Crowell v. Crowell

• Decision Date: 09 March 1921
• Docket Number: 442.
• Citation: 106 S.E. 149,181 N.C. 66
• Parties: CROWELL v. CROWELL
• Court: North Carolina Supreme Court

106 S.E. 149

181 N.C. 66

CROWELL v. CROWELL

No. 442.

Supreme Court of North Carolina

March 9, 1921

On petition for rehearing. Petition dismissed.

For former opinion, see 180 N.C. 516, 105 S.E. 206.

T. A Adams, of Charlotte, for petitioner.

STACY J.

Defendant's petition to rehear, filed in this cause, was referred to the writer, under rule 53 of the court (95 S.E. vii). It is not customary to assign any reasons for denying a petition to rehear; but, on account of the mooted questions involved and the wide difference of opinion among members of the bench and bar, I deem it not amiss to insert this memorandum in the record as an expression of my individual views.

It will be remembered that plaintiff, a married woman, brings this action against her husband, alleging that he wrongfully and recklessly infected her with a loathsome disease. It is conceded that prior to the enactment of chapter 13, Public Laws 1913, now C. S. 2513, this suit was not maintainable but the act of 1913 provides:

"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."

The burden of petitioner's brief is that this statute creates no substantive right, that it merely changes the rule of procedure, and that it applies only to such causes of action as could be maintained by the husband and wife as coplaintiffs before the law took effect. This position is supported by eminent authorities; but to my mind the reasons are not conclusive.

At common law the defendant's demurrer would have been sustained, because his wife could not maintain such an action suing alone; but his conduct would have been no less hurtful and injurious to her. His only defense now is that he and the plaintiff are one by reason of the marriage tie. Shylock in Shakespeare's Merchant of Venice, as he stood in court insisting upon the terms of his bond, was in a better position than the defendant in this case. There nothing had been done to increase the burdens and hazards of the party obligated, but not so here. In the case at bar the strenuous demand for what is called the defendant's legal right forces plaintiff's counsel to play the role of Portia. A mere rule of procedure, based upon the unity of husband and wife, ought not to prevail over plaintiff's claim founded on a willful and deliberate wrong, especially in the face of a statute changing such rule. Surely the plaintiff with propriety can say to the defendant:

"If you claim immunity from suit under the common law by reason of our unity as husband and wife, you must not wrongfully and recklessly commit a tort upon my person, for I can now maintain an action for such a tort--our unity no longer being a bar to my suing alone--and your protection in such instance is taken away by the statute."

To hold otherwise would seem to forsake the substance for the shadow. Defendant forgets that his rights in the premises are relative, and not absolute.

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