Martin v. Robson (65 Ill. 129, 1872)

Mr. Justice Thornton

delivered the opinion of the Court:

Since'the passage of the acts of 1861 and 1869, (Session Laws of 1861, 143, and of 1869, 255,) is the husband liable for the torts of the wife during coverture, committed when he was not present, and in which he in no manner participated ?

Those statutes give to the wife, during coverture, the sole control of her separate estate and property acquired in good faith from any person other than her husband, and her own earnings for labor performed for any person other than her husband or minor children, with the right to use and possess the property and earnings, free from the control or interference of her husband.

In determining the intent, object and effect of these enactments, it will be interesting to place, in juxtaposition, the rights and duties, liabilities and disabilities of husband and wife, incident to the marriage union, as they existed at common law, and the changes made by the statute.

At common law he had control, almost absolute, over her person; was entitled, as the result of the marriage, to her services, and consequently to her earnings; to her goods and chattels; had the right to reduce her choses in action to possession, during her life; could collect and enjoy the rents and profits of her real estate; and thus had dominion over her property, and became the arbiter of her future. She was in a condition of complete dependence; could not contract in her own name; was bound to obey him; and her legal existence ' was merged in that of her husband, so that they were termed and regarded as one person in law.

As a necessary consequence, he was liable for the debts of the wife dum sola, and for her torts and frauds committed during coverture. If they were done in his presence, or by his procurement, he alone was liable; otherwise they must be jointly sued;

Now,-he can not enjoy the profits of her real estate without her permission. He has no control over her separate personal property. It is not subject to his “disposal, control or interference.” Language could not be more explicit. All her separate property is “under her sole control, to be held., owned, possessed and enjoyed by her the same as though she was sole and unmarried.” He has no right to use or dispose of a horse or °a cow, without her consent. He can no longer interfere with her choses in action. They are under her sole control. The product of her labor is her exclusive property. She alone can sue for and enjoy it. An)1- suit for her earnings must be in her own name, and she may use and possess them free from the interference of her husband or his creditors.

The language of the statute of 1869 is, “That a married woman shall be entitled to' receive, use and possess her own earnings, and sue for the same in her own name, free from the interference of her husband.”

The words, “ free from the interference of her husband,” apply as well to the right to receive, use and possess, as to the right to sue for, her earnings. The right, therefore, to receive and use her own earnings, uncontrolled by the husband, is conferred in express terms. The practical enjoyment of this right presupposes the right to appropriate her own time. The right to take and possess the wages of labor must be accompanied with the right to labor. If the husband can control, then the statute has conferred a barren right. If the wife can still only acquire earnings with his consent, then the statute was wholly unnecessary, for she might have done this prior to its enactment. The clear intent of the statute is, not alone to give to the wife the right to accept and use her earnings, but the right to labor, and thus acquire them.

The intention of the legislature to abrogate the common law rule, to a great degree, that husband and wife were one person, and to give to the latter the right to control her own time, to manage her separate property, and contract with reference to it, is plainly indicated by these statutes. While they do not expressly repeal the common laAv rule, that the husband is liable for the torts of the wife, they have made such modification of his rights and her disabilities, as wholly to remoArn the reason for the liability.

The rights acquired by the husband by virtue of the marriage haAre almost all been taken aAvay; and the disabilities of the Avife have-nearly all been remov’ed. She now controls her own estate entirely, except that, by construction of thé courts, she can not convey her real estate Avithout her husband. This, however, is solely for her protection, and to prevent the squandering of the estate. He has now only a modified tenancy by the curtesy, dependent upon a contingency, and no estate vests during the life of the Avife. This is rather a shadoAvy estate. It is an interest Avhich may possibly ripen into something tangible in the uncertain future. Previous to the act of 1861, it could be sold on execution against the husband; now, the wife has the sole control of her real estate during her life, and the husband has no interest until her death. She must sue alone for breach of covenant in a deed to her. This estate, at best, is now a bare possibility. Cole v. Van Riper, 44 Ill. 58; Beach v. Miller, 51 ib. 206.

A liability which has for its consideration rights conferred, 4" should no longer exist when the consideration has 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.

For the policy and wisdom of the legislation which has effected a change so radical, the legislature alone is responsible. The courts must guard against a construction which might prove mischievous, and result in a practical divorcement of man and wife, if such construction can be avoided.

In Cole v. Van Riper, supra, this court said that the legislature never could have intended, by the enactment of 1861, to loosen the bonds of matrimony, or to enable the wife, at pleasure, to effectuate a divorce a mensa et thoro, or to confer the power to restrict the husband to the use of a particular chair, or to forbid him to take a book from the library without her permission. We shall not insist that such unwifelike conduct can even be justified since the law of 1869.

The inquiry is therefore pertinent, what is left of the nuptial contract ? What duties and obligations still exist ?

As the result of the marriage vow, and as a part of the contract, the wife is still bound to love and cherish the husband, and to obey him in all reasonable demands not inconsistent with the exercise of her legal rights; to treat him with respect, and regard him _at least as her equal; and he is still bound to protect and maintain her, unless she should neglect wholly her marital duties as imposed by the common law, or assume a position to prevent their performance, and thus deprive him of her society, mar the beauty of married life, and disregard the household good.

These duties and obligations upon husband and wife were not the result of the arrangement of their property at common law, but of the contract of marriage and the relation thereby created. By the marriage she became one of his family, and he was bound to provide her a home, and necessaries there but not elsewhere. He must furnish her with necessaries, from a principle of duty and justice. 2 Kent’s Com, 148.

“The duties of the wife, while cohabiting with her husband, form the consideration of his liability for her necessaries,” McCutchen v. McGahay, 11 Johns. 281. This doctrine is approved by Kent in his Commentaries, 2 Vol. 146.

The argument urged to maintain the responsibility of the husband for the torts of the wife, because he may still be bound to provide necessaries, is not aj)propriate. Upon the marriage, at common law, his assent to her contracts for necesrsaries was presumed, upon proof of cohabitation. If she eloped, though not with an adulterer, the husband was not chargeable even for necessaries. But elopement did not release him from liability for her debts dum sola, or for her torts.

The rule at common law, as to the liability for necessaries, is, if a man, without justifiable cause, turns away his wife, he is bound for her contracts for necessaries suitable to her degree and estate. If they live together, and he will not supply her, or the necessary means, she then can pledge his credit for necessaries strictly; but if he provides for her, he is not bound by her contracts, unless there is evidence to prove his assent. He is not bound by her contracts unless they are made by his authority or with his concurrence, except he makes no provision for her. Montague v. Benedict, 3 Barn. & Cress. 631; Montague v. Espinesse, 1 Car. & Payne, 502 ; Atkins v. Curwood, 7 Car. & Payne, 756.

.The plain reason for the obligation was the cohabitation, or the right to enforce it, and the consequent right to her obedience and services.

Even though she lived separate from him, supported her children, and earned a salary, the party owing her had no right to pay her, after notice from the husband not to do so. He could, in such case, sue for and recover the salary. Glover v. Proprietors of Drury Lane, 2 Chitty, 117.

How, how changed! Her earnings, except for services she may render to him and his minor children, are her exclusive property, whether living apart from or with him.

Ho principle is better settled, at common law, than that the husband is not liable for necessaries furnished to the wife, if she leaves him without any fault on his part. But he was responsible for her torts until a dissolution of the marriage, even in case of separation.

Where the husband and wife lived apart, and she published a libel of a third person, he ivas held to be answerable, notwithstanding the separation. Head v. Briscol and Wife, 5 Car. & Payne, 484.

The foundation for the liability in the two cases is different. In the one case it ivas based upon cohabitation, and the enjoyment of the society and services of the wife, as a necessary consequence. In the other case it rested more particularly, if not exclusively, upon the fact that the husband . became the absolute owner of her personal property, and had the right to receive the rents and profits of her real estate.

It is also urged, as a reason for the continued liability of the husband for the torts of the wife, that this obligation was imposed upon him at common law, whether she was poor or wealth;-, and that therefore the statutes have produced no different rule.

If she did not enrich him with property—if she did not endow him with gold—she endowed him Avith a nobler gift and a greater excellence. She enriched him w-itli her society, advised and encouraged him as one who had no separate interests, and freely gave to him her time, industry and skill. As a means of paying her debts and damages for her torts, her counsel and earnings might be as important as her accumulated property.

The distinction between the liability of the husband for the contracts of the wife before marriage, and for her torts during marriage,—as for slander uttered by her alone,—is too dim to be easily seen. He was made liable for her debts at the period of marriage, because the law gave to him all her personal estate in possession, and the power to recover her personal property in action. Bright's Hus. & Wife, 2 Vol. p. 2.

He was bound to pay her indebtedness because he adopted her and her circumstances together. Black. B. 1, 443.

The law made him liable to the debts to which he took her subject, because he acquired an absolute interest in her personal property, had the receipt of the rents and profits of her real estate during coverture, and was entitled to whatever accrued to her b)' her industry or otherwise, during the same period. Steph. Nisi Prius, Vol. 1, p. 726.

The reason for the liability, according to some authorities, is that, by the marriage, the wife was deprived of the use and disposal of her property, and could acquire none by her industry, as her person and earnings belonged to the husband. Tyler on Infancy and Cov. sec. 216.

The same author, after declaring the husband's liability for the debts and torts of the wife, says: