Crowell v. Crowell, (No. 442.)

• Decision Date: 08 December 1920
• Docket Number: (No. 442.)
• Court: North Carolina Supreme Court
• Parties: CROWELL. v. CROWELL.

105 S.E. 206

CROWELL.

v.CROWELL.

(No. 442.)

Supreme Court of North Carolina.

Dec. 8, 1920.

Walker and Hoke, JJ., dissenting.

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

Action by Lacy Crowell against W. J. Crowell. From judgment for plaintiff, defendant appeals. No error.

This is an action by the wife against the husband, alleging in her complaint the marriage and their living together as man and wife; that the defendant contracted a venereal disease, and that he "took advantage of his marital relation with said plaintiff and infected her with said vile and loathsome disease, " and asks for judgment "for actual and punitive damages." The defendant filed a written demurrer to the effect that, the complaint showing upon its face that the parties were man and wife prior to, and during all the time of the acts complained of, "the complaint does not contain facts sufficient to constitute a cause of action, " and, further, that said action is "both without law to warrant the maintenance thereof, and also against the public policy of the state." The court overruled the demurrer, and thereupon the defendant filed an answer, and upon the issues submitted the jury found that the defendant "wrongfully and recklessly infected the plaintiff with a loathsome disease, as alleged in the complaint, " and assessed the plaintiff's damages at $10,000, and, further, that at the institution of this action the defendant was about to dispose of his property and remove it from this state for the purpose of defrauding the plaintiff. The defendant excepted and appealed from overruling the demurrer; for refusal to set aside the verdict; for permitting the plaintiff to testify that the day before they separated she informed him that he had infected her with venereal disease; and to testify that she estimated the value of his property to be worth between $25,000 and $50,000, and that he was disposing of it very rapidly, getting her to join in deeds for most of the property, and that he told her that he was going to Cuba to make his home, and to set up a barroom. The defendant also excepted to the following paragraphs in his honor's charge:

"(1) If you find as facts from the evidence, and by its greater weight, that the defendant knew that he was infected with a foul and loathsome venereal disease, and thereafter, although having such knowledge, he wrongfully had sexual intercourse with the plaintiff, and thereby infected her with said disease, that he did so willfully and recklessly—that is, in reckless and wanton disregard of the plaintiff's rights, being indifferent to her welfare, and not caring whether he infected her or not—then you should answer the first issue, Yes.

"(2) She would be entitled to a just and reasonable compensation for whatever injuries she may have sustained as a necessary and proximate result of the defendant's wrong. She would be entitled to a just and reasonable compensation for any physical or mental suffering which followed as a necessary and proximate result of the defendant's wrong.

"(3) If you come to the issue of damages, you might, if in your discretion you saw fit, allow the plaintiff punitive damages."

Judgment and appeal.

Thaddeus A. Adams, of Charlotte, for appellant.

Stewart & McRae and John M. Robinson, all of Charlotte, for appellee.

CLARK, C. J. The defendant made no motion to nonsuit, and does not contend that there was not sufficient evidence to justify the verdict on the first issue:

"Did the defendant wrongfully and recklessly infect the plaintiff with a loathsome disease as alleged in the complaint?"

He submitted no requests for instructions. The exceptions to the evidence do not require discussion. Practically, the only point presented by this appeal is whether or not a cause of action is alleged in the complaint.

Paragraph 5 of the complaint alleges:

"That the defendant, by reason of his illicit relations with lewd and profligate women, contracted a venereal disease of a foul and loathsome character, and of a highly infectious and malignant nature, and although he well knew that he was so infected, and well knew the character of said disease and its dangerous and infectious nature, he concealed from the plaintiff the fact that he was so infected with said disease, and, on or about the ——day of ——, 1919, committed an assault and trespass upon the person of the plaintiff, and infected her with said foul and loathsome disease, injuring her and damaging as hereinafter set out."

There can be no question in this day that if the defendant had violently assaulted his wife and caused serious bodily injury to her person, and humiliation to her, she could maintain an action for damages against him. Even under the obsolete ruling of the courts (for it was never statutory) that a husband could chastise his wife with impunity, there was an exception that he was liable if he caused her serious bodily harm or permanent injury.

In State v. Monroe, 121 N. C. 677, 28 S. E. 547, 43 L. R. A. 861, 61 Am. St. Rep. 686, it was held that a druggist committed an assault when he dropped croton oil on a piece of candy and gave it to a third party. It was a far greater assault for the husband to communicate to his wife, while concealing from her the fact that he was infected therewith, a foul and loathsome disease, which has caused her serious bodily injury, and which the medical books hold to be a permanent injury of which she can never be entirely cured.

In State v. Fulton, 149 N. C. 485, 63 S. E. 145, the court held that the husband was indictable for wantonly and maliciouslyslandering his wife under Rev. § 3640, now C. S. § 4230, which made it indictable for "any one to slander an innocent woman." The objection was there taken that this did not apply to the husband by reason of the marriage relation, and that this had been so held in State v. Edens, 95 N. C. 693, 59 Am. Rep. 294. The court overruled State v. Edens, but held, by a divided court, that the defendant in the Fulton Case had a vested right to rely upon State v. Edens.

The plaintiff, who was 22 years of age and living with her father at the time of her marriage, was shown to be of good character at that time and ever since, by a minister of the Gospel and other witnesses, and even the defendant testified that—

"The plaintiff was a virtuous woman and was faithful to me during our married life and yet is so far as I know—I don't say otherwise."

He further testified that he was divorced from his first wife; that he committed adultery while living with his second wife, and furnished her with witnesses to prove it by which she got a divorce upon that ground; that he had had trouble in Gastonia on account of a woman, and says:

"Women have always been my trouble. Have recently been convicted of being drunk and carrying a pistol."

It was stated on the argument that the defendant has recently been convicted in Virginia under the White Slave Act, and sentenced to 2 years, and has also been convicted and sentenced in that state for abduction of a girl under 16, and that case is pending on appeal. The defendant also admitted on cross-examination that he has had venereal disease, and said:

"Sometimes it takes me longer to get over a case of gonorrhea than others. Sometimes it takes me a month, sometimes four months, and some times six months. * * * On Sunday after this suit was started I had a lewd woman in my automobile, and passed the plaintiff's house four times, I had my arm around the back of the seat."

Notwithstanding that the defendant had testified on the cross-examination that his wife was a virtuous woman, he intimated on being recalled that he was forced to marry her because she had become pregnant by him. The plaintiff testified that he did not have sexual intercourse with her until after the marriage, and that he tried to get her to procure a divorce from him, offering to furnish her with witnesses to prove his adultery while living with her. He did not deny this, and admitted that he had done this with bis second wife to enable her to get a divorce. The testimony of the plaintiff was that she had contracted the disease from her husband, and as to her humiliation and physical injury sustained thereby, and the physician testified that she was thus infected, and that his diagnosis was confirmed by clinical findings and by laboratory tests of another expert. The defendant testified that on one occasion:

"Plaintiff came to my office and could not get in; I was locked in, the woman in there got out."

As the plaintiff's counsel well said, aside from the question of assault, it is a well-settled proposition of law that a person is liable if he negligently exposes another to a contagious or infectious disease (Skillings v. Allen, 143 Minn. 323, 173 N. W. 663, 5 A. L. R. 922); a fortiori the defendant would be liable in the present case whether guilty of an assault or not, and independent of the fraud or concealment. In Schultz v. Christopher, 65 Wash. 496, 118 Pac. 629, 38 L. R. A. (N. S.) 780, and in Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287, 40 L. R. A. 757, 72 Am. St. Rep. 550 (cases cited by the defendant), the court recognized that the infection of the wife with venereal disease by the husband was a tort, but held that upon their statutes, which differ from those in this state, the wife could not sue her husband for a tort upon her person. But in Prosser v. Prosser (1920, S. C.) 102 S. E. 787, under a statute which is verbatim our revisal, § 408 (C. S. § 454), it was held that "under such statute a married woman can maintain an action in tort against her husband for an assault upon her, " holding that, while it was otherwise at common law, a proper construction of this statute "gives to a wife every remedy against her husband for any wrong she might suffer at his hands. More than this, a wife has a right in her person; and a suit for a wrong to her person is a thing in action; and a thing in action is property, and is her...