Bogen v. Bogen

• Decision Date: 08 January 1941
• Docket Number: 739.
• Citation: 12 S.E.2d 649,219 N.C. 51
• Parties: BOGEN v. BOGEN.
• Court: North Carolina Supreme Court

12 S.E.2d 649

219 N.C. 51

BOGEN v. BOGEN.

No. 739.

Supreme Court of North Carolina

January 8, 1941

This was a civil action brought by plaintiff against defendant for actionable negligence, alleging damage.The plaintiff is a citizen and resident of Columbus, Ohio, and this action is brought against her husband, also a citizen and resident of Columbus, Ohio, for personal injuries resulting from an automobile accident which occurred in Orange County, North Carolina, on or about August 17, 1937.The summons and copy of complaint were served upon Commissioner of Revenue of the State of North Carolina who mailed copies thereof to the defendant at his home in Columbus, Ohio.In apt time, the defendant, through his attorneys, made a special appearance in the cause and moved for a dismissal thereof upon the grounds that there had been no legal and valid service of process upon the person of the defendant, that the attempted service of process was defective and void and that the Superior Court had no jurisdiction of the person of either of the parties to the action.

The order of Harris, J., is as follows: "This cause coming on to be heard at this the June Term, 1940, of Orange Superior Court, upon motion of the defendant who entered a special appearance and moved to dismiss for want of jurisdiction and defective service of process on the defendant.Upon hearing the argument of counsel for plaintiff and defendant, it is ordered that the motion of the defendant be, and the same is hereby overruled.It is ordered that the defendant be, and he is hereby granted 45 days from date within which to answer, demur or otherwise plead.This the 19th day of June, 1940.W. C. Harris, Judge Presiding."

The defendant excepted, assigned error: (1) To the action of the Court in overruling defendant's motion to dismiss as set out in the record; (2) to the action of the Court in signing judgment as set out in the record, and appealed to the Supreme Court.

Bonner D. Sawyer, of Hillsboro, for plaintiff.

Cooper & Sanders and W. Clary Holt, all of Burlington, for defendant.

CLARKSON Justice.

The question involved: Where the statutory law of North Carolina prescribes the method and manner in which an action may be brought in this State and this Court has held the statute to be constitutional and where the provisions of the statute have been complied with, will this Court hold that the plaintiff is not entitled to the damages recovered on the ground that she is not a resident of this State?We think not.

There is no contention made by defendant that the statute as to service of summons on non-resident motorists was not complied with.N.C.Code 1939(Michie), Sec. 491 (a).

In Alberts v. Alberts,217 N.C. 443, 444, 8 S.E.2d 523 524, speaking to the subject: "In York v. York, 212 N.C 695, 699, 194 S.E. 486, 489, it was said: 'In this jurisdiction a wife has the right to bring an action for actionable negligence against her husband.Roberts v Roberts,185 N.C. 566, 567, 118 S.E. 9, 29 A.L.R. 1479;Shirley v. Ayers,201 N.C. 51, 55, 158 S.E. 840;Jernigan v. Jernigan,207 N.C. 831, 178 S.E. 587.We think that although plaintiff is a nonresident and the action transitory, the doors of the courts of this state are open to her to determine her rights.Howard v. Howard,200 N.C. 574, 158 S.E. 101;Steele v. Telegraph Co.,206 N.C. 220, 173 S.E. 583, 96 A.L.R. 361;Ingle v. Cassady, 208 N.C. 497, 498, 181 S.E. 562."

The Alberts Case, supra, cites many authorities from other jurisdictions sustaining the right of nonresidents to sue.

The defendant contends: "A non-resident married woman living with her husband is not entitled to the privileges of separate property rights as conferred upon resident married women by our State Constitution and Statutes enacted in connection therewith."We cannot so hold.

Article 10, Sec. 6, of the Constitution of the State of North Carolina, reads as follows: "The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female," etc.

In 1913, the Legislature enacted the following statutory provision, known as the "Martin Act": "The earnings of a married woman by virtue of any contract for her personal service, and any damages for personal injuries, or other tort sustained by her, can be recovered by her suing alone, and such earnings or recovery shall be her sole and separate property as fully as if she had remained unmarried."N.C. Code, 1939 (Michie), Sec. 2513.

In Crowell v. Crowell,180 N.C. 516, 105 S.E. 206, the Martin Act was upheld and a recovery had against a husband in tort for personal injuries by infecting her with a loathsome disease.At pages 523, 524 of 180 N.C., at page 210 of 105 S.E., it is said: "It must be remembered that there is not, and never has been, any statute in England or this state declaring that 'husband and wife are one, and he is that one.'It was an inference drawn by courts in a barbarous age, based on the wife being a chattel and therefore without any right to property or person.It has always been disregarded by courts of equity, and public opinion and the sentiment of the age, as expressed by all laws and constitutional provisions since, have been against it.The anomalous instances of that conception which still survive are due to courts construing away the changes made by corrective legislation or restricting their application.Whether a man has laid open his wife's head with a bludgeon, put out her eye, broken her arm, or poisoned her body, he is no longer exempt from liability to her on the ground that he vowed at the altar to 'love, cherish, and protect' her.We have progressed that far in civilization and justice.Never again will 'the sun go back ten degrees on the dial of Ahaz'.Isaiah, 38:8."

The Martin Act is broad and comprehensive as to the right of the wife to sue the husband in tort for personal injuries.The defendant contends that this right given by the Constitution, supra, is applicable to "any female in this State" and the Martin Act goes beyond the purview of the Constitution.This contention is too technical and attenuated.The plaintiff was injured by the negligence of her husband, as charged in the complaint, in Orange County, N. C., on or about August 17, 1937.Her cause of action arose in this State when she received the injury and at the time she was a "female in this State", and the Martin Act was applicable.The Constitution says nothing about non-residents in the State.May it be said to the glory of North Carolina that the courts of this State are open to all, rich and poor alike, and law and justice, tempered with mercy, are sought to be administered.The great writer Paul, in his Epistle to the Hebrews, Chap. 13, vs. 2, which has come down through the ages, said: "Be not forgetful to entertain strangers: for thereby some have entertained angels unawares."

For the reasons given, the judgment of the Court below is affirmed.

STACY, C. J., concurring.

SCHENCK, J., joins in concurring opinion.

BARNHILL, J., dissenting.

WINBORNE and SEAWELL, JJ., concur in dissent.

STACY Chief Justice (concurring in result).

Plaintiff sues to recover for injuries sustained in an automobile accident which occurred on HighwayNo. 70, in Orange County, 17 August, 1937.The action is transitory.It arose in this State.It is brought here.Hence, the law of North Carolina is to govern, both in its substantive and adjective features.Farfour v. Fahad,214 N.C. 281, 199 S.E. 521;Clodfelter v. Wells,212 N.C. 823, 195 S.E. 11;Ingle v. Cassady,208 N.C. 497, 181 S.E. 562;Wright v. Pettus,209 N.C. 732, 184 S.E. 494;Wise v. Hollowell,205 N.C. 286, 171 S.E. 82.

Plaintiff and defendant are residents of the State of Ohio.While not alleged in the complaint, it is stated in the case on appeal that they are husband and wife.Neither their nonresidency nor their relatonship is a bar to the action in this State.Alberts v. Alberts,217 N.C. 443, 8 S.E.2d 523;Steele v. Telegraph Co.,206 N.C. 220, 173 S.E 583, 96 A.L.R. 361;Howard v. Howard,200 N.C. 574, 158 S.E. 101.Here a wife may maintain an action against her husband for negligent injury.Roberts v. Roberts,185 N.C. 566, 118 S.E. 9...