Carmichael v. Carmichael

• Decision Date: 09 July 1936
• Docket Number: 25254.
• Citation: 187 S.E. 116,53 Ga.App. 663
• Parties: CARMICHAEL v. CARMICHAEL
• Court: Georgia Court of Appeals

187 S.E. 116

53 Ga.App. 663

CARMICHAEL v. CARMICHAEL

No. 25254.

Court of Appeals of Georgia, First Division

July 9, 1936

Error from Superior Court, Polk County; J.R. Hutcheson, Judge.

Action by Mrs. Rosa Carmichael against W.W. Carmichael. Judgment for the defendant, and plaintiff brings error.

Affirmed.

W.B. Mebane, of Rome, for plaintiff in error.

Mundy & Mundy, of Cedartown, for defendant in error.

BROYLES Chief Judge.

1. At common law a husband and wife, in legal fiction, are one person; and the common law is of force in Georgia, except where changed by a statute of the state; and under the common law neither could maintain against the other a civil action based on a tort; and that holding of the common law has not been abrogated by any statute of this state. Heyman v Heyman, 19 Ga.App. 634, 92 S.E. 25; Central of Georgia Ry. Co. v. Cheney, 20 Ga.App. 393, 93 S.E. 42; Code, § 53-501; 65 C.J. p. 73, § 119; Eddleman v. Eddleman (Ga.App.) 186 S.E. 154; Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, 30 L.R.A. (N.S.) 1153, 21 Ann.Cas. 921.

2. Under the common law all rights of action by a wife for antenuptial wrongs committed by her husband are extinguished by their subsequent marriage; and this is true though she and her husband may be living separately and apart from each other when her suit is brought. Henneger v. Lomas, 145 Ind. 287, 44 N.E. 462, 32 L.R.A. 848. This principle of the common law, not having been abrogated by any statute of Georgia, is still of force in this state.

3. In the instant case Mrs. Rosa Carmichael brought suit against her husband, W.W. Carmichael, for personal injuries. Her petition shows that at the time of the infliction of the injuries both she and Carmichael were unmarried; that subsequently they married each other and lived together for about one year, when they separated; that they were living apart when her suit was brought, but no divorce had been obtained, and the relation of husband and wife existed between them at that time. The court dismissed the case on general demurrer and the plaintiff excepted. Under the rulings set forth in the preceding notes, the court properly sustained the general demurrer. The cases cited in the brief of counsel for the plaintiff in error are distinguished by their particular facts from this case, and are not in conflict with the ruling here made.

Judgment affirmed.

MacINTYRE and GUERRY, JJ., concur.

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