Courts, § 84 power to reject legislative view of public policy.

7. When the legislative purpose has been declared in plain and unmistakable language, it is not within the province of the court to interpose contrary views of what the public need demands, although as individuals the members of the court may hold convictions contrary to those of the legislature.

[See 6 R. C. L. 109; 2 R. C. L. Supp. 20; 4 R. C. L. Supp. 383; 5 R. C. L. Supp. 320, 321; 6 R. C. L. Supp. 356.] On Petition for Rehearing. Contribution, § 1 foundation of.

8. The right of contribution is founded upon principles of equity and natural justice, and does not spring from contract.

[See 6 R. C. L. 1036; 2 R. C. L. Supp. 269; 5 R. C. L. Supp. 386; 6 R. C. L. Supp. 425.] Contribution, § 1 discharge of excessive share of common obligation. 9. The discharge by one common obligor of more than his fair share of the common liability is what gives rise to the right of contribution, whether the common obligation is imposed by contract or grows out of tort. [See 6 R. C. L. 1043; 2 R. C. L. Supp. 270.]

where the right of contribution is claimed is in its nature the same whether the action is founded upon contract or sounds in tort.

Contribution, § 11 joint debtors action by one against others.

11. One joint tort-feasor has no right of action against another joint tort-feasor until he has discharged more than his equitable share of the common obligation.

14. The partners of the husband of one injured by negligence for which the partners are sought to be held liable have a right to bring the husband into the action for the purpose of determining their rights as to contribution, under the provisions of a statute giving such right to a defendant who shows that, if he is held liable, he will have a right of action against a third person not a party to the action, who, in the discretion of the court, may be made a party defendant.

Statement by Rosenberry, J.: The plaintiff, Mathilda J. Wait, is the wife of George E. Wait, hereinafter referred to as the husband. The defendants Pierce and Borenz are copartners engaged in operating a garage business, and will herein

after be referred to as the partners. The plaintiff in her complaint charged the partners with liability for certain injuries sustained by her by reason of the negligent operation by an employee of the partners of an automobile. The partners, upon an

allegation that the husband was jointly liable with them, moved that the husband be made a party defendant. The motion was granted. The partners thereupon filed a cross-complaint and prayed that if it be found that the partners and husband were jointly liable, the partners have judgment against the husband for one-half of the amount awarded to the plaintiff and paid by the partners. To the cross-complaint of the partners the husband demurred on the ground that the cross-complaint does not state facts. sufficient to constitute a cause of action.

The court held that the wife could not maintain an action against the husband for injuries to her sustained by reason of his negligence, that the partners therefore would not be entitled to contribution, and sustained the demurrer. From the order sustaining the demurrer, the partners appeal to this court.

Messrs. Bouck, Hilton, Kluwin, & Dempsey and Fawsett, Smart, & Shea for appellants.

Messrs. Quarles, Spence, & Quarles, Arthur B. Doe, and L. J. Burlingame, for respondent:

The impleaded

defendant, G. E. Wait, is under no liability to his wife, because a wife cannot sue her husband for a negligent tort.

21 Cyc. 1519; 13 R. C. L. 1394; Thompson v. Thompson, 218 U. S. 611, 54 L. ed. 1180, 30 L.R.A. (N.S.) 1153, 31 Sup. Ct. Rep. 111, 21 Ann. Cas. 921; Peters v. Peters, 156 Cal. 32, 23 L.R.A. (N.S.) 699, 103 Pac. 219; McKendry v. McKendry, 131 Pa. 24, 6 L.R.A. 507, 18 Atl. 1078; Cooley, Torts, 227; Plotkin v. Plotkin, Del., 125 Atl. 455; Peters v. Peters, 42 Iowa, 182; Maine v. James Maine & Sons Co. 198 Iowa, 1278, 37 A.L.R. 161, 201 N. W. 20; Kalfus v. Kalfus, 92 Ky. 542, 18 S. W. 366; Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589; Barton v. Barton, 32 Md. 214; Bandfield v. Bandfield, 117 Mich. 80, 40 L.R.A. 757, 72 Am. St. Rep. 550, 75 N. W. 287; Strom V. Strom, 98 Minn. 427, 6 L.R.A. (N.S.) 191, 116 Am. St. Rep. 387, 107 N. W. 1047; Austin v. Austin, 136 Miss. 61, 33 A.L.R. 1388, 100 So. 591; Rogers v. Rogers, 265 Mo. 200, 177 S. W. 382;

Sargeant v. Fedor, N. J. L., 130 Atl. 207; Schultz v. Schultz, 89 N. Y. 644; Newton v. Weber, 119 Misc. 240, 196 N. Y. Supp. 113; Perlman v. Brooklyn City R. Co. 117 Misc. 353, 191 N. Y. Supp. 891; Small v. Small, 129 Pa. 366, 18 Atl. 497; Oken v. Oken, 44 R. I. 291, 117 Atl. 357; Lillienkamp v. Rippetoe, 133 Tenn. 57, L.R.A.1916B, 881, 179 S. W. 628, Ann. Cas. 1917C, 901; Sykes v. Speer, Tex. Civ. App. 112 S. W. 422; Wilson v. Brown, Tex. Civ. App., 154 S. W. 322; Keister v. Keister, 123 Va. 157, 1 A.L.R. 439, 96 S. E. 315; Schultz v. Christopher, 65 Wash. 496, 38 L.R.A. (N.S.) 780, 118 Pac. 629; Faris v. Hope (C. C. A. 2d) 298 Fed. 727.

In case the husband could be considered as an independent tort-feasor he could only be impleaded as a party defendant on the theory that, if plaintiff recovered against defendant, he would be subrogated to plaintiff's right against the impleaded defendant.

Fisher v. Milwaukee Electric R. & Light Co. 173 Wis. 57, 180 N. W. 269.

A statute creating equality between the sexes, irrespective of whether they are married or single, cannot be construed to give a right to a wife which does not exist in the husband.

Austin v. Austin, 136 Miss. 61, 33 A.L.R. 1388, 100 So. 591; Peters v. Peters, 156 Cal. 32, 23 L.R.A. (N.S.) 699, 103 Pac. 219; Newton v. Weber, 119 Misc. 240, 196 N. Y. Supp. 113; Woltman v. Woltman, 153 Minn. 217, 189 N. W. 1022, 22 N. C. C. A. 418.

If one spouse is not liable to the other directly for a negligent act, that spouse cannot be impleaded as a party defendant, because he is not under a common obligation with the principal defendant to the plaintiff.

Frankfort General Ins. Co. v. Milwaukee Electric R. & Light Co. 169 Wis. 533, 173 N. W. 307.

Rosenberry, J., delivered the opinion of the court:

Two questions are presented upon this appeal: First, under the law of this state, may a wife maintain an action against her husband for injuries to her person, proximately caused by the negligence of the husband? Second, may a third party maintain an action for contribution for injuries caused by the

joint negligent act of the third party and husband, even though the wife cannot maintain an action directly against the husband on account of the injuries sustained by her?

The first and primary question in this case has never been answered by this court. Its answer involves, not only a consideration of the law, but questions of public policy which are vigorously urged upon our attention. We fully recognize the importance of a decision in this case and the fundamental character of the questions involved. We have been greatly aided in our consideration of this question by the able and exhaustive briefs which have been filed upon both sides.

We may begin our consideration by a reference to the Constitution of the state of Wisconsin, § 13, art. 14, which provides: "Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this Constitution, shall be and continue part of the law of this state until altered or suspended by the Legislature."

It is fully and freely conceded that at the common law neither the husband nor the wife could maintain an action against the other for damages by reason of any wrong done by the one to the other. The Constitution was adopted in 1848. The Statutes of 1849 contain no provision modifying the commonlaw disabilities of married women. "An act to provide for the protection of married women in the enjoyment of their own property" (Laws 1850, chap. 44), was adopted at the second session of the Legislature. This enactment was carried forward and became §§ 1-3; chapter 95 of the Revised Statutes of 1858 became §§ 2340-2342 of the Revised Statutes of 1878; and the sections were continued in the statutes of 1898, and are now §§ 246.01-246.03 of the Wisconsin Statutes of 1925. These sections conferred upon the wife the right to hold real estate and personal prop

erty free from control by the husband, and as amended permitted the husband and wife to contract with reference to the property held by her with the same legal effect as if the transaction were between other persons.

By § 3 of chapter 155 of the Laws of 1872, a married woman was given the right to sue in her own name and have all the remedies of a single woman with respect to her earnings, and she was made liable to be sued as if single for the recovery of her antenuptial debts, and execution might be levied on any judgment against her as against other judgment debtors except that an execution against her person could not issue.

Section 3, chap. 155 of the Laws of 1872, was carried into the Revised Statutes of 1878 as § 2345, and is the basis of the present statute (§ 246.07). It was amended by chapter 99 of the Laws of 1881 by adding thereto the following: "And any married woman may bring and maintain an action in her own name for any injury to her person or character the same as if she were sole, and any judgment recorded in such action shall be the separate property and estate of such married woman, provided that nothing herein contained shall affect the right of the husband to maintain a separate action for any such injuries as now provided by law."

Determination of the principal question presented by the record in this case depends upon the interpretation given to the amendment of 1881.

It has been held over and over again that the intent of the Legislature when discovered must control struction-inin the interpreta- tent of legistion of statutes.

Statutes-con

lature.

Did the Legislature intend by the enactment of chapter 99 of the Laws of 1881 to confer upon a married woman the right to bring an action against her husband for any injury to her person or charac

-intent ascer tained.

ter the same as if she were sole? The intent of the Legislature is to be determined first by the language which the Legislature used in conferring the right. It is conceded that this language is broad enough, if the language be given its natural and ordinary meaning, to confer such a right. If she were sole, she could maintain an action "for any injury to her person or character" against any person whose wrongful act caused the injury. Under the amendment can a married woman do so if the wrongdoer happens to be her husband? It is quite apparent she can unless something in the nature of an exception be interpolated into the statute. It must be interpolated, because the statute itself contains no exception. It is argued very forcibly that the Legislature could not have had in mind in the enactment of the statute the possibility that under its terms a wife might bring an action against her husband for tort, first, because no such right existed at common law, and that the statute is by its terms in derogation of the common law and therefore to be strictly construed; second, that the right of a wife to sue her husband for tort or the right of the husband to sue the wife for tort is so contrary to the fundamental principles of the common law that had that situation been present in the minds of the legislators it is not to be supposed that the Legislature would have enacted the statute; third, that the conferring of such a right upon the wife tends to promote family discord and so strike a blow at the family relation, which is the foundation of our social order, and for that reason it should be held that the right is not conferred by the general language of the act.

From an early day this court has held that statutes conferring upon married women the rights which they possessed before their marriage was not so much the creation

of a power which a married woman never possessed as a restoration of power which she had as a feme sole and which she lost by her marriage. Krouskop v. Shontz (1881) 51 Wis. 204, 217, 37 Am. Rep. 817, 8 N. W. 241; Carney v. Gleissner (1885) 62 Wis. 493, 22 N. W.

rights on

women -liberal con

735. Such statutes conferring are to be liberally married construed. Krous- struction. kop v. Shontz, su

pra; Houghton v. Milburn (1882) 54 Wis. 554, 11 N. W. 517, 12 N. W. 23; Shanahan v. Madison (1883) 57 Wis. 276, 15 N. W. 154.

Under the statute conferring upon a married woman the right to hold real and personal property and to sue and to be sued in relation thereto, it was held that a husband could maintain an action of replevin against the wife. The court said: "The language of our statute is plain. The wife may 'be sued in respect to her separate property or business,' and in respect thereto has 'all the remedies of an unmarried woman.' The husband is nowhere excepted from the operation of the statute, and we have no right to except him." Carney v. Gleissner, 62 Wis. 493, 498, 22 N. W. 735, 737.

Second. Courts cannot be charged with any lack of respect for the common law. No doubt the departure from some of its fundamental principles has been accompanied by loss rather than gain. On the other hand, its greatest admirer cannot claim perfection for it. At common law the personality of the wife was merged in that of the husband, and there existed a legal unity. That conception grew out of conditions which no longer exist, and rested, in the final analysis, upon a conception which made the wife little more than a chattel of the husband. The rigor of the common law in this respect has been greatly relaxed, and both by decision and statute married women have gradually attained in law a place of equality with the husband in the marital