard of our institutions. The growing volume of divorce cases is cause for apprehension as to the future of our domestic stability. It would seem that any policy that may add to the causes for dissension between husband and wife would be of doubtful benefit. The intimate relations of home life might easily become the source of fruitful litigation. Shall a misplaced chair over which husband or wife falls furnish the grounds for an action against the other because of his or her alleged negligence? If such is to become the policy of the law, if such a radical change, so vitally affecting the legal status of husband and wife, is' to be made, it should be made by clear and express legislation and not by judicial construction.

We are aware of the fact that the courts of different states are not in accord upon this proposition, but the great weight of authority is opposed to the position taken by plaintiff in error in this case. The subject was dismissed by the ¡Supreme Court of the United States in Thompson v. Thompson, 218 U. S., 611. That court reached the conclusion that the law of the District of Columbia, conferring upon the wife the right to sue separately for torts committed against her, did not authorize an action* against her husband for damages arising from an assault and battery. In the course of the opinion rendered in that case, at page 619, Mr. Justice Day said:

“Nor is the wife left without remedy for such wrongs. She may resort to the criminal courts, which, it is to be presumed, will inflict punishment commensurate with the offense committed. She may sue for divorce or separation and for alimony. The court in protecting her rights and awarding relief in such cases may consider, and, so far as possible, redress her wrongs and protect her rights.”

In addition to the cases cited in that opinion we call attention to Strom v. Strom, 98 Minn., 427, and Woltman v. Woltman, 153 Minn., 217. The cases bearing upon the question are collected and discussed in an extended note in 6 A. L. R., at page 1038.

From the considerations above set forth we find that there was no error in the judgment rendered in the Court of Common Pleas, and the judgment will be affirmed.

Judgment affirmed.

Kxnkade and Richards, JJ., concur.  