A

(March 2, 1915.)

Pr. 395; Graham v. Tucker, 56 Fla. 307, 19 L.R.A. (N.S.) 531, 131 Am. St. Rep. 124, 47 So. 563; Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793; Russell v. Phelps, 73 Vt. 393, 50 Atl. 1101; Harrington v. Jagmetty, 83 N. J. L. 548, 83 Atl. 880; Gustine v. Westenberger, 224 Pa. 455, 73 Atl. 913; Schuler v. Henry, 42 Colo. 367, 14 L.R.A. (N.S.) 1009, 94 Pac. 360; Shane v. Lyons, 172 Mass. 199, 70 Am. St. Rep. 261, 51 N. E. 976; Walker v. Swayze, 3 Abb. Pr. 136; Hinds v. Jones, 48 Me. 349; Martin v. Robson, 65 Ill. 137, 16 Am. Rep. 578; Greenleaf v. Beebe, 80 Ill. 520; Madden v. Gilmer, 40 Ala. 637; Mhoon v. Colment, 51 Miss. 60; Bacon v. Bevan, 44 Miss. 293; Harvey v. Johnson, 133 N. C. 352, 45 S. E. 644; Pom. Code Rem. 222; Bliss, Code Pl. § 86.

Messrs. Brewster, Kelly, Brewster, & Buchholz and Hogsett & Boyle, for respondent:

in the management of property owned by A person injured by the tort of the wife her has a cause of action against both the husband and the wife for such tort.

Flesh v. Lindsay, 115 Mo. 1, 37 Am. St. Rep. 374, 21 S. W. 907; Nichols v. Nichols, 147 Mo. 408, 48 S. W. 947; Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086; Bruce v. Bombeck, 79 Mo. App. 236; Merrill v. St. Louis, 83 Mo. 244, 53 Am. Rep. 576, s. c.

PPEAL by defendant from a judgment of the Circuit Court for Jackson County in plaintiff's favor in an action brought | 12 Mo. App. 466. to recover damages for expenses incurred The plaintiff having a cause of action and loss of services of her minor son on against both Rosa R. Shellaberger and Edaccount of injuries sustained by the alleged ward F. Shellaberger, and being entitled negligent operation of an elevator. Re- by law to one satisfaction therefor, had versed. the right to bring suit thereon jointly The facts are stated in the Commis- against both or against either, as plaintiff sioner's opinion. might think proper.

Messrs. Marley & Marley, for appellant: The husband is not liable for the torts committed by his wife in the management of her separate estate.

Staley v. Ivory, 65 Mo. 74; Gillies v. Lent, 2 Abb. Pr. N. S. 455; Quilty v. Battie, 135 N. Y. 209, 17 L.R.A. 521, 32 N. E. 47, 1 Am. Neg. Cas. 177; Peak v. Lemon, 1 Lans. 297; Fiske v. Bailey, 51 N. Y. 150; Baum v. Mullen, 47 N. Y. 577; Rowe v. Smith, 45 N. Y. 230; Lansing v. Holdridge, 58 How. Pr. 449; Eagle v. Swayze, 2 Daly, 140; Mangam v. Peck, 111 N. Y. 401, 18 N. E. 617; Choen v. Porter, 66 Ind. 196; D. Wolff & Co. v. Lozier, 68 N. J. L. 103, 52 Atl. 303; Brownson v. Gifford, 8 How.

Badgley v. St. Louis, 149 Mo. 122, 50 S. W. 817; Noble v. Kansas City, 95 Mo. App. 171, 68 S. W. 969; Hutchinson v. Richmond Safety Gate Co. 247 Mo. 110, 152 S. W. 52; Winn v. Kansas City Belt R. Co. 245 Mo. 412, 151 S. W. 98.

Blair, C., filed the following opinion:

Respondent lived with her minor son in an apartment house in Kansas City, and the son was injured by the alleged negligence of the operator 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 Note. On the question of the effect of and managed by her, through her agent, inmarried women's acts upon husband's lia-dependently of her husband. bility for wife's torts, see notes to Kellar v. James, 14 L.R.A. (N.S.) 1003; Jackson v. Williams, 25 L.R.A. (N.S.) 840; and Hageman V. Vanderdoes, L.R.A.1915A, 491. BOUTELL V. SHELLABERGER seems to be the only case on the point arising since the last

note.

This action for damages was begun having been had upon the wife, the case against appellant and his wife. No service proceeded to judgment against the husband alone, and he appealed.

This record presents the question whether

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 defining 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.

a husband is liable for the torts of his wife sonalty. Acts of 1883, p. 113. Ellison and committed by her in the management of her separate real property; the husband neither being present, directing, or other wise 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 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 exempting 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., 48 S. W. 947, 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, 53 S. W. 1086, in which 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 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 feme sole, though she might sue to protect her separate per

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 (§ 8309, Rev. Stat. 1909), 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 con tract 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 (§ 8304, Rev. Stat. 1909) explicitly provides she shall be deemed a feme 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 statute, 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 feme sole, so far as to enable 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 | 161) opposed to the conclusion that the 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 intermeddle 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 great weight of authority supports the conclusion that the husband is not liable in this case. Quilty v. Battie, 135 N. Y. 201, 17 L.R.A. 521, 32 N. E. 47, 1 Am. Neg. Cas. 177; Rowe v. Smith, 45 N. Y. 230; Henley v. Wilson, 137 Cal. loc. cit. 274, 58 L.R.A. 941, 92 Am. St. Rep. 160, 70 Pac. 21, citing Pom. Rem. & Rem. Rights, $$ 320, 321; D. Wolff & Co. v. Lozier, 68 N. J. L. loc. cit. 107, 52 Atl. 303; Harrington v. Jagmetty, 83 N. J. L. 548, 83 Atl. 880; Cooley, Torts, 3d ed. § 135, p. 197; Vanneman v. Powers, 56 N. Y. loc. cit. 43.

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."

In Nichols v. Nichols, 147 Mo. 407 et seq., 48 S. W. 947, it was said that "upon the familiar principle of expressio unius, exclusio alterius," the act was "a positive expression of the legislative intent as to the extent to which" the married 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.

Woodson, J., concurring:

It is urged, however, that in Flesh v. Lindsay, 115 Mo. 1, 37 Am. St. Rep. 374, 21 S. W. 907, 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 be 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 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, There was a show of reason and justice and declaring it should be under her sole for that rule prior to the emancipation of control, and declaring she should be deemed the wife and property from the grasp of the a feme sole with respect to her right to husband. Then he took possession of her transact business, contract and be con-person and property by nature of the martracted with, sue and be sued, were not riage; they becoming one, and he that one, enacted until 1889, two years after the tort and as an incident thereto he swallowed was committed in 1887, and were prospec- up her property also. Having thus abtive in effect; (3) and that the real ques-sorbed the personnel of his wife and her tion discussed was not the husband's lia- property, it was considered but just that bility, but that of the wife. Flesh v. Lind- he should assume all of the responsibilities say is not in point. for which she otherwise would have been Nor is the act of 1881 (Laws 1881, p. liable. Otherwise no redress whatever could

I fully concur in the opinion of my learned associate filed in this case, not only for the reasons therein stated, but for the further reason I never have nor never will subscribe to the doctrine that the husband is responsible for any of the torts of his wife, those committed after the enactment of the married woman's act of 1889.

have been had for the torts committed by and foresight in providing the fence as a her.

But now, under the liberal legislative enactments and judicial rulings, completely emancipating the wife from her husband in all property and business relations, it seems to me that there is no longer a vestige of law, reason, or justice left upon which to base a claim for damages against the husband for the separate torts of the wife. Such rulings are, in my opinion, wrong in morals and a travesty upon justice.

NORTH CAROLINA SUPREME

COURT.

protection, which was sufficient to measure up to the duty that it owed.

Briscoe v. Henderson Lighting & P. Co. 148 N. C. 396, 19 L.R.A. (N.S.) 1116, 62 S. E. 600; Ferrell v. Dixie Cotton Mills, 157 N. C. 528, 37 L.R.A. (N.S.) 64, 73 S. E. 142, 3 N. C. C. A. 306; Greer v. Damascus Lumber Co. 161 N. C. 144, 76 S. E. 725; Benton v. North Carolina Public-Service Corp. 165 N. C. 354, 81 S. E. 448; 3 Shearm. & Redf. Neg. 6th ed. § 705, p. 1846; Richards v. Connell, 45 Neb. 467, 63 N. W. 915.

Clark, Ch. J., delivered the opinion of the court:

This is an appeal from a judgment of nonsuit. The plaintiff's intestate, a bright

W. C. STARLING, Admr., etc., of Alma little boy five years of age, was drowned

Starling, Deceased, Appt.,

A
PPEAL by plaintiff from a judgment of
the Superior Court for Chatham Coun-
ty granting a nonsuit in an action brought
to recover damages for the death of his in-
testate which was alleged to have been
caused by defendant's negligence. Reversed.
The facts are stated in the opinion.
Messrs. A. Jones & Son and Douglass
& Douglass for appellant.

in a reservoir on defendant's premises Sat-
urday afternoon, February 20, 1909. The
reservoir was about 50 feet around, with a
brick wall around it. It was 2 or 3 inches
from the top of the brick wall to the water
on the inside. Rev. Mr. Morris testified
that there had been a fence around the
reservoir, and that there was still “
a piece of one there at the time of the
drowning of the little boy, Alma Starling."
He testified that the fence was put up with
post-oak posts skinned and the bark taken
off, and slatted up between the posts, which
were 8 feet apart, with slats fastened with
small nails. These slats were 3 inches
apart at the bottom, and wider apart going
up, till they were 8 inches apart at the top.
The fence was 3 or 4 feet high. This
reservoir was close to the mill and near the
tenement houses of the operatives, and their
small children played around it almost
every day, rolling their hoops up and down
the platform on the side of the reservoir.
The father of Alma Starling, who was a
mill operative, lived 210 feet from the
reservoir. The witness testified further:

"The fence around the reservoir was decayed and rotted and falling down. Some There were several of it had fallen off. places around the reservoir where the slats Messrs. L. H. Allred, F. H. Brooks, and had fallen off, mostly on the side of the Manning & Kitchin, for appellee: street where they had hauled coal. The

Defendant had exercised reasonable care slats had fallen off at the bottom. There

Note. The doctrine of attractive nuisance is the subject of an extended note appended to Cahill v. Stone, 19 L.R.A. (N.S.) 1094. The specific question as to the applicability of the doctrine to ponds, reservoirs, waterways, etc., is discussed at page 1143 of that note, and in the later note to Thompson v. Illinois C. R. Co. 47 L.R.A. (N.S.) 1101. And see also later cases in this series, Riggle v. Lens, L.R.A. 1915A, 150; Romana v. Boston Elev. R. Co. L.R.A. 1915A, 510; and Coeur d'Alene Lumber Co.

v. Thompson, L.R.A. 1915A, 731. For the application of the doctrine to walls, fences, etc., see note to Coon v. Kentucky & I. Terminal R. Co. ante, 160.

Various other concrete aspects of that doctrine are treated in notes which may be found by consulting the Index to L.R.A. Notes, "Negligence," §§ 23, 23a.

Generally as to duty of property owner to trespassing children, see note to Walsh v. Pittsburg R. Co. 32 L.R.A. (N.S.) 559.

It does not admit of debate that the fact that such a dangerous place was unguarded by a secure fence where children of that age were allowed to play was culpable negligence on the part of the officers of the de-operatives of the mill, and were, so to fendant. The very fact that a fence had speak, on their own grounds. They were been put up, of itself, shows that these not trespassers certainly. There is much authorities were aware of the danger. To evidence that the fence was dilapidated, and permit it to become dilapidated was negli- direct testimony that the little boy went gence. It may be that, if the defendant through a hole in the fence near the ground. had put on evidence, a different state of There was evidence that his playmate told facts could have been shown or matters him that it was dangerous, but the child in excuse. But, upon the evidence before was too young to be guilty of contributory us, it was clearly error to grant a nonsuit. | negligence. This case has no resemblance to Briscoe The fact that a nonsuit had been formerv. Henderson Lighting & P. Co. 148 N. C. 396, 19 L.R.A. (N.S.) 1116, 62 S. E. 600. That decision was put upon the ground that the child was a trespasser and of an age