Henley v. Wilson

TEMPLE, J.

It was admitted on the trial that the husband was not present at the time of the assault, and had no knowledge of the occurrence until some time afterwards. An instruction was asked by appellant to the effect “that the husband is not responsible for the wrongful acts of the wife committed out of his presence and without his knowledge or consent.” This was refused, and a verdict for plaintiff was returned and judgment went against both defendants, from

[274]

which the husband appeals. Whether this proposed instruction should have been given is the only question involved.

While there is a conflict in the authorities, appellant concedes at the outset that a majority of the cases still hold to the common-law rule, which makes the husband liable absolutely for all torts committed by the wife. This statement is too broad. Pomeroy on Bemedies and Bemedial Bights (secs. 320 and 321) states that as to all torts committed by the wife, not done by means of, or in the use of, or in the assertion of some right in reference to, her separate property, the common-law rules remain unchanged. Since she is permitted to manage her separate estate as though she was a

feme sole,

it follows that in such management she must be responsible as a

feme sole.

The common-law rule must prevail, unless it has been changed by statute. No express change has been made, but it is contended that, since the wife now retains as her own such property as she has at the time of the marriage, and such as she afterwards may acquire by gift, descent, or devise, and may manage her own separate estate, she should now be held solely responsible for her torts, on the principle that the treason for the common-law rule has ceased to exist and therefore the rule should cease.

i

But what all the reasons for the rule were originally is not now so easy to determine, and accordingly it was said by Mr. Justice Field, in