Peters v. Peters , 42 Iowa 182 ( 1875 )

Day, J.

If this action can be maintained, it is because of the provisions of our statute.

Whilst it must be admitted that very radical changes have been made in the relation of husband and wife, still it seems to us that these changes do not yet reach the extent of allowing either husband or wife to sue the other for a personal injury committed during coverture.

The sections of the Code mainly relied upon by appellant for the accomplishment of the results which, it is claimed, have been effected, are 2204 and 2211.

Section 2211 is as follows: “A wife may receive the wages of her personal labor and maintain an action therefor in her own name, and hold the same in her own right; and she may prosecute and defend all actions at law or in equity, for the preservation and protection of her rights and property, as if unmarried.”

The following is section 2204: “Should either the husband ■ or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried.”

It is evident that section 2211 refers to and authorizes actions against parties other than the husband; for if this section allows an action generally against the husband, it covers and embraces more than is included in section 2204, and that section is rendered useless and meaningless. Whatever right of action exists against the husband must, therefore, be found in Sec. 2204. This section is limited to actions for property or rights growing out of the same. But in this connection appellant cites Musselman v. Galligher, 32 Iowa, 383, which approves Chicago, Burlington & Quincy R. Co. v. Dunn, 52 Ill., 260, holding that a right to sue for an injury is property, and that where this right of action exists in favor of the wife, it is her property, for which she may sue. It is claimed that, from this decision and the section above quoted, the right to maintain this action necessarily follows. But it is quite evident that this course of reasoning assumes the very thing to be established. Sec. 2204 authorizes the wife to maintain an action against her husband for the recovery of her property; and Musselman v. Galligher recognizes the doctrine that when a right to sue for an injury exists, that right is property. Before any conclusion favorable to the appellant can be drawn from these premises, the right of the wife to maintain an action against the husband for a tort must be either admitted or assumed. In other words, the argument involves the admission or assumption of the thing undertaken to be proved. The argument, fully expressed, is as follows: The wife may sue the husband for her property; when a right exists to sue for a tort, that right is property; the right of the wife to sue the husband for a tort exists; therefore the wife may maintain an action against the husband for a tort; or, the wife may sue the husband for a tort, because the wife has a right to sue the husband for a tort.

We are satisfied that the statute contains no provisions which authorize this action, and that the demurrer was properly sustained.

Affirmed.