Brown v. Brown

• Decision Date: 12 October 1897
• Citation: 27 S.E. 998,121 N.C. 8
• Parties: BROWN v. BROWN.
• Court: North Carolina Supreme Court

27 S.E. 998

121 N.C. 8

BROWN v. BROWN.

Supreme Court of North Carolina

October 12, 1897

Appeal from superior court, Pasquotank county; Bryan, Judge.

Action for damages by Lizzie Brown against J. R. Brown. From a judgment for defendant, plaintiff appeals. Reversed.

Furches J., dissenting.

Married woman, after abandonment by husband, can maintain action in her own name for tort.

E. F Aydlett, for appellant.

G. W Ward and Shepherd & Busbee, for appellee.

FAIRCLOTH C.J.

The sole question presented is whether a married woman, being abandoned by her husband, can maintain an action in her own name for a tort. This question has not been heretofore decided by this court. The case is here upon complaint and demurrer, and the allegations of the complaint are at present taken as true. The complaint alleges that the defendant, who is the father of her husband, has, by persuasion and numerous willful and unlawful acts, caused her husband to wholly abandon and neglect her, to her great damage, etc. The demurrer is grounded on a denial of her right to maintain this action in her own name without the joinder of her husband. The disabilities of married women at common law still exist, as to their person and property, except to the extent of changes by legislation in express terms, or by reasonable constructions of the same. These changes tend to relax the common-law rules, and must receive a reasonable construction in the spirit of their enactment. Our constitution and statutes have made very material and important changes in the status of married women in this state by extending protection to their person and separate property, and allowing them the privilege of free traders, suing in their own names, etc., in certain conditions. Code, § 1832, declares that every woman whose husband shall abandon her "shall be deemed a free trader *** so far as to be competent to contract and be contracted with," etc.; and this section has been held to be constitutional. Hall v. Walker, 118 N.C. 377, 24 S.E. 6. These privileges, as well as those found in Code, § 178, necessarily imply responsibilities and liabilities in certain cases. Finley v. Saunders, 98 N.C. 462, 4 S.E. 516, was an action for possession of land against a wife, whose husband had abandoned her, and it was held upon good authorities that the action could be maintained against her alone. Heath v. Morgan, 117 N.C. 508, 23 S.E. 489, was an action for personal property unlawfully withheld by the wife, whose husband had abandoned her, and could not be served with process, and it was held that the nonjoinder of the husband was no defense. If a wife then, whose husband has abandoned her, be sued in tort, she may set up a counterclaim for any damages arising out of the same "transaction," disclosed in the complaint; and, if her damages exceed those of the complainant, she is entitled to a judgment for the excess. Code, § 244; Bitting v. Thaxton, 72 N.C. 541; McKinnon v. Morrison, 104 N.C. 354, 10 S.E. 513. If, then, she can recover damages by way of counterclaim, which is only her cross action, we fail to see why she cannot do so by direct action. Upon these cases, and upon reason, we think she is entitled to prosecute her claim in this action. Error.

FURCHES J. (dissenting).

I do not agree with my brethren. At common law the plaintiff could not have brought and maintained this action. Pippen v Wesson, 74 N.C. 437. It is admitted in the opinion of the court that the...